WLSX and Secretary, Department of Home Affairs - [2022] AATA 533

WLSX and Secretary, Department of Home Affairs [2022] AATA 533 (14 March 2022)
Division:FREEDOM OF INFORMATION DIVISION
File Number(s): 2020/8640
Re:WLSX
APPLICANT

AndSecretary, Department of Home Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:14 March 2022
Place:Sydney

The Tribunal sets aside the decision under review and substitutes a decision that the record of the Applicant’s personal details be amended pursuant to section 50(1) of the Freedom of Information Act 1982 to record the Applicant’s date of birth as 11 September 1983.
................................[SGD]........................................
Chris Puplick AM, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION – amendment of records – Respondent to establish whether decision not to amend records is justified – Respondent to establish whether Tribunal should give adverse decision to the applicant – whether date of birth is correct – whether Tribunal can establish correct date of birth – whether it is appropriate to amend to most correct approximation – decision set aside and substituted
LEGISLATION
Freedom of Information Act 1982 (Cth)
Australian Citizenship Act 2007 (Cth)
CASES
Abraham and Minister for Immigration and Citizenship [2007] AATA 1090
Grass and Secretary, Department of Home Affairs (Freedom of Information) [2019] AATA 1415
Green v Minister for immigration and Citizenship [2008] 100 ALD 346
HFNB and Secretary, Department of Immigration and Border Protection (Freedom of Information) [2017] AATA 870
K and Department of Immigration and Citizenship [2012] AICmr 20
Kaba and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2105 at [62]
Miskovic and Department of Immigration and Citizenship [2009] AATA 76
Ndonya and Minister for Immigration and Citizenship [2009] AATA 940
Neeson v The Chief Executive Officer of Centrelink [2006] FCA 1107
QVFT and Secretary, Department of Immigration and Citizenship [2021] AATA 501
Re Cox and Department of Defence [1990] 20 ALD 499
Re Prinn and Department of Defence [2016] 152 ALD 162
Rezaee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5606 at [88]
Tang and Minister for Immigration, and Multicultural and Indigenous Affairs [2004] AATA 410
Vann Lee and Minister for Immigration and Citizenship [2013] AATA 532
SECONDARY MATERIALS
Alexander Downer MP: Diplomatic Appointment: High Commissioner to Ghana, Press Release 18 May 2004.
Australian National Audit Office: Records Management in the Australian Public Service (27 June 2012).
National Archives of Australia: ASIO records – accuracy of personal information, : Guidelines under the Freedom of Information Act (version 1.4, January 2018).
Senate Standing Committee on Constitutional and Legal Affairs: Freedom of Information (AGPS, Canberra, 1979).
UK Home Office: Country Policy and Information Note – Ghana – Background information, including internal relocation (version 1.0, September 2020)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
14 March 2022
PROCEEDINGS

WLSX (the Applicant) was born in Accra, Ghana and is now an Australian citizen. On his application, and by consent of the parties, he has been granted a pseudonym because of the nature of his employment.
The issue before the Tribunal concerns the date of his birth.
The Applicant claims to have been born on a certain date which is different from the two separate dates which are recorded in the files of the Department of Home Affairs (the Respondent).
Under the provisions of the Freedom of Information Act 1982 (Cth) (the Act/FOIA) the Applicant has sought to have the Department amend its records to record his date of birth as being a certain date, which he claims to be the correct date, and the Respondent has declined to do so.
The Applicant has made several requests to the Respondent for the amendment of the relevant records but for the immediate purposes of this determination it need only be recorded that:
·On 17 June 2020 the Applicant made an application for the amendment of relevant records;
·the Respondent refused that request on 23 June 2020;
·the Applicant made an application to the Office of the Australian Information Commissioner pursuant to the Act seeking to have the Commissioner exercise her powers to order an amendment of the relevant records;
·after consideration of the application and discussions with the Respondent a delegate of the Commissioner, on 23 December 2020, determined not to make a decision on the application but rather, under s. 54W(b) of the Act, to refer the matter directly to this Tribunal for determination;
·the matter was heard by the Tribunal on 28 February 2022 with the parties appearing in person.
LEGISLATIVE FRAMEWORK
In 1979 the Senate Standing Committee on Constitutional and Legal Affairs handed down its report on Freedom of Information. This report was into the proposed Freedom of Information Bill 1978 and aspects of the Archives Bill 1978.[1]
[1] Senate Standing Committee on Constitutional and Legal Affairs: Freedom of Information (AGPS, Canberra, 1979). Disclaimer: the Senior Member presiding on this matter was, at the time, a member of the Australian Senate and a member of this Committee.
In Chapter 24 of that Report (headed “Privacy”) the Senate Committee recommended that any proposed Freedom of Information legislation contain a robust system for Australian citizens or permanent residents to be able to request the amendment of records held about them as individuals which contained any information which was “inaccurate, or is incomplete and would give a misleading impression” [2] about them. It is of note that this recommendation was cast within the general framework of a need to enhance and protect personal privacy, rather than focussed upon the integrity of government records. The right of correction was to apply to:
[p]ersonal information of a factual nature contained in a document which is public or has been released or obtained under Freedom of Information legislation.[3]
[2] Ibid at 24.17(c).
[3] Ibid at 24.17(a).
The Committee also recommended that where a request for a record to be amended had been refused, the applicant in question should have the right to place on the official record a “concise statement of the reasons for his (sic) disagreement.”[4]
[4] Ibid at 24.17 (f).
These recommendations eventually found their way into the Freedom of Information Act 1982 relevantly as follows:
Part V—Amendment and annotation of personal records
48 Application for amendment or annotation of personal records
Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b) that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister.
49 Requirements of an application for amendment
An application for amendment must:
(a) be in writing; and
(b) as far as practicable, specify:
(i) the document or official document containing the record of personal information that is claimed to require amendment; and
(ii) the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(iii) whether the information is claimed to be incomplete, incorrect, out of date or misleading; and
(iv) the applicant’s reasons for so claiming; and
(v) the amendment requested by the applicant; and
50 Amendment of records
(1) Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b) the information is incomplete, incorrect, out of date or misleading; and
(c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister may amend the record of information.
(2) The agency or Minister may make the amendment:
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i) specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii) in a case where the agency or Minister is satisfied that the information is out of date—setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.
51 Annotations of records etc. following unsuccessful applications for amendments of records
(1) Where an agency or Minister decides not to amend a document or official documents wholly or partly in accordance with an application under section 48, the agency or Minister must:
(a) take such steps as are reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and
(b) subject to subsection (2), annotate the document or official document concerned by adding to it the statement so provided.
…
61 Onus
(1) In proceedings under this Part for review of a decision in relation to a request, or in relation to an application under section 48 (a personal records application):
(a) if an agency or a Minister applied for the review--the agency or Minister has the onus of establishing that the decision is not justified, or that the Tribunal should give a decision adverse to the applicant in relation to the request or the personal records application; or
(b) if the applicant in relation to the request or the personal records application applied for the review--the agency to which, or the Minister to whom, the request or personal records application was made has the onus of establishing that the decision is justified, or that the Tribunal should give a decision adverse to the applicant.
CERTAIN AGREED FACTS
Before getting to the nub of the dispute between the parties, there are certain matters which not in dispute:
(a)The Applicant was born in Accra, Ghana,[5]
(b)The Applicant’s father is CKA who was born in Ghana and is now an Australian citizen,[6]
(c)The Applicant’s mother is VA and she is a Ghanaian citizen resident there,[7]
(d)Since 1986 PKA (until he affected a change of arrangements in August 1994) was the legal guardian of the Applicant and several of his siblings,[8]
(e)On 16 November 1993 the Applicant was granted a passport (No T 418153) by the Ministry of Foreign Affairs, Ghana,[9]
(f)On 3 June 1994 the Applicant lodged an application for migration to Australia via a Child (Permanent) Class AH subclass 101 visa[10] which was granted on 20 March 1996,[11]
(g)On 16 May 1996 the Applicant arrived in Australia,[12]
(h)On 2 August 2002 the Applicant made an application for a grant of Australian citizenship[13] which was granted on 17 February 2003.[14]
[5] Tribunal documents (T documents) at 157.
[6] Ibid at 125.
[7] Ibid at 121.
[8] Ibid at 136.
[9] Ibid at 132.
[10] Ibid at 94.
[11] Ibid at 141.
[12] Ibid at 1158.
[13] Ibid at 157.
[14] Ibid at 57.
THE MATTER IN DISPUTE
Records held by the Respondent indicate that the Applicant’s date of birth is 19 September 1979 although there are some records which give that date as 19 June 1979. This latter date appears on a Certified True Copy of Entry in Register of Births issued by the Registrar of Births for Mamobi, Accra, Ghana dated 27 January 1988.[15]
[15] Ibid at 113.
The Applicant claims that his correct date of birth is 11 September 1983.[16]
[16] Ibid at 17.
The key element of the Applicant’s immediate claim is a reissued Birth Certificate from the Registrar of Births in the Tesano District of Accra. It was issued on 18 January 2011 and records that the Applicant was born on 11 September 1983 at the Achimota Hospital in Accra.[17]
[17] Ibid at 180. The certificate was issued on 18 January 2011 following registration on 17 January 2011.
The provenance of all of the records in question will be discussed below.
The Applicant has complied with the requirements of ss 48 and 49 of the Act and under the provisions of s 61(1)(b) the onus lies upon the Respondent to demonstrate that the decision under review is justified, or that the Tribunal should give a decision adverse to the applicant.
COMPETING DOCUMENTATION AND CLAIMS: ESTABLISHING PRINCIPLES
It is a matter of the highest degree of public policy that records maintained by government agencies and departments should be of the highest level of integrity and accuracy. It is also vital that information held about individuals should meet exacting standards of accuracy, completeness and timeliness as a failure to meet such standards may have seriously negative impacts upon the rights, lives and entitlements of individuals.
The management of government records, including issues related to their integrity, is a matter governed by a number of Commonwealth statutes including, inter alia, the Public Service Act 1999, Archives Act 1983, Crimes Act 1914, Freedom of Information Act 1982, Privacy Act 1988 and the Electronic Transactions Act 1999.[18] The Australian National Audit Office examines and reports regularly on compliance with accurate record keeping and information management.[19]
[18] Australian National Audit Office: Records Management in the Australian Public Service (27 June 2012).
All of this legislation stresses the necessity for government records to be accurate, complete, relevant and timely.
This extends even to the management of ASIO (Australian Security Intelligence Organisation) records where an individual may not request them to be altered even if they are incomplete, incorrect, misleading or out of date but may (via the National Archives) have a written statement identifying the information they believe to be inaccurate included in the relevant file.[20]
[20] National Archives of Australia: ASIO records – accuracy of personal information, >
It is not surprising that, from time to time, records purporting to deal with the same issue (for example, a person or an event) may reveal discrepancies, inaccuracies or even direct contradictions.
It is to deal with and manage these contradictions that the relevant sections of the Act come into operation.
The purpose of allowing a record to be amended is set out in section 50(2)(a) which provides (emphasis added)
(2) The agency or Minister may make the amendment
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading;
It is to be noted that the purpose is to ensure that the record is “correct” which the Macquarie Dictionary defines as (inter alia) meaning “conforming to fact or truth, free for error, accurate”.[21]
[21] Macquarie Dictionary, Seventh edition.
The Applicant cites a 2012 decision by the then Freedom of Information Commissioner in which the Commissioner states:
It is obviously important that government records are as accurate as possible, and that any alterations are justifiable. If the exact date of a person’s birth cannot be established, an agency should record the closest possible approximation to the correct date. When an agency receives an application for amendment of personal records, it is not necessary that the agency be satisfied than the date proposed by the applicant is correct before it can amend its record under s 50. It is enough that:
the date proposed by the applicant is more likely to be the correct date, or to be closer to the correct date, than the date currently recorded, and
there is no other date that is more likely to be correct.
As noted above, the onus is on the agency to demonstrate that, on the balance of probabilities, the current record is not incorrect or that it should not be amended.[22]
[22] K and Department of Immigration and Citizenship [2012] AICmr 20 at [39] Footnotes omitted.
The Commissioner adds in a footnote:
It would be open to an agency to amend a record, under s 50(1), by changing it to a date different to both the currently-recorded date and the date proposed by the applicant, provided that the new date is more likely to be correct than any other.[23]
[23] Ibid at footnote [11].
It should be noted that in this case the Commissioner was dealing with an applicant who was a refugee from the civil war in Sudan who had been in a refugee camp for many years and had no original documentation recording her birth and where all relevant evidence was derived from the oral testimony of family members.
The Commissioner said:
I have found that the Department’s record of the applicant’s date of birth is incorrect, but it is impossible to determine the applicant’s date of birth with any accuracy.[24]
[24] Ibid at [33].
He then went on:
The Department acknowledged that the currently recorded date is possibly incorrect, but took the view that it could not amend its records unless the alternative date produced by the applicant was likely to be correct. This approach is incorrect.[25]
[25] Ibid at [34].
In K the Commissioner indicated that agencies should be alert to amending records especially where failure to do so might result in practical discrimination against an applicant.[26] In this instance the Commissioner was faced with evidence showing at least four recorded or possible dates of birth for the Applicant, however since, “none of those dates is more likely to be correct than the one proposed by the applicant”[27] the Commissioner ordered the amendment of the records to show her birth date as being that which she herself claimed.
[26] Ibid at 38.
[27] Ibid at [40].
In a similar case involving an application for a change of date of birth in the records, this Tribunal dealt with an applicant from Cambodia who had fled that country’s murderous civil war and noted that “it is not uncommon for refugees and other migrants to Australia not to know their exact birth dates.” [28] The Tribunal went on to say:
It would seem to me that, if Mr Tang was born on a date uncertain but in 1939, it would be preferable that his official records show him as born in 1939 rather than on a date in 1943 that is entirely incorrect.[29]
[28] Tang and Minister for Immigration, and Multicultural and Indigenous Affairs [2004] AATA 410 at [24(j)].
[29] Idem.
In this case, the Tribunal was satisfied that the evidence relied upon by the Department to establish a date of birth for the applicant was flawed[30] and that other evidence suggested his birth at an earlier date, albeit that even the exact date in that year was uncertain. Its decision was to amend the record to show that the applicant “was born in 1939 on an uncertain date.”
[30] Ibid at [6(c)].
In the matter of Ndonya the Tribunal again confronted a case of an applicant who had fled the civil war in Sudan. It was obvious that the departmental record of his date of birth was incorrect because it was recorded as “00/00/1988”. There was no way of knowing what this meant – it could have been “01/01/1988” or just as likely “31/12/1988”.

The Tribunal said:
It is more difficult to say what Mr Ndonya’s correct date of birth is. The “birth certificate” is not reliable evidence. The most reliable informant is his mother who cannot say for sure even the year of his birth. However, accepting his mother’s evidence that there are three years between him and his 15-year old brother, 1991 is more likely to be the correct year of birth than 1988 which would make him 21 or 22. The actual date, 12 September 1991, appears to be a guess at best.[31]
[31] Ndonya and Minister for Immigration and Citizenship [2009] AATA 940 at [36].
The most thorough consideration of the issue of changing dates of birth in order to ensure that the record eventually maintained by government is “correct” was undertaken in the matter of HFNB.
In that, the Tribunal recognised that where matters are in dispute it may be a case that
the age determination process is an imprecise one, particularly in circumstances where there is a lack of useful supporting documents from the person being assessed.[32]
[32] HFNB and Secretary, Department of Immigration and Border Protection (Freedom of Information) [2017] AATA 870 at [30].
The Tribunal continued
Once it is established that the record of information is incorrect, the next task is to determine whether the proposed amendment would make the record correct.[33]
[33] Ibid at [31] emphasis in original.
The term “correct” admits of little ambiguity. A matter such as a specific date of birth is either correct or it is incorrect. However, it may also be unknown.
In this respect it is useful to consider the Guidelines published by the Office of the Australian Information Commissioner under section 93A of the Act. A decision-maker exercising powers under the Act (including the power to amend records) is enjoined that such exercise “must have regard to any guidelines issued by the Information Commissioner” (s 93A(2)) but that such “Guidelines are not legislative instruments” (s93A(3)).
That qualification is important because although the Guidelines may offer just that, guidance, nevertheless, “it follows that regard cannot be had to the Guidelines to determine the proper interpretation of the FOI Act generally or of a particular provision.”[34]
[34] Re Prinn and Department of Defence [2016] 152 ALD 162 at [48].
The Guidelines about the amendment of records are set out in Part 7 “Amendment and Annotation of Personal Records”.[35] Relying on the decision in K, sections 7.50 and 7.51 provide (footnotes omitted):
Government records should reflect the closest approximation of the correct information
7.50 It is important that government records are as accurate as possible. Incorrect information recorded by an agency can have significant adverse consequences for individuals, including in relation to their eligibility for services or benefits. An agency may be satisfied that a record of personal information is incorrect but find it difficult to establish what the correct information is with certainty. In these circumstances, the agency should record the closest possible approximation of the correct information. When an agency receives an application for amendment of personal records, it is not necessary that the agency be satisfied that the new information proposed by the applicant is correct before it can amend its record under s 50. If the agency makes a finding that the existing information in the record is incorrect, it should amend the record in accordance with the applicant’s request if:
the amendment proposed by the applicant is more likely to be correct than the information currently recorded, and
there is no other amendment that is more likely to be correct.
7.51 It is open to an agency or minister to amend a record, under s 50, in a way that is different to the amendment proposed by the applicant, provided it is more likely to be correct than any other amendment option. For example, an agency may determine that an applicant’s recorded date of birth is incorrect but be unable to determine with certainty that the new date proposed by the applicant is correct. In this case, the agency should record the closest possible approximation of the correct date, whether this is the date proposed by the applicant, or another date that the agency believes, on reasonable grounds, is closer to the correct date. If the exact date of a person’s birth cannot be established with certainty, a key consideration should be consistency of dates across the records held by multiple government agencies.
[35] OAIC: Guidelines under the Freedom of Information Act (version 1.4, January 2018).
This approach and that set out in K has been criticised by the Tribunal in HFNB in reasons which need to be set out in detail (emphasis added).
Would the proposed amendment make the record of information “correct”?
Once it is established that the record of information is incorrect, the next task is to determine whether the proposed amendment would make the record correct. In the AIC’s decision, the AIC found that 24 April 1996 was the correct date of birth of the Respondent as it was “more likely to be closer to the correct date than 31 December 1994” and that no other date “was more likely to be correct”. This is an approach adopted from the decision of the former Freedom of Information Commissioner in ‘K’ and Department of Immigration and Citizenship [2012] AICmr 20, who stated at [39] that:
“... When an agency receives an application for amendment of personal records, it is not necessary that the agency be satisfied than [sic] the date proposed by the applicant is correct before it can amend its record under s 50. It is enough that:
the date proposed by the applicant is more likely to be the correct date, or to be closer to the correct date, than the date currently recorded, and
there is no other date that is more likely to be correct”
I note that this approach is also replicated in the Freedom of Information Guidelines (the Guidelines) at [7.45] (citing ‘K’ and Department of Immigration and Citizenship). The Guidelines are not legislative instruments but regard must be had to them in performing a function or exercising a power under the Act (s 93A of the Act). It is clear that Parliament’s intent was for decision-makers (be it the AIC or the Tribunal) to consider the Guidelines in performing a function or exercising a power, but it was not their intent that decision-makers be bound to apply them. Importantly, whilst the Guidelines must be made in accordance with the power conferred by s 93A of the Act, as well as consistently with the Act as a whole, they cannot be used for the interpretation of the Act (Re Prinn and Department of Defence (2016) 152 ALD 162 at 175-178).
Respectfully, the approach to the word correct in the case of ‘K’ and Department of Immigration and Citizenship and within the Guidelines is not justified by the nature of the power conferred by the Act. The correct approach is not whether the date of birth advanced by the Respondent is likely to be closer to the correct date than that currently recorded and whether no other date is more likely to be correct. Rather, the correct approach is, as contended by the Applicant, taking into account all the relevant facts, whether the date of birth raised by the Respondent is the correct date of birth. This is clear from the wording in the Act, which states that the amendment may be made to make the information correct, as opposed to “closer to correct” or “more likely to be correct”.
On the basis of the evidence before it, the Tribunal concludes that the Respondent's birth date should remain recorded as 31 December 1994 and that changing the date in the record of information to 24 April 1996 would not make the record correct.[36]
[36] HFNB and Secretary, Department of Immigration and Border Protection (Freedom of Information) [2017] AATA 870 at [31]-[34].
With utmost respect to the distinguished former Information Commissioner, the Tribunal agrees that the approach in HFNB is correct and that an approach that accepts “the closest approximation of the correct information” is sustainable only where there is no probative basis, at least on the balance of probabilities, upon which to settle on a definitive date as being “correct”. The onus here lies on the Respondent to demonstrate that “the date of birth raised … is the correct date of birth”.
It should be noted that this application does not involve reference to any issues of civil strife, refugee status or discrimination as the Applicant’s passage from Ghana to Australia was facilitated by an orderly and regular process of formal application, approval, sponsorship and travel.
The FOIA creates a number of rights for applicants (both Australian and non-Australian) and the Tribunal has held that “a decision to refuse (one of those rights) is not one that can be made lightly, given the stated objects of the Act”.[37]
[37] QVFT and Secretary, Department of Immigration and Citizenship [2021] AATA 501 at [21].
Although the right to make alterations in defective records is not specified in the Objectives clause of the Act (s. 3) none of the rights which are made explicit are meaningful unless the information which lies at the heart of the FIO scheme is accurate. This is why s 61 places the onus in such matters on the agency/Minister not the applicant.
In Cox the Tribunal provided some important guidance relevant to this application. It said:
6 In making the s 50(1) decision, the agency or on review the tribunal should also have regard to:
(a) the character of the record, in particular whether it purports to be an objective recording of purely factual material or whether it merely purports to be the record of an opinion/report of one person;
(b) whether the record serves a continuing purpose;
(c) whether retention of the record in unamended form may serve a historic purpose;
(d )whether the record is dated;
(e) whether amendment is being sought as a de facto means of reviewing another administrative decision;
(f) the extent to which access to the record is restricted;
(g )whether creation of the record or any of its contents was induced by malice.
(h) whether the record is part of a group of records and, if so, whether the other records modify the impact of the record in dispute.[38]
[38] Re Cox and Department of Defence [1990] 20 ALD 499 at [6].
This check-list was referenced by the Tribunal in Miskovic where it said that:
The records here are an objective recording of a fact so should be as accurate as possible.[39]
[39] Miskovic and Department of Immigration and Citizenship [2009] AATA 76 at [14].
In that case the Tribunal went on to say:
“[in]convenience may need to be considered when exercising a discretion. In this case, any inconvenience to the authorities is outweighed by the correction being one relating to a fact and the applicant is entitled to have the record correctly reflect his personal circumstances including his correct date of birth.”[40]
[40] Idem.
It is worth repeating that simply because an error is shown in the documents or records, no automatic right of correction arises. As the Federal Court has stated:
Here two things may be noted. First, the power to amend arises only if the agency, in effect, agrees with the applicant that the information is incomplete, incorrect, out of date or misleading. Secondly, even if it does, there is no obligation to amend: the discretion to do so appears to be unfettered, other than, presumably, that it must be exercised in a way that is in general harmony with the objects of the legislation. That there will be cases in which the agency will, notwithstanding being satisfied of the existence of the stipulated preconditions, decline to amend is confirmed by the terms of s 51 of the FOI Act.[41]
[41] Neeson v The Chief Executive Officer of Centrelink [2006] FCA 1107 at [11] per Jessup J.
APPLICATIONS FOR CHANGE OF DATES OF BIRTH
There have been a series of applications either on behalf of or by the Applicant to have his date of birth changed in official records. Hereunder the Tribunal sets out simply the narrative and some details of those applications, each of which is discussed subsequently.
May 1999
On 12 May 1999 the Applicant’s father (CKA) applied to the Department under the FOIA to change the dates of birth of the Applicant from 19 September 1979 to 11 September 1983.
At the same time, it appears that he applied to change the date of birth of his daughter SK from 20 January 1985 to 17 March 1987. In addition, he applied to change the birth dates of a further two of his four elder children: IS from 15 November 1973 to 20 September 1977 and MM from 3 June 1976 to 6 March 1981. No application appears to have been made in relation to NA (born in 1968) or CAS (born in 1970).[42]
[42] T documents at 125 and 151.
The departmental record of interview in relation to this application is seriously in error in recording that the proposed change of date of birth of IA was from “11 August 1953 to 9 July 1947”[43] although this error is corrected elsewhere.[44]
[43] Ibid at 145.
[44] Ibid at 151.
This original application is not before the Tribunal but is referenced in a letter from the Department dated 12 December 2011 denying the application.[45]
[45] T documents at 154-156.
In support of this application CKA lodged, in relation to the Applicant, copies of a Ghanaian passport (T 418153) showing the 19 September 1979 birth date and a certified copy of an entry in the register of birth number C 630548 (see below) showing a birth date of 11 September 1983.
This application was refused. The Department stated:
It should be noted that the Department has spent a considerable amount of time, effort and resources to determine the correct dates of birth. As investigations by the overseas authorities have determined that the information in the certificates for [SK] and [WLSX] contain false information I am not convinced that the documents you have presented are acceptable evidence of their personal details. In view of the abovementioned conclusions, the above applications for amendment are refused.[46]
[46] Ibid at 155.
There does not appear to be any record before the Tribunal in relation any decision related to the other two children mentioned in the application, but the oral evidence of the Applicant is that these were also refused.
January 2011
On 31 January 2011 (received 2 February 2011) the Applicant applied in his own right for a change of birth in the official record pursuant to the FOIA. To this application was attached a copy of a certified copy of a birth certificate in the Applicant’s name showing his date of birth as 11 September 1983. It does not appear that any other documentation was attached.[47]
[47] Ibid at 174-180.
As will be explained below, this application was withdrawn on 4 March 2011.[48]
[48] Ibid at 204.
October 2011
On 3 October 2011 the Applicant made another application under the FOIA for a change of date of birth in his official record. On this occasion he provided the same documentary evidence of a birth certificate, plus certain photographs and copies of other documents, together with a statement in support of his application (see below). [49]
[49] Ibid at 209-223.
On 17 November 2011 this application was refused[50] and it is this refusal which is the basis of the current proceedings in this Tribunal.
[50] Ibid at 238-250.
THE BATTLING BIRTH CERTIFICATES
It will be convenient to outline ab initio the fact that the Tribunal has before it two birth certificates, both of which are claimed to be authentic together with further reference to a third such document which is not before the Tribunal.
19 June 1979
The Respondent relies upon a birth certificate which shows that WLSX, the son of CKA (father) and VA (mother) was born on 19 June 1979 at House Number (H/No.) C.73/8 in New Town, Accra. The informant for the document is listed as the Applicant’s father. The date of registration is shown as 27 January 1988 and the document is certified as a true copy by the Registrar for Birth, Mamboi in the Accra registration district on 29 January 1988.[51]
[51] T documents at 113.
This certificate is linked in the Tribunal documents, upon which the Respondent relies, with some sort of “Welfare (health) Centre” birth record/weigh-in card which records a male child of parents CKA and VA as having been born on 19 September 1979. Next to that dated entry it records, “Spont (spontaneous) delivery in hosp. (hospital)”. On 20 September 1979 it records “Discharged satisfactory.” There is also an annotation on 20 September 1979 “To register birth at M.O.H.”[52]
[52] Ibid at 112.
The copy of both the birth certificate and the health centre document are “certified as a true copy” by the same hand.
There are multiple copies of this document in both the Tribunal documents and in the Affidavit sworn by a Legal Officer in the Department of Home Affairs which at Annexure DS-2 presents the certificate bearing an additional stamp “Confirmed” dated 21-10-2021.
The Officer (Ms SA) sought the assistance of an officer of the Australian Embassy in Nairobi, Kenya to verify this Ghanaian birth certificate.
There appears to be no immediate explanation as to why all these discussions were conducted through Nairobi when Australia has had resident High Commissioners in Accra since 2004. The first resident High Commissioners served in Ghana from 1958 to 1985; thereafter Ghana was served by the resident High Commissioner in Nigeria (1985-2004) until the High Commission was re-established in Accra in June 2004.[53] It has been functional there ever since.
[53] Alexander Downer MP: Diplomatic Appointment: High Commissioner to Ghana, Press Release 18 May 2004.
In any event, the relevant officer (Ms PA) emailed back to Ms SA on 2 November 2021 to the effect that, “The Ghana Birth Death Registry have finally responded and verified the birth certificate as genuine.”[54]
[54] Affidavit of Ms SA (17 November 2021) at [11].
Ms PA further advised in relation to the “weigh-in” card that
“A birth should be registered in the district where the birth occurred. If the birth is registered within twelve months of the event, then one of the parents is required to present the health clinic 'weigh-in card' at the registry. The attached document is like the weigh-in card and is usually done at a clinic not a hospital and as there is no name at the top of the medical report (weigh-in card) it would be extremely difficult to know where this was completed.”[55]
[55] Ibid at 15.
There was some confusion in earlier email traffic between the parties about the status of the birth certificate as being genuine or not. An email from Ms PA to Ms SA dated 15 November 2021 advises:
I wrote to the Birth and Death Registry in Ghana and did not receive the verification until early November. Now that we no longer have the [REDACTED] I just emailed number our staff at the birth death registry in Ghana and luckily one came back with verifying the document as non-genuine.[56]
[56] Idem.
All this was clarified by Ms SA in a further Affidavit of 25 February 2022 to the effect that the Department was satisfied that the 1979 birth certificate was genuine, and that Ms PA apologised for any previous confusion about the document not being genuine,[57] although clearly admitting that her previous advice was to the contrary. As this is possibly a matter of some moment, it is best to set out the relevant parts of the correspondence in full:
Ms SA to Ms PA (11 February 2022): “I just want to clarify a couple of things we need to address in our submissions. You stated below that Mr Bothway was the contact that eventually responded, verifying the birth certificate (attached) as non-genuine. Just confirming that you meant it was genuine? (emphasis in original)
Ms PA to Ms SA (14 February 2022): “I don’t have access to my old emails any longer but I thought that the birth certificate was non-genuine – what makes you think I meant genuine? If it was because I said “luckily” by that I meant we were lucky to get any response at all”.
Ms SA to Ms PA (15 February 2022): “It’s because of the attached email from you stating ‘The Ghana Birth Death Registry have finally responded and verified the birth certificate as genuine’. So I believe it was genuine. Grateful if you could confirm that based on the attached email. I just wanted to make sure it was genuine and not non-genuine as indicated below.”
Ms PA to Ms SA (15 February 2022): “Sorry, yes based on my email it was verified as genuine”.
[57] Attachment to Affidavit of Ms SA (dated 25 February 2022).

It is the Applicant’s contention that this birth certificate is incorrect and that the details of the weigh-in care/hospital record do not accord with the birth certificate itself, showing 19 June 1979 and 19 September 1979 respectively.
In addition, the Applicant states that the weigh-in card states that VA had “6” children alive at the time whereas he states that he was her fifth child, so that detail could not be correct. There is no reliable information before the Tribunal to establish the truth on this point as the details of family births and relationships are not clear. An undated File Note headed “[X] Family” records a discussion between the Applicant’s father and an officer of the Department about family structure in which the dates of birth (and the years between the births) of the various children was discussed and the father’s claim found to be “not consistent with either ‘sets’ of documents provided.”[58]
[58] T documents at 147.
Certificate 630548
On 12 May 1999 the Applicant’s father made a request under the FOIA to amend departmental records relating to his son WLSX and one of his siblings, SK. In support of this application, he attached a “certified copy of entry in Register of Births number C No. 630548 in the name of WLSX showing the date of birth as 11 September 1983”.[59]
[59] T documents at 155. The certified copy is numbered 020127-380-2011.
There is no copy of this Certificate in any of the material before the Tribunal. This is most unfortunate as this is in some respects the key document of the whole application and it must have been in the possession of the Applicant at various times, or at least a certified copy was in his possession. His failure to produce it tells significantly against any easy acceptance of its veracity.
An officer of the Department (Ms CA) was in contact with Mr John Brock at the Australian High Commission in Nairobi (Kenya) to seek his assistance with verification of this birth certificate for WLSX and three of his siblings (IA, MM and SK). Mr Brock arranged for another officer (Mr Ritchie) to check on these birth certificates during a visit to Accra.
The original birth certificate for MM apparently records her as having been born in House 73/8 in Accra New Town (the same house given as the birthplace for WLSX) on 3 June 1976 and with her birth registered in Mamobi on 29 January 1988 (the same place and date as WLSX). [60]
[60] Ibid at 149.
Mr Brock reports to Ms CA on 12 November 2001:
Brod Ritchie visited the Military Hospital in Accra on 5 November. Brod met with the Admin Officer, Lt Col. Sam Aninkora. A search was conducted of the hospital records for the relevant dates mentioned on the birth certificates to determine if [WLSX] and [SK] were recorded as being born on those dates. Brod observed the initial period of the search of the records.
The Admin Officer later confirmed by telephone that the records for the dates when [WLSX] and [SK] are started to be born had been located. He stated that there was no record of either being born at the Military Hospital on those days. He concluded that in his opinion the birth certificates contained false information.
In respect of the other 2 certificates the Admin Officer told me last year that we would have to search the records at the other hospital. However he stated at that stage that he believed these were also fraudulent as the details would not have been included by the registrar at the Military Hospital.
Mr Brock was again in correspondence with Ms CA on 21 November 2001 reporting
The certificate given to you to support an amendment for her birth indicates that she was born on 6/3/1981 in the Maternity Block, Korle-Bu Hospital, Accra. The certificate indicates she was registered in the Register of Births for the Military Hospital in Accra.
We have already established that the information on the certificates in relation to [WLSX] and [SK] is fraudulent – there is no record of their birth at the Military Hospital.[61]
[61] T documents at 149.
Frankly all this adds as much confusion as clarity to the picture. Among the issues that arise are:
·The issue of multiple certificates on 29 January 1988 for births which took place many years prior to that giving the place of birth as being in a home not a hospital,
·The issue of where births were registered, namely at the Mamobi district registry or at a hospital,
·The possible confusion of the Military Hospital (properly the 37 Military Hospital) and the Korle-Bu Teaching Hospital,[62]
·“The records for the dates when [WLSX] and [SK] are stated to be born had been located´ but where they were located is not stated and there is no indication that the claimed date of birth is incorrect, only that the alleged place of birth may be incorrect, but in any event, the claim is not that they were born at the 37 Military Hospital but rather either at home or at Korle-Bu Hospital,
·Mr Ritchie did not sight the relevant documents as he only observed the initial period of the search and the opinion formed as to fraudulent status must be that of the Administration Officer Lt Col Aninkora.
[62] The Wikipedia entry for the Korle-Bu Teaching Hospital describes it as the “premier-health care facility in Ghana”, a tertiary teaching hospital associated with the University of Ghana. It was established in 1923 and is the oldest hospital in the country. The “Military Hospital” is properly referred to as the “37 Military Hospital” and was established in 1941 and is second in size only to Korle-Bu.
Nevertheless, it was on the basis of the Certificate 630548 being found to be fraudulent that the Department proceeded to reject the application for a change to the records.[63]
[63] T documents at 247 – Record of Decision.
The Applicant’s father called into the Department’s offices (“unexpectantly” (sic)) on 13 November 2011, the day after receipt of Mr Brock’s report and was interviewed by Ms Ca in relation to his application to change the birth dates of his children. An interview took place in which it is recorded that the Applicant’s father stated:
Q: … Is there anything wrong with the birth dates?
: The dates of birth are innocently and inadvertently put on the Birth Certificates. In Ghana they do not hold proper records. These documents are not fraudulent.
Q. How did you acquire these documents?
A.: My brother [PA] went to the Register of Births and Marriages and the person in the Registry office just signed the documents. The person that signed the documents is the person who organised the documents. My brother died on 18 March 2001. When the children were born they did not get birth certificates.[64]
[64] T documents at 146.
The Department then made a decision on the father’s FOI application and on 12 December 2001 advised him that his request to amend the records for WLSX and SK had been refused, giving as the principal reason for this decision that after investigations had been made:
The information presented to the Australian High Commission Nairobi was that there was no record of either person being born at the Military Hospital on those days and that the birth certificates contained false information.[65]
[65] T documents at 155.
The Tribunal also notes that the Applicant was requested by the Department (as part of its consideration of his October application) to obtain a letter from the Republic of Ghana consulate confirming that the certified copy of the Certificate 630548 (itself numbered 020127-380-2011) and the Ghanaian passport (T 418153) referred to the same person. The Applicant failed to do so.[66]
[66] Ibid at 247.
11 September 1983
On 11 January 2011 the Registrar of Births and Deaths for the district of Tesnao, Accra, Ghana issued a Certified Copy of Entry in Register of Births which shows that WLSX, the son of CKA (father) and VA (mother) was born on 11 September 1983 in the Achimota Hospital, Accra, Ghana[67]. There is an accompanying letter in the Applicant’s submissions which states:
Dear Sir/Madam
Verification of Birth Certificate [WLSX]
We wish to inform you that the Birth Certificate with entry number 380 in respect of [WLSX] issued on 17^th January 2011 has been officially processed and entered in the register of Births for Tesnao in the Greater Accra Region.
Yours faithfully
(signed) Seth Bosompen Kissi
Ag Registrar of Births and Death.
[67] The Achimota Hospital was established in 1957 and is a government (public) hospital in the Accra Metropolitan District.
The letter is on official letterhead of the Births and Deaths Registry of the Republic of Ghana.
The certificate indicates that the “Informant” in the matter was JBA given as “Father’s brother”.
The Applicant submits that the information submitted by his Uncle to the Ghanaian Department consisted of a photograph of the applicant at about aged six months provided by the Applicant’s mother (purportedly in 1983); copies of the Applicant’s pre-school and primary school records and a family photograph taken in 1993 showing all members of his family (himself, parents, uncle and sisters) during a visit to Ghana.[68]
[68] Applicant’s Statement of Facts, Issues and Contentions (dated 21 January 20220 at [18].
The birth certificate in question was examined by the Document Examination Unit (DEU) of the (then) Department of Immigration and Citizenship and a report dated 21 January 2011 concluded that it:
“is a legitimately manufactured document, issued in the expected manner with no fraudulent alteration.”[69]
[69] T documents at 196.
This may not have been the advice the Department was hoping to hear as the DEU examiner was put under pressure by the relevant case officer to provide her with urgent advice as she had a scheduled interview with WLSX and:
“I would like to be able to “deflect” any issues arising during the interview”.[70]
[70] Ibid at 194.
DISCUSSION RE BIRTH CERTIFICATES
The United Kingdom Home Office Country Policy and Information Note on Ghana[71] gives details about the processes for obtaining birth certificates in Ghana.[72] (emphasis added):
Within the first 12 months of the birth, the parents should present a "weighing card" or "welfare centre card" which is provided at the child's first well-baby visit with a medical practitioner. If 12 months or more have elapsed since the birth, the parents must present the weighing card, baptismal certificate and parents' passports. Persons over 18 years of age must apply in person, present a valid voter ID card and passport as proof of identity, and must be accompanied by a witness who can attest to the applicant's birth.
'Records of registrations more than one year old are deposited with the Office of the Registrar of Births and Deaths for Ghana, C/O Ministry of Local Government, P.O. Box M.270, Accra, Ghana. If the applicant resides outside of Ghana, the person applying must present a written authorization from the individual whose birth certificate is being requested. Persons under 18 years of age must have their parent or guardian obtain the certificate. Certificates are usually issued within 10 working days ...
'Comments: The majority of registrations are not made at the time of birth, and often no registration is made until an individual requires a birth certificate for immigration purposes. Registrations not made within one year of an individual's birth are not reliable evidence of identity or relationship, since any registration, but especially late registrations, may often be accomplished upon demand, with little or no supporting documentation required. Because of the prevalence of late registrations, secondary evidence of birth is often required. Common secondary evidence includes midwife's certificates of birth, "weighing cards" or welfare centre cards, and baptismal certificates. Ghana Health Service provides a Child Health Record (a green pamphlet), and Maternal Health Record (a pink pamphlet) to every infant and pregnant woman as a means of recording medical details of pregnancy and the first year of life.
[71] UK Home Office: Country Policy and Information Note – Ghana – Background information, including internal relocation (version 1.0, September 2020)
[72] There is no Australian Department of Foreign Affairs and Trade Country Information Report on Ghana.
Both the purported 1979 and 1983 birth certificates were issued well beyond one year after the alleged date of birth and the comment about the reliability of such late-registered documents should be noted in relation to each of them.
Conversely, there are “authentications” for both birth certificates from differing authorities in Ghana.
The Tribunal is not satisfied on the basis of all the evidence that the rejection of Certificate 630548, if genuinely issued, was entirely justified. This is because the date of birth shown on the document may have been correct, but the location of the birth was unable to be established – if indeed inquiries were being made at the correct hospital. The Tribunal cannot draw a definitive conclusion either way as to the status or authenticity of this document.
As noted in the UK Home Office Report, there is no single central place in Ghana for the immediate registration of births. They take place in “hundreds of registry offices across the country”[73] with details eventually archived centrally. In Vann Lee the Tribunal noted in relation to an analogous situation in Cambodia:
Cambodian documents such as birth certificates, death certificates, passports, family books, residence books and school records cannot be relied upon in themselves. This is due to the fact that many documents can be obtained on a self-reporting basis and may be genuinely issued but fraudulently obtained. Additionally, verifying the documentation is resource intensive in that there is no central registry for birth, deaths and marriages — they are held in individual communes or districts, each of which issues them separately and therefore the procedures vary.[74]
[73] Ms SA’s Affidavit at DS-3. Advice from Ms PA, 15 November 2021.
[74] Vann Lee and Minister for Immigration and Citizenship [2013] AATA 532 at [18] per Mr Dean Letcher, QC, Senior Member.
The unfortunate but inescapable conclusion must be that it is not possible on the evidence before the Tribunal for it to be positively satisfied that either (any) of the birth certificates is beyond question as to accuracy and authenticity or that either (any) of them should be accepted as the sole correct record of the birth of the Applicant.
APPLICATION INTERVIEWS
There have been two separate occasions on which the Department has conducted interviews in relation to this application. The first of these on 13 November 2001 was with the Applicant’s father and has been discussed above.
The second took place directly with the Applicant on 24 February 2011 between the Applicant with two officers of the Department, and it is recorded as follows:
“I showed [WLSX] his application for Australian Citizenship and supporting documents which has his dob recorded as 19/06/1979. Also attached to the application was a letter dated 11/11/2002 which states the FOI request to amend his DOB to 11/09/1983 was refused as the birth certificate for [WLSX] was fraudulent.
…..
From [WLSX’s] body language and his surprise when he read his dob had been refused as the Ghanaian B/c was fraudulent, it was evident he was not aware of why his dob had been refused.
…..
I indicated to [WLSX] that the birth certificate provided to the Department was fraudulent and this birth certificate was not provided to the Department of Immigration until his Citz Application which was 2001”,[75]
[75] Tribunal documents at 199, 200 and 201.
OTHER DOCUMENTARY EVIDENCE
In the absence of this matter being resolved by acceptance of a birth certificate as conclusive proof of the Applicant’s date of birth, the Tribunal must consider the other evidence before it.
Written records
There are a number of written records which give clear statements of the alleged date of birth of the Applicant. There are two traches of these documents, the first running from 1994 to the date of the Applicant’s application for citizenship in 2002.
Statutory Declaration of Applicant’s mother (VA)[76]: This was made in Accra on 15 August 1994 and declares that the Applicant was born on “19/9/79”. This accords with the details of the weight-card/hospital record but not the 1979 birth certificate. In his evidence to the Tribunal the Applicant described his mother as only “semi-literate” and that in this instance she had been asked to sign whatever had been put before her by an Uncle of the Applicant’s (who was collecting information on behalf of the family[77]) without being aware of what she was signing.
[76] T documents at 121.
[77] In evidence the Applicant stated that this is not the same Uncle as was involved in providing information to the authorities for the reissued certification of the birth certificate in 2011.
Statutory Declaration of the Applicant’s father (CKA)[78]: This was made in Sydney on 23 August 1994 and also records the Applicant’s date of birth as “19/09/1979”. Other aspects of this Statutory Declaration are not correct, for example CKA gives his date of arrival in Australia as “02/08/1994” which is not correct. He arrived on 2 February 1986[79] and was married here in November 1988.
[78] T documents at 125.
[79] Ibid at 128.
Statutory Declaration of the Applicant’s “Legal Guardian” (PKA)[80]: This was made in Accra and is dated 15 August 1994. The principal purpose of this Statutory Declaration was to grant “permission for the removal from Ghana” of the Applicants and his siblings “into the care, custody and control of their father [CKA] who resides in Australia.”
[80] Ibid at 136.
Sponsorship for Migration to Australia form: This was completed by the Applicant’s father on 19 August 1994 and lists the Applicant’s date of birth as “19/06/79”.[81]
[81] Ibid at 127.
Applicant’s Ghanaian passport (No T 418153) issued in Accra on 16 November 1993 recording his date of birth as “19:9:1979”.[82]
[82] Ibid at 133.
Radiological report associated with visa application taken on 15 March 1995 (recorded on departmental file 31 March 1995) conducted by Korle-Bu Teaching Hospital giving the Applicant’s date of birth as “19/6/1979”.[83]
[83] Ibid at 138.
Father’s request to amend records: On 12 May 1999 the Applicant’s father made a request under the FOIA for the amendment of the dates of birth shown in the Department’s records for the Applicant and his sister (SK). In support of this application the father attached a copy of both the Ghanaian passport (No T 418153) showing the 1979 date of birth and the and a certified copy of the C No. 630548 certificate showing a 1983 date of birth.
Application for Australian citizenship: signed by the Applicant on 2 August 2002. Most of the application form is filled in electronically but where the printed date of date of birth is shown as “19/09/1979” there is a hand-written amendment stating “19/6/1979” and some sort of further annotation alongside that correction. The city of birth detail has also been corrected by hand and the whole document bears the annotation “Approved. [Ms CA] 24/12/02.[84]
[84] Ibid at 157. In evidence to the Tribunal the Applicant confirmed that he had personally signed this application.
Applicant’s letter of 22 November 2002: On 11 November 2002 the Department wrote to the Applicant’s Migration Agent queering details of the Applicant’s date of birth.[85] In reply the Applicant wrote personally to Ms CA stating: “I refer to your request and confirm that my correct date of birth is 19 June 1979.”[86]
[85] Ibid at 169.
[86] Ibid at 172.
Applicant’s letter of 28 November 2002: This letter follows up the Department’s letter of 11 November which had also raised the issue of the application for alteration of the date of birth submitted by the Applicant’s father and in reply, the Applicant wrote to Ms CA: “I refer to your request and confirm that my correct date of birth is 19 June 1979 and I will not be pursuing any further request to amend this application.”[87]
[87] Ibid at 173.

The second tranche of documents arise after 31 January 2011 on which date the Applicant lodged another application for a change of date of birth in the Department’s records.[88] This was despite his disclaimer of 28 November 2002 that he would not pursue this course of action, but was nevertheless entirely within his rights to do and appears to have been particularly occasioned by his being in the process of seeking to become registered as a Migration Agent.[89]
[88] Ibid at 174.
[89] Idem and Ibid at 177, 181.
This application was accompanied by the birth certificate dated 17 January 2011[90] and an explanation of why the existing record was believed to be wrong.
[90] Ibid at 180.
That explanation given by the Applicant needs to be set out in full:[91]
[91] Ibid at 178.
I note that at the time of my vis application I was too young to understand or know what was happening.
I am now a [professional] and I seek to have this error rectified.
I further note that my father and his brother were responsible for the completion of my visa application.
I asked my father to explain to me why there was such an error with my date of birth.
He tells me that it was simply a “mistaken fact”.
He went on further to explain that at the time of my application to migrate to Australia, he wasn’t absolutely sure of my date of birth, he tells me that he had an idea but was not certain so he referred to my uncle for help.
He tells me that my uncle was the one who gave him the incorrect date of birth. This incorrect date was based on a “mistaken belief”. It was a misguided calculation on the part of my uncle.
Now one might ask the question, where was my mother in all of this? I put exactly the same question to my father.
He advised me that at the time of my application, it was virtually impossible to get in contact with my mother as she was residing in one of the villages in Accra.
NSW Driver’s Licence: This was issued to the Applicant with an expiry date of 29 July 2022. It records a date of birth as 11 September 1983. He claims that his first licence was issued on 29 July 2001.[92] To get a driver’s license in NSW one of the requirements is to prove identity.[93] This requires provision of 2 “List 1” and I “List 2” documents. Among the List 1 documents which would have been available to the Applicant would have been an overseas birth certificate; current DFAT travel documents; current overseas passport; current photo identity card from NSW Police or certain ImmiCards issued by the Department of Immigration. In 2001 the Applicant would have been in possession of a birth certificate, a Ghanaian passport and travel documents from the Australian government, all of which recorded his date of birth in 1979[94] and presumably a copy of the C No. 630548 certificate with a 1983 date of birth. It is assumed he submitted the latter as proof of date of birth.
[92] Applicant’s Statement of Facts, Issues and Contentions (SFIC) at [8.2].
[93] He had not at that stage obtained an Australian Citizenship certificate which in any case shows his birth date as 1979.
Professional Practising Certificates: The Applicant supplied copies of his professional practising certificates from 2013/2014 to 2019/2020 together with details of his membership of the relevant professional association.[95] The rules of the professional admission board provide that in order to be admitted to the profession an applicant must provide evidence of his or her date of birth. He was first admitted in October 2010.[96] There is no way of knowing from the evidence before the Tribunal as to which birth certificate was submitted by the Applicant to fulfill this requirement and none of the subsequent documents which attest to his registration show a date of birth, nor indeed does the renewal application of 2017-2018.[97] Once again it is to be presumed that the C No. 630548 certificate was advanced as evidence of date of birth.
[95] T documents at 50-55.
[96] Ibid at 34.
[97] Ibid at 34-35.
Other documentary evidence : As with the practising certificate and enrolment evidence, the Applicant has produced copies of records from the Australian Taxation Office, the University of Western Sydney and Medicare all in the name of the Applicant.[98] In his submissions the Applicant claims that all of these were issued on the basis of his date of birth being 11 September 1983[99] however none of them show a date of birth on the documentation itself and there is no evidence presented by the Applicant of original enrolment forms or applications. Each of these documents could have been issued on the basis of either a 1979 or a 1983 birth certificate and the Tribunal is in no position to determine which was supplied, but from the Applicant’s evidence, it is presumed the latter.
[98] Ibid at 30-33; 46; 48 respectively.
[99] Ibid at 21-22.
REST superannuation membership: a document from this superannuation company lists the Applicant’s/Member’s date of birth as 11 September 1983. It is dated 14 December 2018 and shows the Applicant’s engagement by his employer as 10 December 2018. By this date the Applicant would have been in possession not only of the C No. 630548 certificate but also of the certified copy of his 1983 birth certificate from 2011 to present as evidence of his birth.
Photographic and other inferential evidence
An important part of the Applicant’s submission relates to his educational record. His first school record available is from the New Life Preparatory School in Accra and shows the Applicant enrolled from September 1991 for a period of 4 years.[100] In the Tribunal documents there are details provided of this enrolment, although these have been provided by the Applicant himself rather than from the school.[101] It was the Applicant’s evidence that Ghana follows a model, akin to that in Australia, where preparatory schools take students post-kindergarten and pre-secondary school from ages of approximately 7 to 12 years of age. If this record is correct, it is more likely that the Applicant was enrolled in this preparatory school at the age of 7 or 8, rather than aged 12 or 13, especially if he remained there for four years.
[100] Applicant’s SFIC at 8.2.
[101] T documents at 97.
The Applicant arrived in Australia in 1996 and was enrolled at Revesby Public Primary School in Year 6 (ages 11-12 years). He then progressed to East Hills Boys Technology High where he enrolled in 1997 (in Year 7) and graduated in 2002 (completing Year 12).[102]
[102] Ibid at 36 – letter from High School Principal.
There are a number of photographs before the Tribunal showing the Applicant in various school year photos from 1997 to 2021.[103]
[103] Ibid at 37-45.
The Applicant contends that, if his date of birth was 1979 then in Year 7 (ages 12-13 years) he would have been 18 years of age and should never have been accepted into such a class by the NSW Department of Education. He claims that he was properly enrolled, on the basis of evidence supplied to the school, in year 7 because he was 14 years of age, having been born in 1983.
The Tribunal notes that in Razaee, the Tribunal noted that, following discovery that two Afghan brothers were enrolled on the basis of incorrect dates of birth:
They were then required to change classes in school so their ages were consistent with other students.[104]
[104] Rezaee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2019] AATA 5606 at [88]. In this matter the revised date of birth was established on the basis of bone density tests on the applicants.
The Respondent’s position on this is:
[t]he Applicant also relies on his appearance in his Year 7 school photograph. It is not apparent how a person’s precise age or date of birth can be deduced, with any accuracy at all, from one photograph. It is notorious that children can grow and develop at different rates. If the Applicant wants to place any reliance on deductions from that photograph, evidence ought to be given by an appropriately qualified expert with such skills – not by inviting the Tribunal (and Respondent) to speculate upon that photograph. It is notable, also, that the Applicant has not sought to adduce any evidence from the NSW Department of Education relating to his schooling and his age at the time of enrolment. Finally, it is not apparent how the abovementioned photograph (or any other evidence about his schooling) could outweigh the clear and repeated statements, contained in the documents provided to the Department with the 1994 visa application, that the Applicant was born in 1979.[105]
[105] Respondent’s SFIC at [35].
Again, the problem for the Tribunal is that while the Applicant claims that he was enrolled in the NSW Education Department’s systems on the basis of his having been born in 1983 there is no evidence of what documentation the Applicant (in this case the Applicant’s father on his behalf) had which would have established that to be the correct date.
In Grass,[106] I spent some time outlining the challenges faced by the Tribunal in attempting to determine ages from photographic evidence. Those problems arise here when the Tribunal is asked to determine from a small photograph of one face among many whether a young man is 13 or 18 years of age. In the absence of expert evidence on this issue the Tribunal cannot and does not make any relevant finding. The Tribunal acknowledges however that there are multiple photographs across several years, and not just his Year 7 photograph as referenced by the Respondent in their SFIC.
[106] Grass and Secretary, Department of Home Affairs (Freedom of Information) [2019] AATA 1415 at [46]-[56].
It does however appreciate, as did the Respondent’s representative in the Tribunal hearing, that this is a significant factor tending to be supportive of the Applicant’s claim about his age and that were the 1979 date to be taken as correct he would have been enrolled in High School from the ages of 18 to 23 years of age.
THE APPLICANT’S ORAL EVIDENCE
Apart from the detailed documentation placed before the Tribunal the Applicant gave sworn evidence and was cross-examined by both the Tribunal and the Respondent’s counsel. Key elements of his testimony were to the effect that:
·He first became aware of the fact that his date of birth had been incorrectly recorded either immediately upon or shortly after his arrival in Australia in May 1996.
·He was not aware of any of the details of any of the documentation completed by his father, guardian or other persons prior to this arrival in Australia.
·When he has raised with his father how it came about that his father recorded incorrect information about his date of birth, his father admitted of no more than a lapse of memory or uncertainty as to the dates of birth of any of his children.
·His father is unable as a result of age and infirmity to provide any further evidence or to appear before the Tribunal in these proceedings.[107]
·His mother has never been in Australia, his parents are divorced, and his mother is a person of limited skills in terms of literacy.
·Although his siblings have been affected, as he has, because of the alleged uncertainty of their birth dates and although applications have been made on their behalf for changes in various records, none of them has sought to pursue the matter further. They have either “given up” on the exercise or just “moved on” with their lives.
[107] See also Applicant’s Reply submission (25 February 2022) at [5].
Two particular matters were examined at some length. The first of these related to the Applicant’s experiences at school in Australia. As noted above the Applicant presses the point that when he first arrived to be enrolled at school the Education authorities assessed his level of educational competence (given his prior schooling in Ghana) and examined whatever documents his father put forward and then assigned him to start in Year 6 at Revesby Public School. He makes the point that the authorities would have been able to determine whether he was a thirteen-year-old or a seventeen- year old. This issue of his appropriate age persisted throughout his High School career which he either finished (in Year 12) either aged 18 or aged 23.
Although the Respondent claims that “children grow and develop at different rates”, the physical maturation of young males between the ages of 13 and 17 is nothing if not manifestly obvious.
The second issue relates to the Applicant’s application for Australian citizenship. Prior to allowing cross-examination on this point the Tribunal gave the Applicant a formal warning to the effect that what he was confirming was that he had knowingly and deliberately made a false statement on his application for citizenship and that this is a matter which is pregnant with potential consequences.
Section 50 of the Australian Citizenship Act 2007 (Cth) provides for a penalty of 12 months imprisonment for making false statements or representations for ‘purpose(s) of or in relation to this Act’. Grants of citizenship may be withdrawn or cancelled (s. 34) where obtained fraudulently or dishonestly.
Nevertheless, the Applicant admitted freely that he had signed his application form for citizenship and had altered the date on that application from 19 September 1979 (as printed) to “19/6/1979” in his own handwriting knowing that that date was, according to his belief and current assertions, false, inaccurate and misleading.
The Tribunal notes that the Applicant had the opportunity at this stage to alter the date to read “11/9/1983” and provide documentary support for that claim. Obviously, he did not do so.
He gave as a reason for this some version of force majeure, or in his words that there was, metaphorically, “a gun to his head”. This gun was in the form of his need to obtain HECS support in order to undertake and complete his university studies to qualify for his chosen profession.
Again, the Tribunal notes that his continued acceptance as a member of that profession would be put at risk were it to be found that he knowingly falsified a document as significant as an application for citizenship.
It is not however, for the Tribunal to make some uninvited attempt to rescue the Applicant from himself. He has made his application and given his evidence in full knowledge of what he is doing.
Above all, the Applicant expressed concerns that the apparent lacuna in his life history and record, and the contradictions in documentary statements about his date of birth had inhibited his ability to seek or obtain identified employment opportunities or to pursue certain career paths, such as his current application to become a registered Migration Agent. It is what he describes as having a “practical discriminatory effect on the Applicant.”[108]
[108] Ibid at [10].
DISCUSSION
There are three elements which weigh particularly heavily in the Tribunal’s considerations.
First, the birth certificates: for the reasons explained the Tribunal feels unable to determine which, if any of the various documents submitted as birth certificates is to be taken as correct. Both the original 1979 certificate and the revised 1983 certificate have been authenticated one way or another, although neither comports with the critical health-centre/weigh-in record. It is more than unfortunate that the C No. 630548 certificate has not been produced.
Secondly, the record of the health clinic / weigh-in record carries weight with the Tribunal despite the Applicant’s claim about the recording of the number of live children of VA. In every respect it looks like the type of record one would expect to be kept and that there is no reason to suppose that the dates are incorrect. The Tribunal must, however, acknowledge that there is no clear identification of the actual health clinic/weigh-in centre evident from the documents nor do they attach a name to the records which link them directly with the Applicant, although they are linked with his mother.
Finally the NSW school career and experience seems of critical importance. It is hard to hide a 17/18 year old among 12/13 year olds and to maintain a deception of this magnitude over the course of six or seven years. Leaving aside the photographs which are not sufficiently clear for non-expert evaluation there is something disturbing about any acceptance at face value of the Respondent’s proposition that the Applicant was accepted and enrolled by the NSW Department of Education in Year 7 of a State High School at the age of 18 and remained there until age 23.
On the other hand, the Tribunal finds it hard to credit that the Applicant’s father was so unaware of the details of the birth of his children that he needed to alter records for most of them. It implies, in relation to the visa application, that the father did not know if he was sponsoring a three year old child or a seven year old child and the fact that he was not in a position to provide further evidence to the Tribunal is also unfortunate. The Tribunal does not accept the Applicant’s explanation that a written statement could not have been provided, especially if he maintains that a primary reason was that, “if the Applicant’s father was to submit a statement, he would be required to give evidence.”[109] Such evidence might have clarified matters for the Tribunal but the Respondent did not raise this as any sort of Jones v Dunkel point, and even were that principle applicable in the Tribunal (a point open to debate[110]), it is not taken as such on this occasion. Nor, it should be added, did the Respondent seek to call the father to give evidence.
[109] Idem.
[110] Green v Minister for immigration and Citizenship [2008] 100 ALD 346 per Tamberlain J.
The Tribunal also notes that there was no evidence from other members of the Applicant’s family presented, including from any of those siblings who had also sought to have their birth records altered, with the Applicant stating that none of them wanted “to get involved” in these proceedings. Their silence is not helpful to the Applicant.
Equally there is no reason that the Applicant’s Guardian, who presumably took his responsibilities seriously, would have been so grossly in error about the birth dates of the children in his care.
Further, in relation to the Applicant’s mother, who contrary to his assertions was actually not hard to contact, the Tribunal is not comfortable about accepting that she simply would have signed a document about her children without knowledge of its contents and that a sworn Statutory Declaration would be so inaccurate.
If the Applicant, as he claims, became aware that his records were incorrect as soon as he arrived in Australia, and he knew that his father had sought to amend them as far back as May 1999 (three years after the Applicant’s arrival), it is curious that he did not then himself seek to have those records amended until 2011 and he persisted with the use of the 1979 date on other documents. He did not act on the first available opportunity as the applicants did in Abraham when they noticed that the date on a citizenship certificate was incorrect and moved immediately to rectify the position.[111] Indeed, with the citizenship application, the opportunity to do so was positively passed up.
[111] Abraham and Minister for Immigration and Citizenship [2007] AATA 1090.
There is an open question as to why the Tribunal should accept as credible anything said by an applicant who admits that they deliberately provided false statements in support of a citizenship application and did so for the base motive of being able to fraudulency access public money to which they were otherwise not entitled.
Amending records is an exercise which should be undertaken with care and caution. As the Tribunal said in Grass:
The Act does not prescribe the factors to be taken into account in deciding whether the power to amend a record of personal information, should be exercised. The discretion to amend “is unfettered, other than, presumably, that it must be exercised in a way that is in general harmony with the objects of the legislation. While the power is not restricted to so-called active or current records, nonetheless the nature of the document is relevant to the exercise of the discretion. In my opinion a cautious approach should generally be adopted in the exercise of the power to amend when the relevant documents are plainly historical records. Self-evidently the amendment of such records may result in the record itself becoming nonsensical or misleading.[112]
[112] Grass and Secretary, Department of Immigration and Border Protection [2014] AATA 751 at [65]. Citation omitted.

There is also the level of satisfaction which should be required by the Tribunal. In Kaba, Deputy President Forgie explained:
The evidence of the school certificates is equivocal when taken alone. On their face, they appear to support the arguments put forward by the applicants. Against my reaching that conclusion are the changes to the dates of birth noted by the Document Examination Unit. The evidence of the birth records is a little different. The Document Examination Unit concluded that a conclusive finding was impossible to reach as to their authenticity but I must remember that I am not trying to make a conclusive finding as to whether DIMA’s documents are incorrect. I have only to be “satisfied” regarding the answer to that question. I will be satisfied if I conclude that they are incorrect on the balance of probabilities. The authenticity of the documents must be regarded in the same light and as part of the evidence rather than the whole of the evidence.[113]
[113] Kaba and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2105 at [62]. Citation omitted.
If this matter were to be determined on the basis of the (contested) documents alone, the weight of evidence would suggest that the Applicant’s birth date was 19 September 1979. However, as noted, there can be no certainty about the authenticity of any of these documents.
If the matter were to be determined solely on the basis of the Applicant’s lived experiences in relation to his arrival in Australia and his educational journey, the evidence would suggest that his date of birth was in 1983. This evidence is far less contested, even by the Respondent, at least in relation to the school enrolment and graduation.
What the Tribunal must do is take all the elements together – the written documents, the statements (or absence thereof) of family members, the lived experience of the Applicant’s schooling, the record of the Applicant’s professional life and career and the sworn evidence given and tested at the Tribunal hearing.
Given these uncertainties and the lack of any foolproof way of resolving this conundrum the Tribunal is thrust back to the initial question of whether or not the record should be altered and whether the Respondent has discharged the onus placed upon it by section 61 of the Act.
This is not simply a matter of some minor correction being made in generally inconsequential documents. A decision either way has consequences both for the Applicant and for the Respondent. The Applicant claims that effecting the change will open up for him a range of employment and other opportunities from which he feels excluded currently. On the other hand, as the Tribunal has pointed out matters such as his citizenship status (and all that flows from that) may be called into question.
The Applicant is aware of that and nevertheless has brought proceedings in this Tribunal which the Tribunal has a statutory duty to determine.
CONCLUSIONS
The Tribunal cannot make a definitive finding as to which of any of the alleged birth certificates is correct, there are too many inconsistencies between and surrounding each of them.
The Tribunal cannot make definitive findings as to the accuracy of the recollections and statements of the Applicant’s father in the absence of testable evidence presented in the Tribunal.
The Tribunal cannot make definitive findings in relation to other documents which have been put before it (such as driver’s licences, Medicare or student cards etc) in the absence of the primary (“breeder”) documents used to establish identity prior to their issuance.
The Tribunal places no reliance upon documents such as the Applicant’s application for citizenship which have been admitted to contain deliberately false information. The Tribunal is not required to deal further with such matters, they are for other authorities to contemplate.
The Tribunal is satisfied, in line with the approach taken in HFNB, that on the balance of probabilities the above conclusions provide no probative basis on which to settle on a definitive date as being “correct”. As a result, it is appropriate for the Tribunal to take an approach that accepts the closest approximation of the correct information.
The Tribunal is satisfied “on the balance of probabilities” that, on the basis of the school records submitted by the Applicant, he was at school in NSW between the ages of (approximately) 13 and 18 years of age and that he was not in Year 12 High School at the age of 23 years.
As a result, the Tribunal is satisfied that the correct year of birth is 1983, despite having insufficient evidence to determine which specific date in that year would be correct. In that respect, for the sake of having an exact date for the various purposes discussed, the Tribunal accepts that 11 September is as good (or bad) a date as any within that year.
The Tribunal is satisfied that, in relation to the onus cast upon the Respondent by section 61 of the Act, it has not clearly demonstrated that its records are “correct” or that ‘a decision adverse to the applicant’ should be given.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the record of the Applicant’s personal details be amended pursuant to section 50(1) of the Freedom of Information Act 1982 to record the Applicant’s date of birth as 11 September 1983.

I certify that the preceding 165 (one hundred and sixty -five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

..............................[SGD]..........................................
Associate
Dated: 14 March 2022

Date(s) of hearing: 28 February 2022

Applicant: In person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Ms A Grierson, AUSTRALIN GOVERNMENT SOLICITOR

Date(s) of hearing:	28 February 2022
Applicant:	In person
Counsel for the Respondent:	Mr T Reilly
Solicitors for the Respondent:	Ms A Grierson, AUSTRALIN GOVERNMENT SOLICITOR