YFZN and Secretary, Department of Home Affairs (Freedom of information) - [2025] ARTA 1844

YFZN and Secretary, Department of Home Affairs (Freedom of information) [2025] ARTA 1844 (18 September 2025)
Applicant:YFZN
Respondent: Secretary, Department of Home Affairs
Tribunal Number: 2024/2669

Tribunal:Deputy President P Britten-Jones
Place:Melbourne
Date:18 September 2025
Decision:The Tribunal affirms the decision under review.

.....................[SGD]...................................................
Deputy President P Britten-Jones
Catchwords
FREEDOM OF INFORMATION – request to amend personal records under Part V of the Freedom of Information Act 1982 (Cth) (FOI Act) – whether the applicant’s identity is incorrect – breadth of operation of s 58AA(2) of the FOI Act – whether s 58AA(2)(b) of the FOI Act prohibits amendment of applicant’s identity because of current protection visa application involving the same issue of identity – application under review affirmed
Legislation
Freedom of Information Act 1982 (Cth)
Freedom of Information Amendment Act 1991 (Cth)
Cases
Dixon and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2024] ARTA 2
RMBR and National Disability Insurance Agency [2021] AATA 3
Re Resch and Department of Veterans’ Affairs (1986) 9 ALD 380
WLSX and Secretary, Department of Home Affairs [2022] AATA 533
Secondary Materials
Attorney-General’s Department’s, National Identity Proofing Guidelines (10 August 2023)
Explanatory Memorandum, Freedom of Information Amendment Bill 1991 (Cth)
Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (Cth)
Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Report on the Operation and Administration of the Freedom of Information Legislation (Parliamentary Paper No 441, December 1987)
Statement of Reasons[1]
[1] These reasons have been anonymised based on a related decision under s 501K of the Migration Act so as to avoid publication of the identity of the Applicant. The two versions of the Applicant’s name are referred to as YFZN and ABC. The two dates of birth are simply referred to as 1990 and 1994.

This is an application for review of a decision of the Department of Home Affairs (the Department) made under s 50 of the Freedom of Information Act 1982 (Cth) (FOI Act) to refuse an application to amend personal records held by the Department.
The Applicant says that her correct name is ABC and her correct date of birth is in 1990. She wants these personal details to be amended in any records held by the Department. She contends that those records currently refer to her as YFZN with a birth date in 1994 because she came to Australia on a false passport with false personal details.
Part V of the FOI Act
Part V of the FOI Act provides for the amendment and annotation of personal records. Under s 48 of the FOI Act, a person can make an application to amend or annotate a personal record in certain circumstances. Relevantly, s 48 states:
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.
In relation to the amendment of records, s 50 of the FOI Act provides:
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 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.
In relation to annotation of records following an unsuccessful application for an amendment of record, section 51 of the FOI Act provides as follows:
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.
(2) Paragraph (1)(b) does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous.
(3) For the purposes of this Act, the provision by the applicant of a statement under subsection (1) is taken to be an application made under section 51A on the day the statement is so provided.
Procedural background
The Applicant made an application under s 48 of the FOI Act for amendment to the Department on 3 August 2023.[2] The Department refused the request on 26 September 2023 because the evidence provided did not meet the balance of probability test.[3] The records of the Department were not amended but they were annotated to reflect the amendment request.
[2] T-Documents T5, 42-6.
[3] T-Documents T2, 32-3.
Upon a request to the Information Commissioner for a review of the Department’s decision, a delegate of the Commissioner decided on 10 April 2024 to not review on the basis that the decision be considered directly by the Tribunal.[4] Further documents have now been provided by the Applicant for the purposes of a review by the Tribunal. In November 2024, some relevant documents were examined by the Department’s NSW Document Examination Unit for verification of their legitimacy. The Tribunal received their report as part of the evidence at the hearing. The Applicant and her brother gave oral evidence.
[4] T-Documents T8, 68-70.
The Respondent accepts that the evidence from the brother, including the ‘Family Record Book’, tends to support the conclusion that the Applicant’s correct name is ABC,[5] but contends that the identity of the Applicant remains uncertain. In any event, the Respondent relies upon s 58AA of the FOI Act which prohibits the Tribunal amending records where the amendment sought by the Applicant involves the determination of a question that the Applicant is entitled to have determined by the Tribunal in other proceedings. In this case, that question is the identity of the Applicant which is an issue for the Tribunal on an unresolved application for review relating to a Protection Visa application brought by the Applicant.
[5] Closing Submissions of the respondent dated 17 July 2025 at [3].
The evidence from the Applicant
The Applicant gave oral evidence at the hearing and through documentation as follows.
The Applicant’s name is ABC and her date of birth is 1990. Her parents and her younger brother live in an overseas country. She was born and educated in that overseas country. After finishing school she completed a university degree in pharmacy in 2013 from the International University in that overseas country. She first obtained a birth certificate in 2006.[6] She was issued with a national identity card in 2007 in the name of ABC with a date of birth in 1990.[7] In 2013, she was issued with a new national identity card in the name of ABC with a date of birth in 1990.[8]
[6] T-Documents, ABC Birth certificate and translation at T5, 53-4 (and at T6, 58-9).
[7] ABC National identity card issued 18 December 2007 and translation at T6, 55-6.
[8] ABC National identity card issued on 26 February 2013 and translation at T5, 47-8.
She decided to leave the overseas country and come to Australia because her parents tried to arrange her marriage to a man she did not want to marry.
She made enquiries about coming to Australia and she paid a man to provide her with a false passport and to arrange all the affairs necessary to get to Australia. She gave the man a passport photo and did what she was told to do. She did not tell her family about her plan.
On the day she was leaving, she was provided with a passport at the airport. She met the people she was travelling with, one of whom was supposed to be her father. She asked about her name being changed to YFZN on her passport and she was told that she could change it back to her name when she got to Australia. She arrived in Australia on 25 November 2014 using her false passport.
She settled in Australia but after a while she wanted to change back her name. The man who was supposed to be her father told her to wait but after some time she was no longer able to make contact with him, so she sought legal help. Later she received a letter from the Department to her supposed father dated 8 January 2018 inviting her and the other three members of her assumed family to comment on adverse information the Department had received regarding the validity of their identity documents. The letter advised that the Department had found that birth certificates, including in the name of YFZN, were bogus. The birth certificate impugned by the Department was in the name YFZN with a date of birth in 1994.[9] The Applicant said that she never had a copy of this document.
[9] YFZN Birth certificate and translation at ST10 and ST11, 8-9.
On 21 February 2018, the Applicant arranged for documents which identified her as ABC to be translated into English. The Applicant’s birth certificate[10] and national identity card (issued 18 December 2007)[11] both contain the stamp of a translator’s certification dated 21 February 2018. On 23 February 2018, she applied for a protection visa using her true name and date of birth. Despite the Department’s findings as to the bogus YFZN birth certificate, on 15 March 2018, the Department granted a bridging visa under the name of YFZN born 1994. Thereafter she continued to use the name of YFZN until she applied for a passport from the overseas country in 2022. For example, in 2017, the Applicant applied for a driver’s licence[12] in the name of YFZN using her false passport[13] as identification.
[10] ABC Birth certificate and translation at T5, 53-4 (and at T6, 58-9).
[11] ABC National identity card issued 18 December 2007 and translation at T6, 55-6.
[12] YFZN driver’s licence at T3, 39.
[13] YFZN passport at T6, 57.
On 20 July 2022, a delegate of the Minister for Home Affairs refused the Applicant a protection visa (the Protection Visa refusal decision) and made a finding that her identity was YFZN with a date of birth in 1994. The protection visa decision record dated 20 July 2022 notes ABC as an alias but includes a finding that the Applicant’s identity is:
(a)Name:   YFZN
(b)Date of birth:               1994
(c)Country of birth:         Overseas country
(d)Country of citizenship: Overseas country
The Applicant has lodged with the Tribunal an application for review of the Protection Visa refusal decision, but it is yet to be heard.
The Applicant approached the overseas country’s embassy in Canberra and her brother in the overseas country to assist with her passport application in the name of ABC. She provided the embassy with her national identity card issued on 18 December 2007 in the name of ABC with a date of birth in 1990,[14] which was the identity card she had brought with her from the overseas country. The Applicant explained that she cannot remember why, but she did not bring to Australia her most recent national identity card which had been issued on 26 February 2013. On 7 December 2022, the overseas country’s embassy issued a certificate, in the name of ABC with a date of birth in 1990, for her brother to assist in making an application for an overseas passport.[15] On 29 December 2022, she was issued with an overseas passport in the name of ABC with date of birth in 1990.[16]
[14] ABC National identity card issued 18 December 2007 and translation at T6, 55-6.
[15] BC Certificate and translation at T1, 11-12.
[16] ABC passport at T5, 49.
On 23 July 2023, the Applicant got married in Springvale, Victoria. The certificate of marriage is in the name of ABC.[17]
[17] ABC marriage certificate at T5, 50.
On 3 August 2023, the Applicant requested[18] that the Department’s records be amended to reflect:
(a)her correct name: ABC; and
(b)her correct date of birth: 1990.
[18] T-Documents T5, 45.
On 12 April 2024, the Applicant lodged with the Tribunal her application for review attaching further documents in support of her name being ABC. Those documents included an English translation of a certificate given on 5 October 2023 from a village chief that ABC, born 1990, was born and lived in a certain province.[19] The Applicant gave evidence about the other documents provided with the application for review which mostly related to her university education, namely an official transcript of academic records,[20] an academic certification that ABC has completed a bachelor degree in Pharmacy,[21] student identification cards,[22] a President certificate of completion of foundation year course,[23] an identification card for year 12 studies,[24] certificate of graduation for pharmacy degree,[25] certificate for completing year 12,[26] the official certificate for the bachelor degree in pharmacy[27] (the Applicant explained that it was issued after she left the overseas country and that she had to wait for it to be provided) and a certificate and academic transcript for foundation year course.[28] These documents are all in the name of ABC and any birth dates thereon are in 1990.
[19] Village chief certificate at T1, 13. The original document has not been provided.
[20] T1, 14.
[21] T1, 15.
[22] T1, 16.
[23] T1, 17.
[24] T1, 18. See also Supplementary T-Documents ST9, 6 within the document examination report.
[25] T1, 19.
[26] T1, 20
[27] T1, 21 and T5, 52.
[28] T1, 22.
The Department’s Document Examination Report
None of the documents referred to in the above paragraph were provided to the Department’s document examination unit for verification except for the education identity card issued in 2008.
The documents examined by the Department’s document examination unit were:[29]
(c)YFZN passport issued 15 March 2014;
(d)ABC passport issued on 29 December 2022;
(e)ABC national identity card issued 18 December 2007;
(f)ABC national identity card issued 26 February 2013;
(g)ABC education identity card issued in 2008;
(h)ABC Birth certificate.
[29] Supplementary T-Documents ST9, 1.
Both the YFZN and ABC passports were verified as legitimately manufactured documents.[30] The ABC national identity card issued 18 December 2007 was verified with “qualified support” that it is a legitimately manufactured document.[31] The ABC national identity card issued 26 February 2013 was verified as a legitimately manufactured document.[32] The results for the education document and birth certificate were inconclusive.[33] The author of the report was not called to give evidence and the body of the report was fairly limited in that there was very little explanation for the opinions expressed.
[30] Ibid 2.
[31] Ibid.
[32] Ibid 3.
[33] Ibid 4.
The oral evidence from the brother
I pause to note how it was that the brother came to give evidence to the Tribunal. Near the end of cross examination of the Applicant, just before lunch, she said that she had little recent contact with her parents, but she had contact with her auntie and her younger brother. I asked if her brother was available to give evidence. She said she could get him to give evidence and it was arranged over the lunch break. It is apparent that, until this time, no arrangement had been made for the brother to give evidence.
Soon after lunch, the brother joined the hearing by MS Teams and gave his evidence as follows.
He is the biological brother of ABC whom he recognised on the video link. He lives in the overseas country and last saw his sister in 2014.
In 2022 his sister contacted him about a new passport. His sister sent him an embassy authority document[34] so he could make arrangements for the issue of a passport in the overseas country. He received no other documents from her, but he had access to some of his sister’s identification documents which he provided for the passport application. Those documents included the ABC national identity card issued 26 February 2013,[35] (which she had left behind in the overseas country) and the ABC birth certificate.[36] In addition, he showed and provided to the Tribunal his national identity card (to prove his own identity) and the Family Record Book which records the names and dates and places of birth for his parents and their two children, namely himself and his sister, ABC whose birth date is recorded as 1990. The place of birth recorded for the Applicant in the Family Record Book is consistent with both of the ABC national identity cards. The brother was able to show the original Family Record Book by video and he sent a copy of it to the Tribunal by email. The Family Record Book is an important document in the overseas country which every family must have and which is registered with the police. The Family Record Book that was shown to the Tribunal appeared to be authentic, especially given the brother had no time create bogus documents.
[34] T-Documents T1, 12.
[35] XYZ National identity card issued on 26 February 2013 and translation at T5, 47-8.
[36] XYZ Birth certificate and translation at T5, 53-4 (and at T6, 58-9).
I asked the brother about the numbering on his national identity card which was sequential to the numbering on ABC’s national identity card. He explained that the sequential numbering would have been because he and his sister went together to get their national identity cards. I note that they were issued with sequential numbers ending with 189 and 190.
Consideration of the evidence as to identity
After the brother’s evidence, I was left in no doubt at all that his evidence was truthful and that he was the brother of ABC. There was no opportunity for him to rehearse his evidence or to manufacture documentary evidence. His evidence was entirely consistent with and corroborated the evidence of his sister. He gave compelling evidence about how he and his sister obtained their national identity cards together in 2013 which resulted in the sequential numbering on the cards.
The national identity card is an important document which identifies the Applicant as ABC with a date of birth in 1990. There is no doubt about its veracity based on the evidence from the brother and because the Department’s document examination report said that it is a legitimately manufactured document for the following reasons:[37]
(a)it exhibits the manufacturing security characteristics expected in a … identity card of this series.
(b)the security characteristics introduced during the document personalisation process are intact and operating effectively.
(c)there is no evidence of alteration to the personal data, including the photograph.
[37] Supplementary T-Documents ST9, 3.

The Applicant has provided an explanation for why she came to Australia using a false name and date of birth. As a vulnerable immigrant, it is not surprising that she delayed before taking action to revert to her real name. I was impressed with the Applicant as a witness. She displayed candour and her evidence was materially consistent with the documentary evidence. There is significant documentary evidence dating from her time in the overseas country which establishes that the Applicant’s name is ABC and her date of birth is in 1990.
The most important document which establishes her name and date of birth is the national identity card issued on 26 February 2013 which has been verified as legitimate by the Respondent’s expert, who also gave qualified but positive support with respect to the Applicant’s national identity card issued in 2007 which also identifies her as ABC with a birth date in 1990. The name and date and place of birth of the Applicant is the same on the two national identity cards and the Family Record Book. The Applicant’s evidence about her family, where she grew up and her education in the overseas country is consistent with the evidence of the Family Record Book, the educational certificates and other documents provided to the Tribunal. These documents consistently refer to the Applicant as ABC with a date of birth in 1990.
Since being in Australia, the Applicant has often used her real name of ABC which now appears on official documents such as her overseas passport and her marriage certificate. The Department’s own investigations have found that the YFZN birth certificate (one of the few documents in the name of YFZN) was bogus. That bogus document wrongly recorded the Applicant’s father and wrongly recorded her place of birth. The other document in the name of YFZN is the passport issued in March 2014 for which there is a plausible explanation, namely that it was fraudulently prepared by the people smugglers who organised for the Applicant to come to Australia.
The FOI Guidelines at [7.49] provide that where a document is crucial and its authenticity is in doubt, the decision maker should seek the help of their agency fraud prevention services if available and if doubt remains about a document’s authenticity, it may be preferable to annotate rather than amend the record.[38] Having read the report from the Department’s document examination unit and having heard evidence from the Applicant and her brother, it is my view that no doubt remains about the authenticity of the ABC national identity card issued on 26 February 2013. The brother’s evidence supports the authenticity of the ABC national identity card and the information it records about the Applicant’s identity. This is not a case like those discussed in WLSX and Secretary, Department of Home Affairs[39] where there is conflicting evidence, or no or little evidence, to support the correct date of birth.
[38] Office of the Australian Information Commissioner, FOI Guidelines: Guidelines issued under s 93A of the Freedom of Information Act 1982 (Cth) (‘FOI Guidelines’).
[39] [2022] AATA 533.
I have taken into account that the question of the Applicant’s identity was considered by the delegate of the Minister on the application for a protection visa. In the Protection Visa refusal decision, the delegate found that the Applicant’s identity was YFZN, but it appears from the decision record that the only two documents that were provided relevant to identity were the YFZN passport and the ABC national identity card issued on 18 December 2007.
The Applicant told this Tribunal that her application for a protection visa was brought in the name of ABC. I note from the Protection Visa decision record there is a reference to an alias, ABC. The focus of the Protection Visa refusal decision was the Applicant’s claim that her parents had forced her into an arranged marriage. This claim was rejected. Further, the delegate was satisfied that there was sufficient evidence of the Applicant’s identity as YFZN with a date of birth of 1994. The delegate said in her reasons that the Applicant delayed applying for a protection visa as she held a valid visa and had applied for a permanent visa, although in a different name.[40] It appears that very little evidence as to identity was provided to the delegate compared to the amount of evidence provided to the Tribunal on this application. Given the current application to the Tribunal for review of the Protection Visa refusal decision, I would expect that the issue of the Applicant’s identity will be considered again by the Tribunal upon the hearing of the review application.
[40] Protection Visa Decision Record dated 20 July 2022 at page 4 first dot point (‘Protection Visa Refusal Decision’).
I consider that the evidence before the Tribunal is overwhelming that the Department’s records referring to YFZN with a date of birth in 1994 are incorrect. The evidence establishes that her name is ABC and that her date of birth is in 1990. Subject to s 58AA(2) of the FOI Act, the Department’s records should be amended to reflect that the Applicant’s real name and date of birth are ABC and 1990.
Section 58AA of the FOI Act
Section 58AA provides a limitation on the Tribunal amending records on an application for review. The limitation is found in s 58AA(2) which relevantly provides:
(2)  The Tribunal must not, in a decision on an application under section 57A make a decision that requires, or that has the effect of requiring, that an amendment be made to a record if it is satisfied of either of the following:
(a)  the record is a record of a decision, under an enactment or a Norfolk Island law, by a court, tribunal, authority or person;
(b)  the decision whether to amend the record involves the determination of a question that the person seeking amendment of the record is, or has been, entitled to have determined by the agency (on internal review), the Information Commissioner, a court or tribunal.
The same limitation applies to the Information Commissioner under s 55M of the FOI Act. The FOI Guidelines with respect to the Information Commissioner apply to the Tribunal exercising a right of review.
The predecessor to s 58AA was s 55(6) which came into effect via the Freedom of Information Amendment Act 1991 (Cth). It provided:[41]
[41] As inserted by s 35 (e).
(6) The Tribunal must not, on a review of a decision of a kind mentioned in
paragraph (1) (g), make a decision that requires, or has the effect of
requiring, an amendment to be made to a record if it is satisfied that:
(a) the record is a record of a decision, under an enactment, by a court,
tribunal, authority or person; or
(b) the decision whether to amend the document involves a determination of
a question that the applicant concerned is, or has been, entitled to
have determined by a court or tribunal (other than the Tribunal); or
(c) the amendment relates to a record of an opinion to which neither of
the following applies;
(i) the opinion was based on a mistake of fact;
(ii) the author of the opinion was biased, unqualified to form the opinion
or acted improperly in conducting the factual inquiries that led to
the formation of the opinion.
The Explanatory Memorandum to the Freedom of Information Amendment Bill 1991 (Cth) stated at [72]:
Clause 35(e) also inserts a new sub-section 55(6) to implement a Senate Committee recommendation that guidelines be inserted in the Act to better define the circumstances in which review of agency decisions to refuse to amend or to annotate records will be available. Paragraphs 55(6)(a), (b) and (c) state the instances which the Senate Committee proposed as constraints on any review of decisions relating to correction of records.
It would appear that the genesis of the statutory limitation on amending records was the above-mentioned recommendation in a 1987 report entitled Report on the Operation and Administration of the Freedom of Information Legislation by the Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia.[42] The report considered the role of Part V of the FOI Act relating to the amendment and annotation of personal records and noted that:
[15.10] … Chaos would result if Part V could be used to re-litigate before the Tribunal disputes resolved by other tribunals, courts, boards of inquiry etc.
[42] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Report on the Operation and Administration of the Freedom of Information Legislation (Parliamentary Paper No 441, December 1987) (‘Senate Standing Committee 1987’).
The report noted a possible limitation that Part V should not be able to be used to mount a collateral attack on a determination made pursuant to statute.[43]
[43] Ibid [15.14].
The Senate Committee report referred to a Tribunal decision of Re Resch and Department of Veterans’ Affairs[44] in which Mr Resch applied under Part V of the FOI Act to amend the record of doctors’ opinions which had formed the basis for a disability pension determination by the Repatriation Commission. In addition, Mr Resch sought to amend the Commission’s determination itself. Despite there being no statutory limitation on amending records at that stage, the Deputy President refused to allow amendments to the Commission’s determination or the medical opinions. He considered that Mr Resch was mounting a collateral challenge to a determination made by an administrative authority pursuant to its statutory duty. His view was that the more appropriate venue for Mr Resch was through the review provisions of the Repatriation Act, but he added:[45]
If there is any mechanism available whereby the substantive question as to the true nature of Mr Resch’s special disease can be brought before the VRB and ultimately (if need be) before this Tribunal, it would, in my view, be most desirable that Mr Resch should be given the opportunity to initiate such a review.
[44] Ibid at footnote 16; (1986) 9 ALD 380 (‘Resch’).
[45] Resch (n 43) 390 [41].
The Senate Committee made a recommendation based on the approach of the Tribunal in Resch:
[15.15] The Committee is strongly of the view that amendment under Part V should not be available for records of statutory determinations where the only argument for amendment is that the determination is wrong in substance, as opposed to incorrectly recorded. Other avenues of review are generally available for the review of determinations. Where no other avenue is available (either because it never existed or it has become time-barred), it must be assumed that, as a matter of policy, there is to be no review: Part V is not to become a catch-all.
The above recommendation resulted in s 55(6)(a) of the earlier FOI Act and subsequently, s 58AA(2)(a) which prohibit an amendment to a record of a decision made under an enactment by a court, tribunal, authority or person.
The Senate Committee also addressed what it described as a more difficult issue:
[15.16] A more difficult issue arises where the amendment request relates to the facts or opinions upon which the determination rests rather than the record of the determination itself. The accuracy of the record may have been the only issue in the original litigation. Part V review will therefore result in the same issue being litigated.
(citations removed)
It was noted that in the United States collateral attacks on agency determinations were not permitted and therefore it was not permitted to alter evidence presented in the course of judicial or quasi-judicial proceedings.[46] The Senate Committee took the view that the evidence upon which a determination relies should not be open to amendment under Part V.[47]
[46] Senate Standing Committee 1987 (n 41) [15.17].
[47] Ibid [15.18].
Further, the Senate Committee recommended a rule to prevent matters being litigated under Part V on the ground that they are more appropriately dealt with by other tribunals or courts. It was recognised that the amendment process should not trespass on the jurisdiction properly given to other courts and tribunals. These comments were made before the amalgamation of other tribunals into the Administrative Appeals Tribunal in 2015. The reference to other tribunals would apply now to other jurisdictional areas of the Administrative Review Tribunal such as Social Security, Migration and Protection.[48]
[48] See s 196 of the Administrative Review Tribunal Act 2024
The above recommendations resulted in s 55(6)(b) of the earlier FOI Act and subsequently s 58AA(2)(b).
Construction and application of section 58AA(2)(a)
The construction of s 58AA(2)(a) is relatively simple – it operates to prohibit the Tribunal amending a record of a decision made under an enactment. This simple construction is confirmed by the Tribunal in RMBR and National Disability Insurance Agency[49] in which Deputy President Pascoe said:
[26] In my opinion, the clear intent of section 58AA(2)(a) of the FOI Act is to limit the Tribunal’s jurisdiction so that it does not have the power to amend the entirety of the record nor to amend particular sentences which of themselves constitute part of the record of a decision.
[49] [2021] AATA 3 (‘RMBR’).
The Applicant’s counsel clarified in oral submissions that the Applicant was not seeking to amend the record of the Protection Visa refusal decision made by the delegate of the Minister for Home Affairs. Assuming that the record of the Protection Visa refusal decision is an internal record of the Department (noting that it is not a decision of the Department), there is no dispute that s 58AA(2)(a) would prohibit the Tribunal from amending the record of that decision.
Construction and application of section 58AA(2)(b)
Section 58AA(2)(b) has multiple elements. It operates to prohibit the Tribunal amending a record if:[50]
(a)the decision whether to amend the record (namely the decision required on the current amendment application that may be made under s 50(1) of the FOI Act)
(b)involves the determination of a question (this is a question that arises on the current amendment application) that
(c)the person seeking amendment of the record (namely the Applicant)
(d)Is entitled (this suggests a current entitlement), or
(e)has been entitled (this suggests a past entitlement)
(f)to have determined (this is a reference to the determination of the same question as in (b) but arising in a different process) by
(g)the agency (on internal review), the Information Commissioner, a court or tribunal (this is a reference to four decision-makers, any one of whom, could determine, or could have determined, that same question in a different process).
[50] I have included my comments in brackets after the extract of words taken from s 58AA(2)(b).
The FOI Guidelines say at paragraph 10.127(b) that the Tribunal should not amend a record if that would involve determining an issue that a person either is, or could be, entitled to have decided in another process (by certain decision-makers). The FOI Guidelines continue as follows:
This means that the [Tribunal] does not have the power to require amendments that rely on the [Tribunal] making another decision first that could be made by … a tribunal (such as deciding whether a person is eligible for a visa).
Section 58AA(2)(b) requires consideration as to whether the same question arises for determination on both the current amendment application and some other application or process by the Applicant seeking a decision by another decision-maker (namely an agency, the Information Commissioner, a court or tribunal). If the amendment application involves the same question that the Applicant could have determined in another process by an agency, the Information Commissioner, a court or a tribunal, then the Tribunal is prohibited by s 58AA(2)(b) from making the amendment. This means that the Tribunal would usually not determine an issue on an amendment application if that same issue could be determined by another decision-maker in another process or application.
The question posed by s 58AA(2)(b) in this case is as follows: does the decision whether to amend the record involve the determination of a question that the Applicant is, or has been, entitled to have determined by the Tribunal on the Protection Visa application? The first step in answering that question is to formulate the question to be determined when deciding whether to amend the record. The second step is to ask whether that question is one that the Applicant is, or has been, entitled to have determined in the other process, namely the protection visa application before the Tribunal. If so, then the prohibition will apply.
What is the relevant question for determination on the amendment application?
With respect to the first step, one would have regard to the Applicant’s request dated 3 August 2023 to the Department to amend their records from YFZN with a birth date in 1994 to ABC with a birth date in 1990. The question for determination is “What is the correct identity of the Applicant?”
The case law as to identity in the citizenship context[51] provides that the question of a person’s identity is not limited to a consideration of their name. The issue of identity is considered in the Attorney-General’s Department’s National Identity Proofing Guidelines which say:
2.1.1 A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.
[51] See Dixon and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2024] ARTA 2 and the cases cited therein
The question of identity to be determined on the amendment application relates to both the Applicant’s name and date of birth.
What is the question that the Applicant is entitled to have determined on the review of the Protection Visa refusal decision?
With respect to the second step, it is apparent from the Protection Visa refusal decision that the question as to the Applicant’s name and date of birth was determined by the delegate of the Minister as part of the assessment of the Applicant’s identity, although, as stated earlier in these reasons, there was very little evidence as to identity.
Although not the subject of any contention by either party, I note in passing that the delegate of the Minister would not come within the group of decision-makers named in s 58AA(2)(b), namely the agency (on internal review), the Information Commissioner, a court or tribunal. It follows that the past decision of the delegate of the Minister cannot be relied upon for the purposes of s 58AA(2)(b) because it cannot be said that the Applicant ‘has been, entitled’ to have the question of identity determined by the agency, the Information Commissioner, a court or tribunal. Nevertheless, as stated earlier in these reasons, the delegate of the Minister (who made the Protection Visa refusal decision) does come within the more broadly defined group of decision-makers in s 58AA(2)(a), namely a court, tribunal, authority or person. Therefore, as found earlier in these reasons, the decision of the delegate of the Minister forms the basis for a prohibition under s 58AA(2)(a) with respect to an amendment of the record of that decision.
Further, and most relevantly for the purpose of s 58AA(2)(b), the question of identity that was determined by the delegate is one that the Applicant ‘is … entitled’ to have determined by the Tribunal on the application for review of the Protection Visa refusal decision. The Tribunal will need to satisfy itself as to the Applicant’s true identity. Public Interest Criterion (PIC) 4020 requires consideration of the Applicant’s identity.
The example of the visa in the FOI Guidelines is apposite to this case because of the current application to the Tribunal for the review of the Protection Visa refusal decision. The question of the Applicant’s identity is a question to be determined on that application. The decision whether to amend the record involves the determination of that same question. It follows that s 58AA(2)(b) is satisfied because the decision whether to amend the record involves determination of a question that the Applicant is entitled to have determined by the Tribunal on the application for review of the Protection Visa refusal decision.
A broader application of s 58AA?

The Respondent made a further contention that s 58AA(2)(b) is satisfied because a determination about the Applicant’s true identity is also a question that would arise squarely for determination in any future citizenship application under the Australian Citizenship Act 2007 (Cth). I do not need to consider this further contention because of my above finding that the amendment sought is prohibited. However, I will do so because the parties made submissions on it and because it raises an interesting question about the breadth of the potential application of the prohibition in s 58AA(2)(b).
I refer back to the Senate Committee’s recommendation to impose a rule to prevent matters being litigated under Part V on the ground that they are more appropriately dealt with by other tribunals or courts. The difficulty of devising an effective rule to prevent matters being litigated under Part V on the ground that they are more appropriately dealt with by other tribunals or courts was acknowledged by the Senate Committee who said:
[15.22] … Most, if not all, matters which could be litigated under Part V could also be resolved either directly or indirectly by proceedings before another body. Therefore, the test cannot be that Part V review is excluded where some other avenue of redress is available, else Part V review will seldom, if ever, be available.
[15.23] On the other hand, if a line is not drawn somewhere, the amendment process will trespass on the jurisdiction properly given to other courts and tribunals. One option would be to identify particular areas into which the Part V review is not to enter.
[15.24] The identification of all such areas would be difficult, of course, and some general rules would be preferable.
(citations removed)
Section 58AA(2)(b) ensures that the amendment process in Part V of the FOI Act does not trespass on the jurisdiction given to other courts and tribunals to resolve a question that arises on the amendment application. I accept the Respondent’s contention that the question of the Applicant’s identity is a question that the Applicant would be entitled to have determined on a citizenship application; however, the requirement of s 58AA(2)(b) is that it is a question the Applicant is, or has been, entitled to have determined. In my view, the phrase “is, or has been” requires a current or past entitlement and not a future entitlement based on a potential application being brought in the future.
The phrase “entitled to have determined” in s 58AA(2)(b) should not be a given a broad interpretation because otherwise it could potentially apply, for example, to all non-citizens with potential rights under the Australian Citizenship Act 2007 (Cth) irrespective of whether they have a current citizenship application on foot or whether they have any intention of bringing such an application. In my view, an entitlement to have a question determined should be limited to a situation where there is a current process or application in place where that same question arises.
Conclusion
I am satisfied that the decision whether to amend the record involves the determination of the question as to the Applicant’s identity which is a question that the Applicant is entitled to have determined by the Tribunal on the Protection Visa review application. It follows that the Tribunal is prohibited by s 58AA(2)(b) from making the amendments sought by the Applicant.
I find that in so far as the Department’s records consist of a decision under an enactment (such as the granting or rejecting of a visa under the Migration Act 1958 (Cth)), the Tribunal would be prohibited by s 58AA(2)(a) from making any amendment. No doubt some of the Department’s records fit into this category.
Should the prohibition in s 58AA be considered as a preliminary issue?
The effect of my finding is that this application to amend under Part V of the FOI Act is not the appropriate forum for determination of the question as to the Applicant’s identity. It could be said that the Applicant in bringing this application to amend her personal records was mounting a collateral challenge to the finding of identity made by the delegate of the Minister in the Protection Visa refusal decision. Part V of the FOI Act should not be used as a ‘back-door method for review’[52] of statutory decisions. However, despite having found for the Respondent on this application, I do have some sympathy for the position the Applicant finds herself in. She can expect a very significant delay before resolution of her Protection Visa review application in the Tribunal. Further, the original decision of the Department dated 26 September 2023 did not rely upon or raise the prohibition to amendment under s 58AA, and nor did the decision of the Information Commissioner dated 10 April 2024. Indeed, the Applicant was led to believe, based on the reasons for decision of the Information Commissioner, that her application would require a formal hearing involving cross examination on the question of identity:[53]
The decision under review, to refuse to amend a personal record, is complex due to the nature of the information the applicant seeks to amend and the evidence on which the decision was based (including the circumstances in which the original information was provided) and the circumstances of making an amendment, where relevant. For example, it is reasonably likely to contended that to reach resolution of the matter requires a formal hearing to enable oral submissions, and cross examination of the primary pieces of self-reported evidence. This approach is more suited to the processes of the AAT then the IC review process, which is intended to be informal and non-adversarial.
(citations removed)
[52] RMBR (n 47) [20].
[53] T-Documents, Decision of the Information Commissioner dated 10 April 2024 at T8, 69.
It appears that the Respondent’s Statement of Facts, Issues and Contentions dated 24 February 2025 first raised the prohibition in s 58AA(2) and then only in the context of why the discretion in s 50(1) of the FOI Act should not be exercised in the Applicant’s favour. It was not until the Respondent’s closing submissions in writing on 17 July 2025 that the Respondent fully articulated the argument based on the limitation on the Tribunal’s power to amend under s 58AA. It is unfortunate that the s 58AA prohibition was not raised earlier, although that is probably explained by the lack of Tribunal or judicial guidance with respect to s 58AA(2)(b).
If a respondent to an amendment request under Part V of the FOI Act considers that it raises a question which should be determined in another forum, and that s 58AA would prohibit the amendment sought, then it would be preferable that it be dealt with as a preliminary issue to avoid the expense and delay of fully litigating the question in the Part V proceedings.
When the Department of Home Affairs received, on 3 August 2023, the Applicant’s request for an amendment to the Applicant’s identity in personal records held by the Department, it should have been aware of the decision of the delegate of the Minister for Home Affairs dated 20 July 2022 which found that the Applicant’s identity was YFZN with a date of birth in 1994.
Both the Applicant and the Respondent went to some lengths to put forward evidence as to identity, only for the Applicant to be told that this is not the appropriate forum for the determination of the question as to identity. For example, the Respondent arranged for some of the Applicant’s documents to be examined by the Department’s document examination unit who prepared a report that was relied upon in this application. The Applicant collated further documents relevant to her identity and arranged for lengthy written submissions dated 30 August 2024 and 11 February 2025.
It would be a shame for this effort to go to waste. I say this in particular because I am aware of the very significant back log of protection visa applications facing the Tribunal which, without some intervention, I expect will result in the Applicant’s protection visa application not being determined for some years. This means that the issue of the Applicant’s identity may also not be resolved for some years, which would be unfortunate for the Applicant. I would hope in these circumstances that the Applicant’s review application of the Protection Visa refusal decision in the jurisdictional area of Protection could be brought forward for determination by the Tribunal.
Decision
The Tribunal is prohibited by s 58AA(2) from making the decision to amend personal records as requested by the Applicant. The decision by the Department dated 26 September 2023 to refuse to amend the personal records should be affirmed on that basis.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

.......................[sgd].................................................
Associate
Dated: 18 September 2025

Date(s) of hearing: 4 July 2025

Date(s) of receipt of final submissions:
25 July 2025

Applicant’s Representative: Mr Ricardo Balancy (YC & Associates Legal Firm)

Respondent’s Counsel Ms Olivia Cameron

Respondent’s Representative: Australian Government Solicitor

Date(s) of hearing:	4 July 2025
Date(s) of receipt of final submissions:	25 July 2025
Applicant’s Representative:	Mr Ricardo Balancy (YC & Associates Legal Firm)
Respondent’s Counsel	Ms Olivia Cameron
Respondent’s Representative:	Australian Government Solicitor