Zerea and Anor and Minister for Immigration and Citizenship

[2009] AATA 425

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 425

ADMINISTRATIVE APPEALS TRIBUNAL      )

)Nos     2008/5409

)2008/5410

GENERAL ADMINISTRATIVE DIVISION		)
Re		WUDASE ZEREA RUSSOM MEAIE

Applicants

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms Regina Perton, Member

Date12 June 2009

PlaceMelbourne

Decision The Tribunal affirms the decisions under review.

(sgd) Regina Perton

Member

FREEDOM OF INFORMATION – application to amend personal information – date of birth – whether information is incomplete, incorrect, out of date or misleading – discretion to amend – decision affirmed.

Freedom of Information Act 1982 ss 48, 50

REASONS FOR DECISION

12 June 2009 Ms Regina Perton, Member          

1.      Ms Wudase Zerea arrived in Australia in October 1996. She became an Australian citizen in 2002.  Her husband, Mr Russom Meaie, arrived in Australia in June 2007.  The Department of Immigration and Citizenship (the Department) has recorded Ms Zerea’s date of birth as 20 January 1952.  Mr Meaie’s date of birth in the Department’s records is 10 December 1946.  On 9 May 2008, Ms Zerea and Mr Meaie applied to the Minister for Immigration and Citizenship (the Minister) for amendment of their dates of birth.  Ms Zerea states that she was born in 1944 not 1952.  Mr Meaie states that he was born in 1934 not 1946.

2.      The Minister’s delegate refused the applications to amend the records on the basis that she was not satisfied that the Department’s records were incorrect or that the claimed dates of birth were any more likely to be correct than the recorded dates.  The applicants sought review of the decision on 24 November 2008.

3.      The issues for the Tribunal are whether the Department’s records contain the incorrect dates of birth for the applicants; and if so, whether the Tribunal should exercise its discretion to have the records amended.

Relevant legislation

4. Section 48 of the Freedom of Information Act 1982 (the Act) provides for amendment of personal records held by the Department:

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(a)  that is incomplete, incorrect, out of date or misleading; and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.

5. Section 50(1) of the Act sets out the circumstances in which a Minister may amend the record of information:

(1) …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.

The Department’s records

6.      The Department has a number of documents provided on behalf of Ms Zerea which record her year of birth as 1952.  These include:

·An application for migration lodged on 23 January 1995 in which Ms Zerea’s date of birth is given as 20 July 1952.

·A letter dated 20 December 1995 written by Sherron Dunbar of the Springvale Community Aid and Advice Bureau to the Australian High Commission in Kenya.  Ms Dunbar’s client was Ms Zerea’s daughter.  She gave her mother’s date of birth as 20 July 1952.

·A document prepared by the Kenyan office of the United Nations High Commissioner for Refugees (UNHCR) on 27 May 1996 gives Ms Zerea’s date of birth as 00/00/1952.

·An application for migration by and sponsorship for Mr Meaie lodged on 21 September 2005 which records Ms Zerea’s date of birth as 20 January 1952. 

7.      In October 1999 Ms Zerea unsuccessfully sought to amend her date of birth in the Department’s records.  Ms Zerea provided a birth certificate and a baptismal certificate which showed her date of birth as 20 July 1948.

8.      In May 2008 Ms Zerea provided the Department with a baptismal certificate showing a date of birth of 20 January 1944. 

9.      The Department has a number of documents which record Mr Meaie’s year of birth as 1946.  These include:

·Ms Zerea’s application for a visa lodged on 23 January 1995 which records Mr Meaie’s date of birth as 26 October 1946.

·Mr Meaie’s application for migration lodged on 21 September 2005 which records Mr Meaie’s date of birth as 10 December 1946.

·An Eritrean Police Clearance Certificate dated 22 March 2006 which gives Mr Meaie’s date of birth as 10 December 1946.

10.     In May 2008 Mr Meaie provided the Department with a baptismal certificate showing his date of birth as 10 December 1934.  The date of baptism on that certificate is 20 January 1934.

Basis for the applicants’ claims

11.     The applicants state that the discrepancy in dates has arisen because of differences between the Ethiopian calendar and the Gregorian calendar. 

Are the Department’s records wrong?

12.     The Department provided calendar conversions from the internet website which allows for conversions from a wide range of calendars to the Gregorian calendar used in Australia and other western countries.  The difference between the two calendars is that the Ethiopian calendar is approximately 7 years and 8 months behind the Gregorian calendar. 

13.     Ms Zerea and Mr Meaie submitted that they were disadvantaged due to the lack of records in the previously war-torn area in which they were born and lived.  They submitted that they had nothing to gain by having the right record of their age.  They also stated that they are not aware what dates were given in certificates previously presented to the Department nor what had been provided in their applications for their migration.  They stated that their lack of education and health complications were also factors leading to the wrong dates being given at earlier times.  Memory loss was also given as a factor. 

14.     In oral evidence, with an interpreter facilitating communication, Ms Zerea was asked questions about her family and marriage.  Ms Zerea said that she was married when she was about twelve years old.  She said that she had given birth to 13 children with 11 of them surviving.  She said that she had her first child when she was about 16 years old.  Mrs Zerea said that she has three sons and three daughters in Australia.  Two of her daughters are in Adelaide and the rest in Melbourne.   

15.     Ms Zerea said that wherever she goes, people think she is older than the age recorded in her Australian documents.  She referred to conversations with her general practitioner who, she said, believed she was much older than her recorded age based on bone density testing and the medical conditions from which she suffers.  She cited a letter written by her general practitioner, Dr A.C. Patrick, on 11 August 2008 in which he stated:

Dear Sir/Madam

re:  Wudase Zerea

DOB 20/01/1952?

Mrs Zerea’s stated date of birth, in my opinion, does not correspond with her appearance.  She suffers from insulin dependent diabetes.  Could you please amend this.

16.     Asked how she obtained the baptismal certificate on which she was now basing her claim to be born in 1944, Ms Zerea said that she had been given the document by a priest in Ethiopia when she travelled overseas.    

17.     Asked why none of her children were providing supporting evidence, she said that she is not in regular contact with her daughter, Genet, who sponsored them to Australia.  Ms Zerea said that Genet was her fourth child.  She said that she had last seen Genet about a week before the hearing.  Ms Zerea said that her relationship with Genet had deteriorated since she and her husband had accused her of creating the mess they were now in concerning their ages.  She said that Genet had argued with her father and is angry with her parents over their accusations that she gave the wrong dates on documents relating to their migration.  

18.     Ms Zerea said that she had been seeking to have her age amended ever since she arrived in Australia.  She said that the reason she was seeking amendment was because of her medical treatment.  Asked why an age of 65 would result in different medical treatment than if she was 56 years old, Ms Zerea said that she thought that the right age mattered. 

19.     Ms Zerea, who is illiterate, said that she does not know what date of birth was recorded for her in documents prepared prior to her migration.  She could not recall whether Genet, who arranged for her sponsorship, told her the date written in the forms.  Ms Zerea said that she cannot remember anything from her time in a Kenyan refugee camp.  Ms Zerea could not recall that she had made a previous application for a change to her records and that she had stated at that time that the correct year was 1948.  She could not remember providing a birth certificate to the Department at that time. 

20.     In his oral evidence, Mr Meaie stated that he had been imprisoned in Ethiopia during the civil unrest there.  He said that after his release, he was unable to locate his wife and children and spent some time in Eritrea.  He said that eventually, after help from others, his wife discovered his whereabouts and sponsored him to come to Australia. 

21.     Mr Meaie said that he discovered that the wrong age had been recorded for him after his arrival in Australia.  He said that he has been trying unsuccessfully to change it.  He blamed his daughter or whoever helped her with the forms for the error.  He could not remember getting an Eritrean police clearance certificate with a birth year of 1946.  Mr Meaie had no explanation as to why his date of baptism in the most recent baptismal certificate was January 1934 yet his date of birth was December 1934 in the same document.  Mr Meaie said that neither he nor his wife had been educated.  He said that they had lost all their belongings during the various conflicts in Ethiopia.  He said that prior to coming to Australia, his main concern was finding his family and he had paid no heed to what was being written in documents. 

22.     Mr Meaie said that he was around 20 years old when the families arranged his marriage to Ms Zerea.  He said that he did not have any schooling.  He said that all his children had been baptised in the area near where they lived but they did not have documentation concerning the children’s baptisms nor their own.  Mr Meaie said that someone his wife knew had arranged the documentation on which he was now relying to prove his age.

23.     Asked why he wanted to be 12 years older than in current records, Mr Meaie said that it would make a difference to the medication he was given.  He said it was his understanding that the dosage of medication and access to injections depended on a person’s age.  He did not know what sort of condition this related to, saying he was uneducated.  He said only a doctor would be able to answer that question.  Mr Meaie denied that he was seeking to amend his age because his wife wanted to do so.  Mr Meaie produced his pension card which indicated that he is now on newstart allowance.  He denied knowing that a date of birth of 1934 would qualify him for the age pension or that an amended date of birth for his wife of 1946 would result in her qualifying for age pension. 

24.     Mr Yohannes Tegeng, who was assisting Ms Zerea and Mr Meaie, agreed to give evidence.  He is a team leader at Toyota in Altona North and is also a qualified interpreter and translator at NAATI 3 level.  Mr Tegeng was a journalist in Ethiopia. He met Mr Meaie through the Ethiopian community and had been assisting him and Ms Zerea voluntarily, including at Centrelink and Medicare.  When they unsuccessfully sought to change their dates of birth, he decided to help them with the application to the Tribunal.  He said that both Mr Meaie and Ms Zerea have suffered memory loss.  He said that they even forget during an interview with him, they gave different responses to the same question within a short period.  He said that this even applied to listing their children in chronological order.  Mr Tegeng said that he wrote down what they had told him in submissions but then they change the responses at interviews.  Mr Tegeng said that they had even forgotten that they had the hearing that morning and apologised for their late arrival which had been the consequence of their forgetfulness. 

25.     Mr Tegeng explained how baptismal documents are obtained in cases such as this.  He said that contact is made with church officials who then search to see if there are any relevant documents.  If there is nothing registered, residents in the local area where the people were baptised are asked about their knowledge of the people seeking the document.  Queries are always made of people of about the same age, who may have associated with those seeking issue of the certificates.  After investigations by the church and payment of a fee, a document is produced.  Mr Tegeng said that there was no alternative as no birth certificates were issued.  He said people like Ms Zerea and Mr Meaie had no alternative as everything they had was lost. 

26.     Mr Tegeng said that there was about an 8 years and 8 months difference in the translation of the dates on Mr Meaie’s recent baptismal certificate, rather than the usual period.  He said it was a true translation but the date of the baptism should have been the following year when Mr Meaie was a young baby.   

27.     The Tribunal acknowledges that it is a difficult task for Ms Zerea and Mr Meaie to provide corroboration of their dates of birth.  They are illiterate in their native language and in English.  They both appear to have a poor memory.  The baptismal certificates lodged in support of this application are a compilation, presumably based on the memories of community members whom Ms Zerea and Mr Meaie may not have seen for many decades.  They differ in terms of dates from earlier versions, presumably obtained in a similar fashion.  The Tribunal is not satisfied that the most recent documentation is sufficiently reliable for a decision to be made in favour of Ms Zerea and Mr Meaie, given the manner and circumstances of its creation.  The Tribunal believes that the dates of birth given when migration was arranged for each of them are more likely to be accurate than the dates in the most recent documents.  The dates provided to the authorities when Ms Zerea was still in Kenya also correlate with her recollections of her age at marriage and at the birth of her children.  They also correlate with Mr Meaie’s memory of his age at marriage. 

28.     The Tribunal is not satisfied that the Department’s records concerning the ages of Ms Zerea and Mr Meaie are incorrect.  The Tribunal therefore finds that it is not appropriate to amend the records.

DECISION

29.     The Tribunal affirms the decision under review.

I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

Signed: Dianne Eva              

Clerk

Dates of hearing:  30 March 2009
          Date of decision:  12 June 2009

Advocate for applicant:                Mr Y Tegeng

Advocate for respondent:            Mr N Rogers

Solicitor for respondent:              Australian Government Solicitor