Miskovic and Department of Immigration and Citizenship [2009] AATA 76; (2009) 107 ALD 241 (6 February 2009)

Last Updated: 4 November 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 76

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. 2008/2287

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Branislav Miskovic

Applicant

And

Department of Immigration and Citizenship

Respondent

DECISION

Tribunal

Mr G L McDonald, Deputy President

Date 6 February 2009

Place Melbourne

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 s 50(1) of the Freedom of Information Act 1982 to record the applicant’s date of birth as “12 or 13 June 1929.”

..............................................
Deputy President
CATCHWORDS – FREEDOM OF INFORMATION ACT – whether applicant’s birth date should be amended – whether there was sufficient evidence of the applicant’s birth date – decision under review set aside

Administrative Appeals Tribunal Act 1975 s 37
Freedom of Information Act 1982 s 50, Div V

Re Cox and Department of Defence (1990) 20 ALD 499

REASONS FOR DECISION

6 February 2009

Mr G L McDonald, Deputy President

1. The applicant is applying to the Tribunal for review of a decision declining to amend his date of birth, currently accepted as being 14 June 1932, to 12 or 13 June 1929. The applicant successfully applied in 2000 to have the record amended in order to change his then recorded date of birth from 12/13 June 1929 to the current registered date. As is apparent he now seeks in the current application to reverse that amendment. The application is made pursuant to power found in Division V of the Freedom of Information Act 1982.
2. At the hearing Mr Miskovic was self-represented and gave sworn evidence. The Department was represented by Ms McNeil. The Tribunal had before it the documents filed for purposes of satisfying s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) and a bundle of documents filed by the respondent but provided by the applicant.[1]
3. The difficulty for the applicant in establishing his birth date began when he joined the French Foreign Legion (the Legion) in about 1950. He said, and the Tribunal accepts, that he was required to give over all his identification papers to the Legion which then photographed him and assigned him a number. On his desertion he could not retrieve the identification papers. Shortly after deserting the Legion he arrived in Australia, apparently as a refugee in 1953 and became a citizen on 26 May 1967.[2] His certificate of citizenship discloses his birth place as Sabac, Yugoslavia and his date of birth as 12 June 1929.
4. Evidence of the applicant’s date of birth comes from an extract of birth issued by the municipality of Sabac on 15 September 1953.[3] It discloses his date of birth to be the afternoon of “31 May (13 June) 1929” and the certificate bears the registration number 155 (apparently being a reference to the number of births in the area in that year). A second extract, issued by the then Republic of Yugoslavia on 17 February 2000 records his birth date as being 14 June 1932.[4] It bears the registration number of 531. To confuse things further a third birth certificate issued by the Republic of Serbia on 21 January 2008, and also bearing the registration number 155 records his birth date as being 13 June 1929 at 00.00 (that is, midnight).[5] Document examiners from the department examined the first and third mentioned birth certificates and, while unable to authenticate the documents, because no other specimens were available, could not find any evidence of tampering. No examination was carried out in respect of the second mentioned birth certificate.
5. To add to the intrigue there are two copies of the applicant’s baptism certificates.[6] One copy, which has been altered in respect of the recorded date in June, records his birth date as May 31 and 12 altered to 13 or 13 altered to 12 of June of 1932. The second copy has the 1932 date altered to 1929. Otherwise the documents are the same. It is not known when the original was altered, or who carried out the alteration.
6. A notation on the first mentioned document states “amended by Deacon D. Jerosimovic”. This must refer to the alteration of the 13 to 12 or 12 to 13 June (which ever it may be, it is difficult to determine from looking at the document) and not to the subsequently made alteration to the year from 1929 to 1932. The Tribunal also notes that the baptism certificate also nominates 155 as being the birth registration number, for example, the number recorded on two of the civil issued birth certificates.
7. The applicant married, he says for the sixth time, on 3 October 1964. He told the Tribunal that the marriage ceremony was conducted in Belgrave in the presence of the bride and witnesses (including the applicant’s brother) but that he participated by telephone from Australia. The marriage certificate records a date of birth for him of 13 June 1929.[7] Other documents, some dating back as far as 1960[8] and some more recently (for example, copies of his Australian drivers licences[9] and a passport issued by the Australian embassy in Belgrade in 1981[10]) record 12 June 1929 as being his birth date. The exception is for the latest driver’s licence which was issued after the records were changed in 2000 to record his date of birth as 14 June 1932.[11] In some documents the source as to the applicant’s date of birth may have been the applicant saying so, in others (for example, the passport) there could be expected to be authentic identification necessary.
8. On 14 June 2000 the applicant made a statutory declaration in which he declared how he exited the Legion and came to Australia on a cargo ship.[12] In the declaration the applicant writes “Yet my brother wrote that mas (sic) a two babies for christening one 129 (sic) and 1932, but prist (sic) was a intoxicated and mix a birth when he was wrote birth certificate.” The reference to the birth certificate is presumably not a reference to the baptism certificate issued by the local church in Sabac but to the extract which is certified on 7 March 2000 and which formed the basis of the applicant’s application made in 2000.[13] The extract bears no apparent relationship to the baptism document as it contains no mention of a priest or the name of a church. The Tribunal concludes the reference to the intoxicated priest is, at least in the context of Exhibit A1, document 8, mistaken.
9. The applicant told the Tribunal that he visited his mother in 1983 in Serbia shortly before her death. On that occasion he said that she informed him that he had been born in Paris, France and had lived there for the first three years of his life. This was the first time he had learnt this. He claimed that his mother was French and his father was Serbian and that his mother’s Christian name had been changed from her original French name to a Serbian name. There is some confirmatory evidence for this as the applicant claimed that his maternal grandmother had recently died and that he stood to inherit part of her estate which was located in Paris. Not any of the documentation issued from Serbia/Yugoslavia supports what he claims his mother told him. However, as noted, the Serbian/Yugoslavian birth and baptism documentation is, at best, inconsistent and those documents before the Tribunal could not be relied on to reach any firm conclusion concerning the applicant’s birth date. No documentation has been sought from France which would or may confirm or otherwise that the applicant was born in France.
10. The applicant also told the Tribunal that his mother (and at one stage he said his parents) were superstitious and did not want his birth date recorded as being the 13th day of the month. This may account for the variations in the description between 12 and 13 June as being his birth date.
11. The applicant told the Tribunal that he has suffered a number of breakdowns and strokes and that he experienced difficulties with his memory. He denied, and the Tribunal accepts his denial, that his memory lapses were deliberately put forward in order to distance himself from the details of the 2000 application he made for amendment of the record of his birth date.
12. If the evidence rested on what has been set out above, the Tribunal would be obliged to affirm the decision under review. However, there is further, and in the Tribunal’s view telling, evidence and that is contained in the applicant’s school certificates.[14] The applicant told the Tribunal that he attended school for a period of 12 years – primary school for four years and secondary school for eight years. The school records seem to record him as undertaking five years of high school.[15] This would appear to be consistent with what almost internationally was and has continued to be the length of a child’s high school education. His last school report is dated 28 June 1947.[16] All of his school reports record his date of birth as being 29 June 1929 except for the first which records 13 June 1929.[17] (The footnote of the translation of the second report[18] mistakenly records 13 June as the applicant’s birth date but it is clear from the untranslated copy that the date is in fact 12 June 1929). Had he been born in 1932 he would have commenced school at age three and left at age 15. The Tribunal is satisfied that it would be highly unlikely that a school would mistake the age of a three year old and classify him as a five year old. Further, while for reasons expressed above the applicant’s memory is not good, he seemed quite definite that he left school when he was 17 or 18 years of age.
13. The Tribunal is conscious of the following matters to be considered in exercising a discretion to amend records as set out by Deputy President Todd in Re Cox and Department of Defence:

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.[19]

14. The records here are an objective recording of a fact so should be as accurate as possible. There is no extraneous or detrimental purpose behind the applicant’s application and no issue of malice in the creation of the record exists. Inconvenience will clearly be caused by the need to return the record to the state it was in before the applicant had them amended in 2000. While not listed in Cox as a consideration, inconvenience 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.
15. For the above reasons 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 s 50(1) of the Freedom of Information Act 1982 to record the applicant’s date of birth as “12 or 13 June 1929.”
    

I certify that the fifteen preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed: ...............................................................

Grace Horzitski Associate

Date of Hearing 28 January 2009

Date of Decision 6 February 2009

Solicitor for the Applicant Self-represented

Solicitor for the Respondent Ms B McNeil, Clayton Utz Lawyers

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[1] This bundle of documents forms Exhibit A1.
[2] T documents, T12, page 69.
[3] T documents, T12, page 72.
[4] T documents, T8, page 55.
[5] T documents, T12, page 68.
[6] T documents, T4, page 39 and T12, page 72.
[7] Exhibit A1, document 5.
[8] Exhibit A1, documents 3 and 4 being an authorisation to reside in France and an attestation of him being refugee from Yugoslavia.
[9] Exhibit R1.
[10] Exhibit A1, document 7.
[11] T documents, T11, page 74.
[12] T documents, T12, page 75.
[13] Exhibit A1, document 8.
[14] Exhibit A1, documents 17-22 inclusive and T documents, T12, page 71.
[15] See Exhibit A1, document 22.
[16] Exhibit A1, document 22.
[17] Exhibit A1, document 17.
[18] Exhibit A1, document 18.
[19] Re Cox and Department of Defence (1990) 20 ALD 499 at 501.