Dawar and Minister for Immigration and Citizenship [2011] AATA 76 (10 February 2011)

Last Updated: 10 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 76

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/1752

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GHUFRANULLAH DAWAR

Applicant

And

MINSITER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal

Mr A Sweidan, Senior Member

Date 10 February 2011

Place Perth

Decision

The Tribunal affirms the decision under review.

..(sgd) Mr A Sweidan....................
Senior Member

CATCHWORDS

Freedom of Information - application to amend records in relation to date of birth - various different dates previously supplied by applicant - application refused - decision under review affirmed

LEGISLATION

Freedom of Information Act 1982 s.48; s.50

CASES

Dawar v Minister for Immigration and Citizenship [2008] AATA 918

Re Mann and Department of Health (ACT) (1991) 37 ALD 266

Re Boyd v Health Insurance Commission [1997] AATA 11870

Bashari & Ors v Minister for Immigration and Multicultural Affairs [2006] AATA 839

REASONS FOR DECISION

10 February 2011	Mr A Sweidan, Senior Member
BACKGROUND

1. This is an application by Ghufranullah Dawar ("the applicant") seeking review of a decision made by a delegate of the respondent on 9 March 2010 to refuse to amend records held by the Department of Immigration and Citizenship ("the Department") in relation to his date of birth.

FACTS

2. The applicant first arrived in Australia on 25 May 1999 as an unauthorised arrival by boat. Upon arrival he stated that his name was Ghufranullah Khan Gurbaz and his date of birth was 13 December 1350 (in the Islamic calendar) which equates to 3 March 1972.
3. In a subsequent interview with the Department on 29 May 1999 the applicant claimed that he had been born in 1971. In a later statement dated 23 June 1999 prepared with the assistance of Macpherson & Kelly Lawyers the applicant claimed to be 27 years old.
4. The following documentation is on the Department's files in relation to the applicant following his protection visa application:

4.1 a graduation certificate from the Department of Secondary Education in Afghanistan which indicates that he completed secondary education in 1989. It also indicated that he was born in 1971;

4.2 a document for his university results from the years 1991/1992; and

4.3 a birth certificate which states that he was 16 in 1366 which equates to either 1971 or 1972.

5. On 24 October 2000 the applicant sought to change his date of birth to 3 March 1975 ("the 1st FOI request") making the following statement:

My original date of birth according to my certificate is 03/03/1975. I use 2 dates of birth at Australia without day and month that are (19)71 and (19)72. My date of birth on Centrelink record is 71 while immigration record is (19)72. I would like to accurate my date of birth according to my country birth certificate which is attached to my application. I have stuck with severe problem.
I would like to use my date of birth 3/3/1975 Because I use two dates of birth one is 71 and another 72 without day or month.

6. On 25 January 2001 the applicant filed another request to change his date of birth to 3 March 1975. The applicant provided a statutory declaration together with a copy of a birth certificate from the Afghan Obstetrics and Gynaecology Hospital recording his date of birth as 3 March 1975.
7. On 20 August 2001 the applicant submitted a new FOI request stating that his date of birth was 4 March 1976.
8. The applicant provided an original birth certificate and translation of a birth certificate from Zisionton Hospital in Afghanistan recording his date of birth as 4 March 1976.
9. On 29 October 2001 the applicant withdrew the 1st FOI request claiming incorrect translation. The applicant claimed that when the English translation of the birth certificate was submitted it had been translated from Persian into English incorrectly. He stated:

The date of birth which is 4/3/1976 will be my real and permanent date of birth and there will be no further amendments to this date of birth in the future.

10. On 20 December 2001 the applicant withdrew his request to change his date of birth to 4 March 1976.
11. On 21 June 2007 the applicant sought to register his purported son as an Australian citizen by descent. The applicant submitted as evidence a copy of a birth certificate purportedly issued by the Malali Zesionton Hospital in Afghanistan in which his own date of birth was recorded as 3 March 1972. His application was refused. That decision was affirmed by the Tribunal in Dawar v Minister for Immigration and Citizenship [2008] AATA 918.
12. In 2009 the applicant made an application to register a different son as an Australian citizen by descent. He provided a birth certificate from the Agency Head Quarter Hospital Miranshah in Pakistan which identified the applicant's date of birth as 3 March 1972.
13. On 12 June 2009 the applicant made a further application to change his date of birth. In this application the applicant claims he was born on 15 April 1974.
14. On 22 June 2009 the Department wrote to the applicant requesting a certified copy of identification which listed the applicant's date of birth as 15 April 1974.
15. On 29 July 2009 the application was refused on the basis that the applicant had not submitted any evidence to support the requested amendment to his date of birth.
16. On 20 August 2009 the applicant sought an internal review of the decision and provided a statement which claimed:

16.1 when he arrived in Australia he did not know his correct date of birth and gave a rough date of birth as 1972;

16.2 during the Taliban's tenure in Afghanistan he attempted to obtain a birth certificate but they deliberately sent him a certificate with an incorrect date of birth as 1976; and

16.3 the major issue he has with the date of birth is that he cannot use his Australian credentials to work in Afghanistan and he cannot use his Afghan credentials for his study in Australia.

17. On 9 March 2010 a delegate refused the internal review application. It is this decision which the applicant seeks to be reviewed in these proceedings.

EVIDENCE

18. On 19 July 2010, the applicant filed an affidavit in these proceedings which, inter alia, annexes a copy of a further document the applicant seeks to rely on and a translation of that document. The translation refers to that document as an "Extract translation of National ID Certificate" which records the applicant's date of birth as "15/4/1975" and was purportedly issued by the Afghanistan Minister of Interior Affairs, Department of Registration of Population on 5 April 2005. The applicant submitted the original version of this document to the Tribunal and it is Exhibit A1.
19. On 15 July 2010 and 3 August 2010 the respondent wrote to the applicant requesting that the original document be provided to allow the respondent to analyse the document. The document was provided on 6 August 2010 and was submitted to the Department's Document Inspection Unit for analysis.
20. The respondent has filed a Forensic Document Examination Report (the Report) by Julie Lyn Kershaw, which is Exhibit R1 before the Tribunal. The Report concludes that Exhibit A1 is a counterfeit for the reasons set out in the report.
21. The respondent has also filed an Affidavit by Richard John Featherston another Forensic Document Examiner which is Exhibit R2 before the Tribunal. The Tribunal has made an order under s35(2) (b)& (c) of the Administrative Appeals Act 1975 prohibiting and restricting the publication of the evidence contained or referred to in annexure “RFJ1” to that affidavit. Under the terms of that order the applicant was permitted to view that annexure.
22. Shortly before the resumed hearing the applicant filed a further document (Exhibit A8 with translation Exhibit A9) purporting to be an International Driver’s Licence issued in Afghanistan on 5 September 1998 and showing his date of birth as “15/4/1974”.
23. The applicant filed a number of Affidavits and also gave oral evidence, seeking to explain the discrepancies in the various documents provided by him in relation to his date of birth. Amongst other things he claimed that he was forced by the previous Taliban regime in Afghanistan to accept documents which contained incorrect information regarding his date of birth. He also claimed that there were errors in the translation of the documents.
24. The applicant’s attempted explanations are not credible and the Tribunal does not accept them.
25. The applicant also alleged that the respondent’s legal representatives and witnesses had lied and given false evidence and had in effect conspired to defeat his application. The Tribunal finds that no basis has been shown for these allegations which the Tribunal rejects.

ISSUES

26. The issues before the Tribunal in relation to this decision are:

26.1 Whether the Tribunal is satisfied that information contained in the respondent's records is incomplete, incorrect, out-of-date or misleading; and

26.2 If so:

26.2.1 whether information can be deleted from the respondent's records by way of an amendment pursuant to sections 48 and 50 of the Freedom of Information Act 1982 ("the FOI Act"); or

26.2.2 whether information can be struck-out from the respondent's records by way of an amendment pursuant to sections 48 and 50 of the FOI Act; or

26.2.3 whether the respondent's records should be annotated with an appropriate statement or note pursuant to section 48 of the FOI Act.

LEGISLATION, GUIDE LINES AND CASE LAW

27. The Freedom of Information Act 1982 "the FOI Act" provides that a person can request that amendments be made to an agency's records where the person contends that their personal information is contained in the record and that information is incomplete, incorrect, out-of-date or misleading (subsection 48(1)).
28. Section 49 sets out the requirements for an application to amend personal information. In summary, the application should specify the document/s containing the information, specify the information in the document that is claimed to be incomplete, incorrect, out of date or misleading, and specify the applicant's reasons for so claiming.
29. Subsection 50(2) of the FOI Act provides that, where the agency is satisfied that the personal information in the record is incomplete, incorrect, out-of-date or misleading, the agency may amend the record by altering or adding to the document.
30. Subsection 50(3) provides that the agency "must, when making an amendment under [subsection 50](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". It is clear from this subsection that the FOI Act does not envisage the deletion of material from an agency's records.
31. The FOI Guidelines issued by the Department of Prime Minister and Cabinet also emphasises the importance of retaining the original text of an amended record, The Guidelines note that the information being amended still has value as an historical record, and therefore needs to be retained where possible. The Guidelines urge that, where practicable, an agency should not remove or destroy the record which existed before making an amendment, as this would prejudice the integrity of the record's status as an account of the information originally supplied.
32. Arguably, the applicant bears the onus of raising an arguable case that the information in question is incomplete, incorrect, out-of-date or misleading. In Re Mann and Department of Health (ACT) (1991) 37 ALD 266 President Curtis stated:

“It is not sufficient for an applicant merely to assert that a document is incorrect or out of date or misleading. There is no onus on an agency to rebut a mere assertion. It is for the applicant to get a case off the ground by some showing as to the manner in which the document concerned is incomplete, incorrect, out of date or misleading and to put some material before the agency or, on review, before the tribunal to establish the point. Unless the applicant produces some material having probative value which on the face of it, would show some relevant defect in the document, there is no case for the agency to meet.”

33. However, whilst this argument has found support in Re Boyd v Health Insurance Commission [1997] AATA 11870, per Deputy President Hotop and Re Dunn and Secretary, Department of Family and Community Services, it was rejected by Deputy President Forgie in Bashari & Ors v Minister for Immigration and Multicultural Affairs [2006] AATA 839. The Tribunal does not find it necessary to determine this issue.

TRIBUNAL’S FINDINGS

34. The Tribunal notes that the applicant has not expressly identified which documents he seeks to be amended in accordance with s49. That section cannot be complied with by an applicant merely requesting that "records" of his date of birth be amended. The legislation clearly anticipates that an applicant must identify the actual document/s. However, the Tribunal will assume that the applicant seeks to amend all records held by the Department.
35. The majority of documents which the applicant uses for identity purposes are not capable of amendment by the respondent. That is, the respondent and therefore the Tribunal does not have the power to amend those documents.
36. The Tribunal notes:

36.1 the applicant has previously provided 4 different dates of birth to the Department: 3 March 1972; 3 March 1975, 4 March 1976 and 15 April 1974;

36.2 In further documents provided to this Tribunal his date of birth is stated as 15 April 1975.

36.3 prior to his application the applicant has relied on the 3 March 1972 date of birth at all relevant times in Australia and on at least two occasions in Afghanistan and Pakistan;

36.4 the official school documentation provided in support of his protection visa application does not accord with his claimed date of birth;

36.5 It is not possible for the Tribunal to be satisfied what the applicant’s correct date of birth is in fact.

DECISION

37. The decision under review is affirmed.
    

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed: ..(sgd) T Freeman................

Associate

Date/s of Hearing 4 October 2010, 12 November 2010 and 31 January 2011

Date of Decision 10 February 2011

Representative for the Applicant Self represented

Representative for the Respondent Mr A Gerrard
Australian Government Solicitor