The evidence relied upon by the applicants
139 A great deal of departmental and inter-agency correspondence was in evidence. The applicants were asked to identify the documents upon which they rely to establish their case. They identified the following, which have been detailed to the extent necessary and relevant:
(1) An FOI request submitted on 6 December 2002 by Mr Grass on behalf of Mrs Grass that referred to a year of birth of "54", which was subsequently struck out and replaced with the year "66".
(2) An email dated 14 February 2003 from Ms Amanda Walter, Manager, FOI Section, to a Mr Damian Carmichael, who appears to be another officer within the FOI Section, which referred to exchanges between the Department and Mr Grass in relation to Mrs Grass' date of birth.
(3) A letter dated 20 February 2003 from Mr Grass addressed to Ms Walter, advising that the "D.O.B. on your records may be incorrect".
(4) Two statutory declarations made by Mrs Grass' school principal, and a letter from the school principal, which were submitted by the applicants to Ms Slattery upon invitation to make representations about the proposed cancellation of Mrs Grass' approval, including:
(a) a declaration dated 28 October 2002 that Mrs Grass was a faculty member of Maugat Elementary School for the period June 1984 to March 1985, holding a temporary appointment as elementary teacher;
(b) a handwritten letter dated 18 October 2005, which appears to state that Mrs Grass completed her primary grades at Maugat Elementary School from 1971 to 1975; and
(c) a declaration dated 29 November 2006 that Mrs Grass attended primary grades at Maugat Elementary School from 1971 to 1975, which noted that all school records were destroyed by natural disasters.
(5) An extract of the visa cancellation decision dated 9 November 2006 of Mrs Grass' spouse visa, which stated (verbatim):
On 19 December 2005, the visa holder's representative provided further submission stating further attempt was made to change visa holder's date of birth on departmental records. Some other documentation where also provided; such as letters from the school allegedly attended in the past by the visa holder (folios 128-146, CLF2006/37440).
(6) A letter dated 30 June 2008 from Ms Lath (whom, it may be recalled, was an officer within the FOI Section of the Department) to Mrs Grass. Ms Lath relevantly advised:
I am pleased to inform you that I have made a decision to approve your request for amendment of your name. I have changed the Department's computer records to reflect the changes. (Copy attached).
The Department will now refer to your date of birth as 13/11/1966….
(7) Legal advice dated 18 June 2008 provided by an officer at the Australian Government Solicitor in response to a request by the FOI Section for advice on whether the Department could revisit an amendment decision made in respect of a client's records. In summary terms, the advice relevantly stated that a decision under s 50 of the FOI Act could only be revisited if it was based on a document that is proven to be fraudulent, in which case the Department might treat the decision as a nullity.
(8) A letter dated 12 August 2008 from Mr George Masri to Mr Steve Ingrim titled "Notice of proposal to record administrative deficiency". Mr Masri is identified in the letter as "Senior Assistant Ombudsman", and Mr Ingrim is identified as the Assistant Secretary, Stakeholder Engagement & Property Branch of the Department. The letter invited comment on Mr Masri's proposal to record administrative deficiency following the Commonwealth Ombudsman's investigation of a complaint from the applicants on the issue of Mrs Grass' year of birth. Mr Masri relevantly stated (verbatim):
In my view, the 2002 FOI request showed that after Ms Grass's departure from Australia in 2002 and prior to applying for a further visa in 2003, Mr and Mrs Grass had put DIAC on notice that both years of birth pertained to the same person. …
The significance of Ms Grass's year of birth is particularly evident in the MRT decision, which notes 'the issue in this case substantially relates to the Applicant's date of birth'. Further, the MRT also incorrectly noted that 'the evidence indicates that there was no attempt to correct the documents until 2003 at the time of the lodgment of the prospective spouse visa application'. The latter statement may reflect the impact that the late release of the 2002 FOI request had upon Mr and Ms Grass's ability to present their case at the MRT…
… I am of the preliminary view that the failure to appropriately consider the 2005 FOI request adversely impacted upon Mr and Ms Grass's ability to answer the NOICC and present their case to the MRT.
In addition, I am of the preliminary view that the failure of the decision maker to take account of the 2002 FOI request, which was in the Department's possession, when deciding to cancel Ms Grass's visa in March 2006 constitutes a failure to take account of a relevant consideration.
…
(9) A letter of advice dated 6 February 2009 from Mr John Carroll, a partner at Clayton Utz, to Ms Susan Lavalette, Acting Senior Legal Officer of the Department. The advice concerned a claim for compensation by Mr Grass for costs incurred as a result of the cancellation of Mrs Grass' spouse visa in 2006, and compensation for stress. Mr Carroll noted (verbatim) that:
3.1 While we consider that, when taken in isolation, there may have been a legal error in the cancellation of Mrs Grass's Spouse visa - in so far as the failure of the decision-maker to take into account Mr Grass's 2002 FOI request may amount to a failure to take account of relevant considerations - that does not give rise to a legal liability to compensate either Mr Grass or Mrs Grass.
(10) An email dated 23 July 2010 from Ms Rossiter (whom, it may be recalled, was Director of the FOI and Privacy Policy Section of the Department) to Ms Slattery (referred to above at [88]). Ms Rossiter relevantly stated:
Given the recent evidence leading to the citizenship decision, you raised again the possibility of reviewing the FOI amendment decision, and I have responded that we would review once the citizenship decision is upheld if it is agreed that there are sufficient grounds to warrant a review. However, in checking Ms Grass' documents on the system today I note that her date of birth has already been changed from 1965 to 1954, by you, on 29/4/2010.
Can you please advise on what grounds you made this amendment, given there are no reasons attached to the ICSE record and that the previous change to Ms Grass' date of birth was made by a departmental officer delegated to do so under the FOI Act?
(11) A letter dated 21 May 2009 from the Department to Mrs Grass advising of the approval of her application. The letter relevantly stated:
The final step in becoming an Australian citizen is the making of a Pledge of commitment. You will not be an Australian citizen until you have made that pledge.
Generally, citizenship ceremonies are scheduled within 6 months of approval but waiting periods vary. The Department will write to you when arrangements have been made for you to make a pledge of commitment.
(12) An email dated 4 August 2010 from Ms Rossiter to Ms Alexa Turner. The recipient, Ms Turner, is identified by her email signature as the Director, Ombudsman & Human Rights Coordination Section of the Department. The email relevantly stated (emphasis in the original):
As discussed with Andrew this afternoon, I understand that Mr and Mrs Grass have complained about DIAC's decision to overturn Mrs Grass' approval for citizenship, that DIAC did not provide Mrs Grass with sufficient information to explain the reassessment of Mrs Grass' approval for citizenship and about the length of time it took DIAC to respond to Mrs Grass during the process.
The complaint from Mr & Mrs Grass is about Mrs Grass' citizenship matter. FOI is a red herring and has no bearing on the complaint - it is purely part of the background. As an aside, FOI was not consulted in the preparation of the response to the Ombudsman's original questions:
2. Does DIAC intend to reconsider its decision of 30 June 2008 about Mrs Grass' date of birth.
Yes. In considering the cancellation of approval of Australian citizenship on character grounds, an examination will be undertaken into the 30 June 08 decision regarding Mrs Grass' date of birth.
We do not know where this response came from and it is contrary to previous legal advice that we received in that:
'the decision-maker would need to be reasonably satisfied, on the basis of probative evidence, that the s 50 decision was based on fraudulent information in order to 'revisit' the decision. The decision-maker cannot simply decide to revisit the decision merely on the basis that he or she fears that the information upon which his or her decision was based is no longer correct'.
The possibility of a review of the FOI decision was recently brought to our attention via FOI Parramatta following a query from Citizenship Parramatta. We have responded that we will await the outcome of the current citizenship process before taking any action as Mrs Grass currently has appealed to the AAT about that decision. At present the documents are alleged to be fraudulent, not proven. Indeed the department declined to prosecute. Even if the citizenship decision is upheld, it is not a clear fit with the FOI decision and may not be enough to require a review. …
(13) An email dated 9 November 2011 from Ms Rossiter to Mr Grass, which relevantly stated:
This email is to advise that I have, today, changed Mrs Grass' date of birth to reflect the FOI amendment decision by Reema Lath in 2008. This effectively reverses the change made by Megan Slattery in April 2010.
(14) An email dated 27 February 2014 from Ms Rossiter to the applicants. Ms Rossiter, apparently responding to a complaint by the applicants that the Department had used Mrs Grass' "incorrect" date of birth in correspondence to them, stated:
While citizenship has chosen to list Mrs Grass' date of birth in the header of the document, this is not the official date of birth recorded for Mrs Grass. It may be the date of birth that Citizenship claims is the correct date of birth but it is not the date of birth on ICSE which is DIBP's official system.
(15) An email exchange dated 25 February 2014 between Ms Christine Johnston and Mr Robert Day. Ms Johnston is identified in that exchange as Director, Agency Accountability, Government Information Assurance and Policy, National Archives of Australia. In the first email, Ms Johnston noted that the National Archives of Australia had received a complaint from a member of the public about a possible breach of the Archives Act. She then sought information about the records amendment process used to alter Mrs Grass' record, having regard to s 4 of that Act. Mr Day's response of the same day relevantly stated that the case notes in the ICSE system from the citizenship application provided a clear context to the change to Mrs Grass' details in April 2010. He noted, however, the following (verbatim):
As we discussed today, this particular case is complicated by the fact Mrs Grass's ICSE records had previously been amended in accordance with an FOI decision. The legal test around identity in the Australian Citizenship Act 2007 is different to that in the FOI Act and, as consequence, it is sometimes possible for decision makers under the two Acts to reach different conclusions. It is our understanding that even when this occurs, the preferable position in terms of the FOI Act is for the ICSE record to reflect the FOI decision and this has been clarified with our citizenship decision makers since the particular amendment to Mrs Grass's record. This is also the reason that the April 2010 change was ultimately reversed.
…
For the sake of completeness, I should note that the department is currently looking at options to resolve the tension between the FOI and Citizenship decisions in Mrs Grass's case. …
(16) A letter dated 14 November 2016 from Mr Hamish Hansford, Acting First Assistant Secretary of the Immigration and Citizenship Policy Section of the Department, to Mrs Grass, enclosing an "Identity Assessment Report" on Mrs Grass, which appeared to be in response to her request for a "'whole of agency' response in relation to the Department's records" as to her date of birth. The letter noted that:
… Based on the evidence provided and subsequent Identity Assessment conducted by the Department, it is open to the Department to be satisfied that your correct date of birth is 13 November 1954, and to be satisfied that the Departmental records stating that your date of birth is 13 November 1996 are inaccurate.
(17) Iterations of the Department's Australian Citizenship Instructions, which provided Department officials with "guidance on policy in relation to the interpretation of, and the exercise of powers under, the [Citizenship] Act and the Regulations".