What happens when an agency’s record of your identity conflicts with who you actually are? This is the question we grappled with in an Immigration New Zealand (INZ) case that we recently referred to the Director of Human Rights Proceedings.
Update: INZ and the Director of Human Rights Proceedings have since settled this case on a confidential basis that will avoid the need to take the case to the Human Rights Review Tribunal. INZ has acknowledged it breached principle 7 of the Privacy Act (which deals with the requirement that agencies correct personal information upon request). Read the media release here.
Estimating a birth date
Here’s what happened: in 2011, a young Ethiopian man immigrated to New Zealand, sponsored by his aunt. He did not know how old he was, as his parents had died when he was very young and there was no record of his birth – birth registration is not compulsory in Ethiopia. In order to obtain a birth certificate to support his refugee application, his aunt consulted with locals and estimated his birthday to be in early 2000. Immigration NZ used this birth date on his refugee visa.
When he arrived, a paediatrician commented that he looked big for an 11 year old boy. These comments were echoed the next year by his teacher and another doctor, so he had a bone density scan and dental examination to double-check his birth date. Both indicated he was at least 16 years old at the time and could be as old as 18.
Based on this information, the young man asked Immigration NZ to correct his birth date on two occasions: once in 2013 based on the medical and dental examinations, and once in 2014 after getting an amended birth certificate from Ethiopia with a 1996 birth date. On both occasions, the agency said no.
What’s in a date?
When he made his privacy complaint late last year, the young man was physically, mentally and emotionally in late teens, but his visa said he was 14. The discrepancy between the young man’s actual age and the age on his visa prevented him:
These were entitlements that he should have received as a New Zealand resident. He was prevented from receiving them because Immigration NZ’s version of his identity did not match his actual identity.
Correcting vs annotating
Immigration NZ offered to add a note, in line with principle 7 of the Privacy Act, indicating that he had requested a correction, but that the change had not been made. Immigration NZ declined to go as far as to correct his birth date because the medical records, dental records and amended birth certificate could not verify that the young man was born on a specific date. All that evidence did was show that the date they were using was wrong.
We do not agree with this view. While the tests do not prove that the date on his new birth certificate is correct, they do prove that it is significantly more accurate than the date on his current visa. In a perfect world, the correct date would be available and verifiable, but in this imperfect situation, we believe that Immigration NZ should adopt the position supported by evidence rather than stick to a position based purely on supposition.
Case law gives us a steer
Case law provides more guidance by saying that while agencies can choose to correct or annotate incorrect information, they need to consider the potential ramifications of their actions when deciding which path to take.
As a hypothetical example, consider a medical file incorrectly indicating that someone is not allergic to penicillin. Failure to correct this information could result in the person’s death, so a note indicating that they had asked to correct the information would be insufficient.
This case is in a similar category to the penicillin example. The incorrect birth date caused significant harm on an ongoing basis by cutting off the young man’s access to services that he should have been entitled to. Correcting his birth date was the only way to stop this harm, so an annotation was not sufficient in this instance.
Referring it on
We disagreed with Immigration NZ’s view that a note on the complainant’s file was sufficient and we referred the case to the Director of Human Rights Proceedings to consider bringing before the Human Rights Review Tribunal. We’ll keep you posted on the outcome.
A few more resources
For more information, you can look at: