18 Aug 2015, 09:00

In 2011, the complainant moved to New Zealand from Ethiopia. He had been orphaned at a very young age and came to New Zealand as a refugee sponsored by his aunt.

Birth registration was not compulsory in Ethiopia when he was born, so there were no records of his date of birth. His aunt consulted with locals and estimated that he was born in early 2000. She used this date to apply for an Ethiopian passport and birth certificate on his behalf. She then used these documents to support his refugee application.

During the immigration process, an INZ appointed paediatrician advised INZ that the complainant looked older than his date of birth suggested. INZ did not investigate this discrepancy, and documented his birth date as early 2000 on both his file and his refugee visa.

Individuals in New Zealand on visas need to produce those visas with some frequency. The visa and the information on it (such as the individual’s birthdate) are used to determine whether a person can access a variety of services.

In 2012, the complainant (thought to be 12) underwent a bone density scan to clarify his age. In 2013 he underwent a dental examination for the same purpose. Both indicated that he was at least three years older than his recorded date of birth – possibly as old as 18 at the time.

In 2013, he asked INZ to change his birth year to 1996 based on this information. INZ refused.

The incorrect birth date restricted the man from accessing a number of entitlements he should have been eligible for – such as a driver’s licence, financial assistance from StudyLink and Work and Income New Zealand and the adult minimum wage. Officially he was 13 but physically, mentally and emotionally he was at least 16.

In 2014, the complainant obtained an amended birth certificate from Ethiopia and presented it to INZ as evidence of his earlier birth date. INZ did not accept this amended birth certificate and would not change his birth date on file.

Principle 7

Principle 7(2) of the Privacy Act allows individuals to ask an agency to correct any incorrect information the agency holds about them.

The Act does not oblige agencies to correct information. Agencies can use discretion to correct the information or attach a note indicating that the individual has requested a correction, but that it has not been made.

In this case, INZ offered to add a ‘correction requested but not granted’ note to the complainant’s file.

The Privacy Commissioner’s view was that this approach was not sufficient in this case. The incorrect birth date caused harm on an ongoing basis, and would continue to do so unless it was amended. Attaching a note would add information about the dispute, but it would not actually address the underlying issue.

Relevant judgments

Three judgments from the Human Rights Review Tribunal (HRRT) provide guidance about when agencies need to correct information they hold: Jones v Waitemata District Health Board; Henderson v Commissioner of Inland Revenue; and Plumtree v Attorney General.

In Jones, the HRRT advised that agencies do not need to amend incorrect information if they have reasonable grounds to believe it is correct.

The Commissioner formed the view that INZ did not have reasonable grounds to believe the birth date on file was correct because it was presented with independent, verifiable evidence indicating otherwise.

In Henderson, the HRRT advised that agencies do not always have a choice about whether they correct information or not. The Tribunal recognised that in some cases, the kind of information, the likely use of the information and the extent of the inaccuracy would mandate a correction rather than simply a statement indicating that a correction had been sought but not made.

A birth date is a cornerstone of someone’s identity and it was used almost every time the complainant tried to access services. The inaccuracy was damaging because in this case it represented the different legal entitlements of an adolescent and a young adult.

In Plumtree, the HRRT advised agencies to consider whether anything turns on the accuracy of their records when deciding whether to correct information or not.

In this case, critical services the complainant tried to access relied on the accuracy of INZ’s records. He was unable to access those services because INZ’s records were inaccurate.

To summarise: the Commissioner formed the view that INZ did not have reasonable grounds to believe the birth date was correct. The information was extensively used and its inaccuracy had wide-reaching negative ramifications. Based on the decisions set in Jones, Henderson and Plumtree, we believe a ‘correction sought but not made’ note on the complainant’s file was not sufficient in this instance.

Principle 8

Principle 8 requires an agency to check that personal information it holds is accurate and not misleading. INZ breached this principle by recording the complainant’s birth date without checking its accuracy, even though there was a medical opinion alerting INZ of the discrepancy between the complainant’s recorded age and his appearance.

Failure to reach agreement and referral to Director of Human Rights Proceedings

INZ refused to change the birth date on record, and the complainant was unwilling to accept a note on his file as a compromise.

When the two parties in a case cannot come to an agreement, we have two options: close the case, or refer it to the Director of Human Rights Proceedings, who may take the case to the Human Rights Review Tribunal. In this case, we believe the complainant’s case had merit and there was a need for a legal precedent to help guide similar cases in the future.

The Commissioner therefore referred the matter to the Director of Human Rights Proceedings.

Naming policy

A significant number of agencies – INZ included – have built robust systems and procedures to safely manage the personal information they hold. This case raises questions about how agencies respond to individuals’ specific circumstances in the context of those systems.

It is impossible to adequately summarise the facts of this case while also anonymising INZ. We are therefore exercising our naming policy in this instance in order to adequately describe the case and the issues it raises.

August 2015 

Information not corrected ─ correction sought but not made ─ Immigration New Zealand ─ Director of Human Rights Proceedings ─ naming policy ─ Privacy Act 1993; principles 7 and 8