1830874 (Refugee)

[2019] AATA 5841

1830874 (Refugee) [2019] AATA 5841 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1830874

MEMBER:Alison Murphy

DATE:26 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Safe Haven Enterprise Visa (Class XE) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 790 visa:

·Regulation 2.03AA(2)

Statement made on 26 June 2019 at 9:14am

CATCHWORDS

REFUGEE – protection visa – Afghanistan – statement by appropriate authority – whether or not person has a criminal history – not declared residence in Pakistan – does not possess documents to obtain police clearance – provide an overseas police clearance – has not provided a statement from appropriate authority – decision under review remitted    

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 790.226(a), r 2.03AA(1), Public Interest Criterion (PIC) 4001, 4002

CASES

El Jejieh v MHA (No.2) [2019] FCCA 840
MZAFZ v MIBP [2016] FCA 1081

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Safe Haven Enterprise Visa (Class XE) visa (SHEV) under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a [age] year old male from Wardak province, Afghanistan.  He is of Hazara ethnicity and Shia religion. He arrived in Australia [in] August 2016 without travel documents and was detained at the airport. He has remained in detention since that time.

3. The applicant initially lodged an application for a temporary protection visa. He later withdrew that application and applied for the SHEV on 30 December 2016. He was refused the visa on the basis that the delegate of the Minister considered he was not a person to whom Australia owed protection.

4. On 12 October 2017 this Tribunal (differently constituted) affirmed that decision. On 15 January 2018 the Tribunal’s decision was quashed and the matter remitted back to the Tribunal for reconsideration.

5. On 4 April 2018 this Tribunal (differently constituted) set aside the delegate’s decision to refuse the applicant a protection visa, finding the applicant has a well-founded fear of persecution in Afghanistan for reasons of his Shia religion and Hazara ethnicity.

6. On 15 October 2018 a different delegate decided to refuse the visa on the basis that the applicant had not provided a police clearance certificate from Pakistan and therefore he did not meet r.2.03AA(1).

7. The applicant appeared before the Tribunal to give evidence and present arguments in support of his application on 12 June 2019. The Tribunal was assisted by the services of an interpreter in the Hazaragi and English languages.

   THE RELEVANT LAW

8. The criteria for a Safe Haven Enterprise Visa (Class XE) visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

9. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: r.2.03AA(1). In this case, cl.790.226(a) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in r.2.03AA(2).

10. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in r.2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

11. The delegate refused to grant the visa on 15 October 2018 on the basis that the applicant did not meet r.2.03AA because he has not provided a police certificate or other statement from an appropriate authority in Pakistan.

    ISSUE FOR DETERMINATION

12. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    THE SHEV APPLICATION

14. The applicant has at all times claimed to be a citizen of Afghanistan. During the visa application process he provided a copy of his Afghan taskera which stated he was born in [a district] in Wardak province. He also provided a driver’s license issued in Wardak [in] May 2015. 

15. In his Form 790C, the applicant gave details of his family members in Afghanistan. He also stated in that form that he had resided in Kabul at various addresses from 1980 until he departed Afghanistan for Australia in July 2016. The only stated exceptions to this were a one month [trip] in 1995 and two one month trips he made to [another country] in 2013 and 2015. Relevantly the applicant did not disclose any periods of residence in Pakistan in his visa application.

16. At some point after the second Tribunal’s decision on 4 April 2018, the Department became aware of new information about the applicant’s identity. Data-matching led the Department to believe that the applicant was named as a dependent applicant in an application for a global humanitarian visa refused in 2010 in which his brother [Mr A] was the proposer. A Facial Image Comparison Report dated [May] 2018 matched an image of the applicant to an image of a person with the same name but a different date of birth who was named as a dependent applicant in that visa application. That visa application indicated that the dependent applicant with the same name had been resident in Pakistan since [July] 2007.

17. That information was not disclosed to the applicant. By letter dated 21 June 2018, the Department requested that the visa applicant provided an overseas police clearance certificate from Pakistan. That letter did not give any reason or explanation as to why the applicant was being asked to provide that certificate.

18. The applicant was not represented at the time. In an email dated 28 June 2018, he responded to the Department saying he had never lived in Pakistan so he was not able to provide any police clearance from that country.

19. On 15 October 2018 the delegate made a decision to refuse the applicant a protection visa. In the decision record she stated that information before the Department indicated the applicant had provided inconsistent information regarding his travel and address history, noting he had not declared residence in Pakistan at any time. She recorded that departmental records indicated that prior to his arrival in Australia, the applicant was a dependent applicant on an application for a global special humanitarian visa in which a person identified as the applicant’s brother [Mr A] was the proposer. In that application, the applicant’s date of birth was stated to be [DOB 1] and his place of residence since [July 2007] was Quetta, Pakistan. The delegate noted the global humanitarian visa application was refused on 2 December 2010. The delegate concluded that as the applicant had been asked to provide a police clearance or statement from an appropriate authority in Pakistan and had not done so, he did not meet the requirements of r.2.03AA(1) and therefore did not meet the requirements of cl.790.226(a).

    THE REVIEW APPLICATION AND PROCEDURAL ISSUES

20. An application for review of the delegate’s decision was lodged with this Tribunal on 22 October 2018.

21. The Tribunal was provided with an electronic copy of the departmental file relating to the application for the protection visa ([file deleted]). As is apparent from the delegate’s decision, the Department’s data-matching has caused it to form the view that the applicant is the brother of [Mr A]. This is on the basis of information previously provided by [Mr A] to the Department in his visa applications.

22. For this reason the Tribunal requested the Department provide files relating to visa applications made by [Mr A] and was provided with the departmental files relating to his protection visa application ([file deleted]), offshore humanitarian visa application in respect of his wife and son ([file deleted]), offshore partner visa application in respect of his wife and son ([file deleted]) and ([file deleted]) and application for citizenship ([file deleted]).

23. The Tribunal also has before it [file deleted], relating to an offshore humanitarian visa lodged by [Ms B] (the review applicant’s niece) and [file deleted] relating to the protection visa application of [Mr C] (the review applicant’s brother).

24. I note that the third party files referred to above contain non-disclosure certificates issued under s.438 of the Act dated 18 February 2019, in each case stating that the documents the subject of that certificate contain information of a personal nature that was given to the Department in confidence and may not already be known to the review applicant.

25. Section 438 applies to decisions under` Part 7 of the Act and provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.  However the operation of s.438 is dependent upon the existence of a valid certificate by the Minister or his delegate.

26. I accept the s.438 certificates dated 18 February 2019 relating to each of the third party visa application files to be valid and I have not provided the applicant with copies of any documents contained on those files.

27. However the applicant’s own protection visa application file ([file deleted]) included documents subject to a non-disclosure certificate pursuant to s.438 of the Act dated 18 July 2017. For the following reasons, I find that certificate to be invalid.

28. Firstly, the certificate refers to folio numbers 185 – 471 on the Departmental file. However the Tribunal has been provided with an electronic copy of the file which comprises a long list of electronic documents in no particular order, interspersed with electronic documents from other files. The electronic documents do not contain folio numbers and I am unable to match them to folios 185 – 471 of the Department’s hard copy file. Written requests to the Department to resolve this issue on 11 December 2018, 7 February 2019 and 4 April 2019 did not receive a substantive response. Consequently the Tribunal has been unable to identify the documents subject to the certificate, although I assume them to include documents taken from the files relating to the applicant’s family members.

29. Secondly, the certificate does not clearly identify the basis for the claim of public interest immunity:

    ·The certificate first states the information was given to the Department of Immigration and Border Protection in confidence. That statement appears to have been included in error, because the relevant pages comprise an internal departmental document titled ‘Referral to Operational Integrity for Visa Cancellation Consideration.’ The document is clearly internal to the Department and not a document provided by a third party. This is confirmed in the next sentence of the certificate which states the Department considers that the document should not be disclosed to the applicant or the applicant’s representative because it contains deliberative process (internal working documents);

    ·In MZAFZ v MIBP the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were  ‘internal working documents’. The court held this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself[1];

    ·I consider the same analysis must be applied to the certificate in this case. The reason deliberative process (internal working documents) disclose a reason that could form part of the basis for a claim, but not the basis of the claim itself. It does not identify the harm that could be done to an agency by their disclosure. The certificate does not specify a public interest reason with sufficient detail to identify the claimed harm to the nation or public service that would be led to by its release and for these reasons I conclude it is invalid.

    [1] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].

30. Thirdly, the certificate is unsigned. The Australian courts have held that the absence of a signature or a date on the certificate will render it invalid.[2]

    [2] In El Jejieh v MHA (No.2) [2019] FCCA 840

31. For the above reasons I find the s.438 certificate to be invalid.

32. At hearing the applicant’s representative advised me that he had been provided with a redacted copy of the Departmental file pursuant to the FOI Act. As noted above, I am unable to ascertain which documents were intended to be subject to the s.438 certificate, although I assume them to be copies of documents submitted by the applicant’s relatives in their own visa applications. In these circumstances I discussed with the applicant the gist of the information before me that suggests he is related to [Mr A], [Ms B] and [Mr C]. The applicant agreed that he was related to each of those people and that he had given incorrect information in his visa application about his family composition.

    Information provided to the Tribunal

33. In pre-hearing submissions dated 5 April 2019, the applicant acknowledged that he was related to the persons identified in the delegate’s decision. He stated [Mr A] was his nephew and the son of his brother, [Mr D]. [Ms E] is his niece and the daughter of his brother, [Mr D]. The applicant conceded that he was named in [Mr A’s] global humanitarian visa application in 2010 as [Mr A’s] younger brother, when he is in fact [Mr A’s] uncle.

34. The applicant stated that when [Mr A] was on his way to Australia, he called him and asked him to list the applicant as his younger brother on his visa application to Australia. He stated that his family composition is as he has explained over the course of his SHEV application (and not as it appeared in [Mr A’s] 2010 visa application). He stated the Afghan identity card purporting to be in his name which was provided in support of that visa application is not a genuine document and contains a false date of birth, rather his date of birth is [another date]. The false date of birth ([DOB 1]) was provided in order to be consistent with the false claim that he was the younger brother of [Mr A].

35. The applicant acknowledged that he did in fact live in Pakistan for a period of 3-4 years from 2007 or 2008, to approximately 2011 or 2012. He stated he lived illegally in Quetta with his family during this time, as did other members of his extended family including his niece [Ms E] and his brother [Mr C]. He stated that he returned to Kabul with his family as it had become too unsafe for Hazaras to live in Quetta at this time.

36. The applicant stated he is sorry that he lied to the Department about living in Pakistan and that he did so because the people smuggler who arranged for him to come to Australia told him not to disclose his residence in Pakistan. He stated he has been, and continues to be, very worried about causing problems for his nephew [Mr A] as a result of having asked him to falsely list the applicant as his brother.

37. At hearing before me the applicant confirmed the information contained in the pre-hearing submissions. He acknowledged that he had not provided correct information in his SHEV application about his family composition. Specifically he had not included his brothers [Mr C] (who arrived in Australia on the same day as the applicant) or [Mr D] (father of [Mr A] and [Ms E]). He stated in his SHEV application that he had [number] sisters [names deleted], when in fact those people are not related to him. He asked [Mr A] to add him as his younger brother to the global humanitarian visa in the hope of being able to travel to Australia as a member of [Mr A’s] family unit. He lived in Quetta, Pakistan for a period of a few years at some time between 2007 and 2012 and he did not disclose this on the advice of the people smuggler. When he received the Department’s letter asking him to provide the police clearance certificate from Pakistan, he incorrectly stated he had not lived in that country because one of his roommates told him that if he had to get a police clearance certificate from Pakistan it would be hard and take a long time.

    Has the applicant provided a statement from an appropriate authority?

38. The issue in this case is whether the applicant has provided a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history.

39. By letter dated 21 June 2018, the Department requested that the visa applicant provided an overseas police clearance certificate from Pakistan. It is not in dispute that he has not done so. As he has not provided a statement from an appropriate authority, he does not meet r.2.03AA(2)(a).

    Should the requirement for a statement from an appropriate authority be waived?

40. I have considered whether it would not be reasonable for the applicant to provide the statement, and whether the requirement to provide it should be waived.

41. The applicant states he is not aware of having any criminal record in Pakistan and has made attempts to obtain a police clearance certificate from that country. However he argues the requirement should be waived because it is not reasonable or possible for him to provide a police clearance certificate from Pakistan.

42. This is because he is a non-Pakistani national who resided in that country unlawfully as a refugee and does not possess the documents necessary to obtain a police clearance certificate. He states that as a result, the High Commission will not process his application.  He states his brother, [Mr C], who is also in immigration detention in Australia made an application 12 months ago which has not yet been processed.

43. The applicant’s representative submits that it has proved difficult to obtain photographs of the applicant attested by a Justice of the Peace as the applicant has been in detention since his arrival in Australia. While the detention centre has indicated that it is theoretically possible for that to occur while the applicant is in detention, the necessary arrangements are yet to be made despite the process being initiated three months ago. I have viewed email correspondence between the applicant’s representative and Serco indicating that in order to progress the matter a formal request for assistance with passport photos would need to be made and requires the approval of both Serco and the Australian Border Force. If approved, the photos would be taken and a Justice of the Peace would need to attend [a location] to attest the photos.

44. I accept the process to obtain photos attested by a Justice of the Peace while the applicant is in detention may be difficult and drawn out, but the email correspondence suggests that it may be achieved if a formal request is submitted. I do not consider that on its own to be sufficient reason to waive the requirement for a police certificate.

1. However the other evidence before me suggests that even if such an application was made, it would be futile because the police clearance certificate cannot be issued to the applicant unless he can prove he lawfully resided in Pakistan:

   ·The process for a person in Australia to obtain a police certificate from Pakistan is outlined on the website of the High Commission, Canberra. For non-Pakistani nationals, this process requires an applicant to lodge with the High Commission a completed form together with three passport photographs attested by a Justice of the Peace or a police officer and a copy of the applicant’s passport confirming their stay in Pakistan, including any visa[3];

   ·I have viewed copies of email correspondence between the applicant’s representative and the High Commission for Pakistan, Canberra in respect of their attempts to obtain a police clearance certificate. By emails dated [in] April 2019, the Commission advised the applicant’s representative that they require a copy of the applicant’s passport and visa confirming his stay in Pakistan in order to process his application. Those emails state that given the applicant did not have a visa or any other legal documents permitting his residence in Pakistan, it will not be possible for the Commission to process his application;

   ·The submissions of the applicant’s representative state the above position was confirmed by telephone conversations between the applicant’s representative and the Commission. In those conversations the Commission also advised that there was a process through which non-nationals could apply through a lawyer in Pakistan acting on the authority of a blood relative residing in that country, but that applying in this way would also be futile as the applicant lived there illegally. The applicant states that while his wife and children are residing in Pakistan, they are there as unregistered refugees and cannot obtain a certificate on his behalf.

   [3]

2. In considering the applicant’s claims to have resided in Pakistan without the lawful authority of the Pakistani government, I note that DFAT reports that Pakistan is host to approximately 1.4 million registered Afghan refugees and an estimated one million unregistered Afghans. DFAT states the 2430 km border between Pakistan and Afghanistan remains permeable, despite increased fencing and border management systems[4].

   [4] DFAT Country Information Report Pakistan 20 February 2019

3. As noted above, the applicant has at all times claimed to be an Afghan national and this has been accepted by the Department and the first two Tribunals. The applicant has produced to the Department a copy of an Afghan taskera and an Afghan driver’s licence. The visa applications of his related family members made over a long period of time indicate they are Afghan nationals. Those visa applications were supported by a number of Afghan identity documents, including taskeras and passports.

4. While it is apparent from the related files that many members of the applicant’s family have resided in Pakistan at various times, there is no evidence on any of the files before me that would suggest the applicant, or any member of his immediate or extended family, are nationals of Pakistan or have otherwise been granted any legal status to remain in that country. Rather the related files indicate that at least some of those extended family members have been granted penal waivers, in circumstances I can only assume to be similar.

5. The applicant’s representative submits that the seemingly insurmountable difficulties for foreign nationals who have lived in Pakistan unlawfully to obtain a police clearance certificate has led to the Department invariably granting waivers in such circumstances. Email correspondence from the Commission in an unrelated case in 2016 confirms that there is little chance that an Afghan citizen who lived in Pakistan unlawfully would be able to obtain a police clearance certificate, because the authorities in Pakistan would not have any record of that person. 

6. In these circumstances, I am satisfied the applicant has made reasonable attempts to obtain a police clearance certificate in Pakistan. I am satisfied that even if further time were granted to allow a formal application to be processed by the Pakistani authorities, it is highly unlikely that a police clearance certificate would be issued to the applicant.

7. For these reasons I am satisfied that it is not reasonable for the applicant to provide the requested statement from an approved authority, and that it is appropriate to waive that requirement under r.2.03AA(3). The applicant therefore is not required to provide the statement under r.2.03AA(2)(a).

   Conclusion

8. The Departmental file contains a Form 80 completed by the applicant in 2010. The delegate’s decision does not suggest that a further Form 80 has been requested from the applicant in relation to his later visa application, nor am I able to locate any such request on the departmental file. Therefore the requirement in r.2.03AA(2)(b) does not apply.

9. On the basis of the above findings, the applicant meets r.2.03AA(2).

   DECISION

10. The Tribunal remits the application for a Safe Haven Enterprise Visa (Class XE) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 790 visa:

    ·Regulation 2.03AA(2).

    Alison Murphy
    Member