BIERNACKI (Migration)

[2024] AATA 4481

BIERNACKI (Migration) [2024] AATA 4481 (9 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kajetan BIERNACKI

CASE NUMBER:  2314879

HOME AFFAIRS REFERENCE(S):          BCC2022/4504023

MEMBER:Wendy Banfield

DATE:9 October 2024

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 09 October 2024 at 12:17pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – whether the applicant met the public interest criteria 4001 – applicant has not provided a statement from an appropriate authority – adverse information – applicant is avoiding applying for or obtaining a current police clearance certificate from Poland – waiver in reg 2.03AA(3) does not apply – decision under review affirmed       

LEGISLATION
Migration Act 1958, ss 65, 359, 375
Migration Regulations 1994, r 2.03AA, Schedule 2, cl 500.217

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 Home Affairs to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 October 2022. The criteria for a Student (Temporary) (Class TU) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. The applicant was invited to attend a hearing on 24 September 2024 but did not appear. The Tribunal was able to reach him by telephone and stated he would join the scheduled video conference for the hearing. However, he did not appear and later advised he had technical difficulties. The Tribunal agreed to reschedule the hearing to allow the applicant to appear.

4. The applicant appeared before the Tribunal on 30 September 2024 to give evidence and present arguments.

5. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: reg 2.03AA(1). In this case, 500.217 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001 The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

6. 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 reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

7. The delegate refused to grant the visa on 6 September 2023 on the basis that the applicant did not meet reg 2.03AA because the applicant failed to respond to requests to provide sufficient information to assess whether the applicant met the public interest criteria 4001. As a result, the applicant did not satisfy regulation 2.03AA and consequently, cl.500.217.

8. Prior to the hearing the applicant provided the following submissions:

   ·     Department of Home Affairs (the Department) decision record dated 6 September 2023.

   ·     Australia National Police Certificate dated 28 July 2023 in the name of the applicant indicating driving offences on 09 September 2021 and 12 December 2022.

   ·     Polish police certificate dated 8 September 2015 (with English translation).

   ·     Polish Solicitor letter dated 15 March 2024 and Ministry of Justice National Penal Registry application form (with English translation).

   ·     Request for an extension of time to respond to information dated 30 July 2024.

9. The Tribunal also considered the information provided to the Department at the time of application.

   359A invitation to comment

10. On 16 July 2024 the Tribunal wrote to the applicant inviting him to comment or respond to information. The applicant was advised about the relevance of the information and requirement to respond by the due date:

    I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to refuse to grant a Student(Temporary) (Class TU) visa.

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·     The Department of Home Affairs (the Department) issued a non-disclosure certificate and notification under s.375A of the Migration Act preventing the disclosure of certain documents held on the Departmental file in your case.

    ·     The documents contain information that relates to the Department’s internal processes when assessing your student visa application.

    ·     The Tribunal is unable to disclose the documents that are the subject of the non-disclosure certificate but can advise that they relate to information the Department considers when assessing your application for a student visa.

    ·     To be valid, the s.375A certificate must state that disclosure of the material would be contrary to the public interest for a given reason. The Tribunal considers a public interest reason is clearly specified on the face of the s.375A non-disclosure certificate and the certificate is valid.

    The information covered by the certificate is relevant to the application for review because it relates to criteria that must be met to be granted a student visa.

    You are invited to make submissions on the validity of the s.375A certificate.

    Your comments or response should be received by 30 July 2024.

    You are invited to give comments on or respond to the above information in writing.

    If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 30 July 2024, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 30 July 2024 and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

11. A copy of the s.375A certificate was attached to the letter to the applicant.

12. On 30 July 2024 the applicant advised he was aware the Department received adverse information about him and requested an extension of time to seek legal advice and respond to the invitation.

13. On 31 July 2024 the Tribunal advised the applicant that he would be invited to a hearing, and he could provide a submission up to that date.

14. On 4 September 2024 the applicant was invited to attend a hearing on 24 September 2024. He did not appear at the time scheduled but contacted the Tribunal by phone 30 minutes later. The Tribunal agreed to reschedule the hearing to 30 September 2024 to allow the applicant to appear.

15. The applicant did not provide a response to the invitation to comment prior to the hearing or at all. The Tribunal considers the s.375A certificate to be valid.

    Evidence at the hearing – 30 September 2024

16. The Tribunal explained to the applicant that at the time of application he was required to provide a criminal history statement and a Form 80. It was noted that he did provide a Form 80, however, the criminal history statement from Poland was not current. When asked if he understood that was the reason why his visa was refused, he said “yes” and “no”. The applicant then said that he came to Australia in 2014 and when he was asked to provide the information, he had already been here 10 years after arriving as a student.

17. The applicant said he planned to apply for a sponsor visa and in 2016 submitted a police check from Poland. He advised he lost the chance to be sponsored as his English was not good enough. Then he had a visa cancelled in 2020. The applicant explained he was asked for a police check again and he contacted a lawyer in his city in Poland. He claimed he was told he would have to wait a few months because between June and August it is a holiday, and the courts are not operating during that time. The applicant claimed that as a result he is still waiting for the police certificate from Poland.

18. It was put to the applicant that according to the evidence, he sought help from his lawyer in March 2024, before the months he referred to. He repeated that it was a holiday period and said he did not know why the document could not be obtained yet. He was asked if he could apply for the necessary document himself. The applicant said he was not sure. Regarding the 2015 certificate, the applicant claimed his ex-wife’s mother helped. He first said he was not sure if he could obtain it himself but thought he would have to go there himself.

19. The applicant was asked if he had approached the Polish consulate and he said he had only spoken to his lawyer. The Tribunal asked if there was any reason why he would not want to obtain a police record and he said there was not. He also declared he does not have a criminal record from Poland. The applicant claimed he only had problems with his driver’s licence while in Australia. The applicant then said he does not have anyone in Poland and does not know if he has any charges.

20. The applicant asked to explain about his current circumstances. He said he has remarried and has a daughter and a new life. He said it is very stressful and he worries about his family, in particular his son in Poland and his daughter in Australia. He said he wants to apply for a partner visa but has to deal with his student visa problem first. The applicant stated his last course of study, a graduate diploma is important to him. The applicant claimed he has not returned to Poland or left Australia in the last 10 years. 

21. The Tribunal put to the applicant that there are procedures he can follow to obtain a police clearance such as applying online. He was asked if he had made any such inquiries. The applicant said he has not, and repeated his understanding he would need to be in Poland. The Tribunal noted he was not in Poland when he obtained the previous certificate from 2015 and he agreed he had not been there at that time. The applicant said he only has his mother who lives in a village and his son, living in Poland. He claimed the friends he still has contact with do not live in his city.

22. The Tribunal explained the waiver conditions to the applicant including whether or not it is reasonable for the applicant to provide the statement. The applicant claimed there is a difficult political situation in Poland that contributes to his problem, and it is difficult to get anything done at present. He referred to courts and lawyers being in disarray.

23. The Tribunal invited the applicant to comment on information in accordance with s.359AA of the Migration Act. He was advised that it did not appear to be difficult to apply for a Polish police certificate online from the national criminal register. It was put to him that the Polish government website has clear instructions on how to apply for a police certificate. The Tribunal explained that the applicant has not provided the required Polish police clearance and appears not to have investigated applying for the information himself. The applicant said he used his lawyer for it. The Tribunal put to him that if his lawyer is not providing the information, he can apply for it himself. He repeated that he decided to go with his lawyer as he thought it was the right thing to do.

24. The applicant was asked if he wished to make any further submissions on the matter. He referred again to difficult circumstances in Poland due to a change of government and a mess within the judicial system making it difficult to obtain anything. The applicant requested time to provide a written statement after the hearing and the Tribunal agreed to one week for him to do so.

    Written submissions – 8 October 2024

25. The applicant provided a written statement to the Tribunal after the hearing and made the following claims:

    I arrived in Australia in 2014, and two years later, I sought sponsorship as a painter. To fulfill the requirements for the 457 visa I applied for a police clearance from Poland, which I successfully provided to the department. This was the only clearance I have obtained since arriving in Australia, and I have not left the country since that time. Recently, however, I attempted to obtain this clearance again, only to discover an issue that arose during my absence from Poland.

    To investigate this matter, I engaged a lawyer in Poland. It appears that, during my absence, an accusation was made against me. In Poland, we have an institution known as the "crown witness" system, wherein an individual who has been convicted may cooperate with public prosecutors to reduce their sentence. After conducting research, I found that someone may have made allegations against me.

    Unfortunately, I was never informed of any proceedings occurring in my absence. The main issue stems from judicial reforms initiated in Poland in 2014, which dismantled the independence of the judicial system. Since that time, the ruling party has appointed judges rather than allowing for impartial selections, leading the European Union to treat Poland as lacking in the rule of law. As a result, many countries have denied extradition requests for Polish citizens due to concerns regarding the integrity of court proceedings.

    I believe I have become a victim of this situation, as I was unaware of any issues against me while I was outside the country. Years ago, the immigration department informed me that they had received information detrimental to my case, prompting a request for additional details. There was a potential threat to my visa; however, after I explained my circumstances, the department chose not to cancel it.

    I am actively working to understand what occurred during my absence and the nature of the accusations made against me. I want to assure you that all court hearings in Poland, including decisions made by the highest courts, have been challenged by European Union institutions. Regrettably, the events between 2015 and 2023 in Poland cannot be viewed as objective under the law.

    I will keep the Department of Immigration and the Administrative Appeals Tribunal informed as I seek to resolve this matter. Below, I have included pertinent information regarding the situation in Poland.

26. The applicant listed examples of failed extradition cases or decisions that he claimed occurred between other European countries and Poland. He included information about the complexities of extradition to Poland as well as claims about significant challenges and controversies for the Polish judicial system.

27. The submission concluded with the following statement:

    I also want to clarify my situation for the sake of my relationship with my Australian wife and child. This is very stressful situation for them as well and I need to ensure that everything is in order so we can have a peaceful life together. By having the opportunity to accomplish my Graduate Diploma of Management without father interference I would be able to achieve my goal.

    I will provide all information as soon as I hear from my Polish lawyer. Please do not hesitate to contact me if you require any further information.

28. With his written statement the applicant re-submitted the Polish police certificate dated 8 September 2015 and the English translation.

29. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

30. 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.

    Has the applicant provided a statement from an appropriate authority?

31. The delegate of the Minister requested the applicant to provide a current police certificate from Poland as the document from 8 September 2015 did not contain all relevant information. He was given 28 from the receipt of the request to provide the information. The applicant did not provide the statement that was required for the decision maker to assess his application.

32. The applicant has not provided a statement from an appropriate authority and therefore does not meet reg 2.03AA(2)(a). The Tribunal has therefore considered whether it would not be reasonable for the applicant to provide the statement, and whether the requirement to provide it should be waived.

33. The applicant claimed during the hearing that he has applied for a new Police Certificate through a lawyer in Poland. He gave details of what he said were impediments to obtaining the document including holiday shutdowns affecting the courts, and difficulties within the Polish political and judicial systems. When asked if he has made any attempt to apply for the certificate himself, the applicant said he has not because he believes he needs to be in Poland himself. When it was put to him that he had not been in Poland when he obtained a certificate in 2015, the applicant stated he no longer has anyone in his home country that can assist.

34. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because, subject to his comment or response, it may indicate he is avoiding obtaining a police certificate from his home country. The information put to him was that there are procedures for obtaining a police clearance from Poland. The Tribunal explained to the applicant that a simple Google search brought up the Polish government website where applications can be made. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. He was invited to comment on or respond to the information and advised that he may seek additional time in which case the Tribunal may adjourn the hearing or allow time after the hearing to provide a response.

35. The applicant responded during the hearing. He insisted that he has relied on his lawyer to obtain the information from Poland because he believes it is the right thing to do. He also blamed a “change of government” in Poland and issues with the judicial system making it difficult to obtain anything.

36. In his written submission, the applicant explained his personal circumstances and his belief that false allegations have been made against him in Poland. He alleged there are impediments to his case resulting from issues within the Polish government and judiciary. The applicant claimed these issues are exemplified by failed extradition cases from European countries to Poland, the complexities of extradition to Poland and controversies within the Polish judicial system.

37. As discussed with the applicant during the hearing, the Tribunal is satisfied there are procedures available to obtain a Polish police clearance certificate from Australia. The applicant concedes he is aware the Department received adverse information about him which he claims are likely unfounded allegations about him from an individual in Poland. The Tribunal considers the applicant is avoiding applying for or obtaining a current police clearance certificate from Poland because it may contain information that is unfavourable. The Tribunal finds the applicant has had ample opportunity to obtain a current police certificate from his home country, as requested by the delegate of the Minister.

1. The Tribunal is not satisfied that it is not reasonable for the applicant to provide the requested statement from an approved authority. The waiver in reg 2.03AA(3) does not apply. Therefore, as the statement has not been provided, the applicant does not meet reg 2.03AA(2)(a).

   Conclusion

2. On the basis of the above findings, the applicant does not meet reg 2.03AA(2).

   DECISION

3. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

   Wendy Banfield
   Member