Hussein Ali (Migration)

[2018] AATA 4182

Hussein Ali (Migration) [2018] AATA 4182 (4 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Zahra Hussein Ali

VISA APPLICANT:  Ms Zeinab Hussein Ali

CASE NUMBER:  1710039

DIBP REFERENCE(S):  OSF2012/050300 OSF2012050300

MEMBER:David Barker

DATE:4 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 117 visa:

·Regulation 2.03AA(2)

Statement made on 04 September 2018 at 1:47pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan relative) – evidence of criminal history – police certificate clearance – valid Mandate – statement from relevant authority – safety risks to travel alone – travel restrictions – visa time limits – range of strategies to acquire certificate – decision under review remitted


LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA, Schedule 2 cl 117.223

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 3 January 2013. The criteria for a Child (Migrant) (Class AH) 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.

3. The delegate refused to grant the visa on 3 March 2017 on the basis that the applicant did not meet r.2.03AA because she did not provide the Department of Immigration (the Department), when requested, with a police clearance certificate from Kenya. 

4. On 3 May 2018 the Tribunal wrote to the review applicant, who is the sister and sponsor of the visa applicant, inviting her to appear at a hearing set down for 11 July 2018.  This hearing invitation indicated the Tribunal may wish to take evidence by telephone from the visa applicant.

5. On 3 July 2018, the review applicant’s representative emailed the Tribunal to advise the visa applicant had been unwell for three to four weeks and was unable to participate in the hearing, but notwithstanding this the review applicant requested the hearing proceed.  The Tribunal for reasons other than this needed to reschedule the hearing.

6. The review applicant appeared before the Tribunal on 24 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The visa applicant remained on this date too unwell to participate in the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and Swahili and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   Relevant Law

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.117.223 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. PIC 4001 refers to a character test under the Act. Most visa subclasses provide that the Minister must be satisfied that the visa applicant meets the requirements of PIC 4001 as a criterion for the grant of the visa.

11. 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.

    Background

12. The visa applicant is a national of Somalia and is 22 years old.

13. A statutory declaration, dated 22 February 2013, from her sister, the review applicant and sponsor for the Subclass 117 Child visa, declares amongst other things that the visa applicant moved from Bokool, Somalia to the Hagadera Refugee Camp in Kenya in September 2011.

14. The application for a Subclass 117 Child visa was refused on 10 September 2013 because the delegate was not satisfied the visa applicant was the biological sibling of the review applicant. The review applicant sought review of that decision with the Tribunal, which (differently constituted) on 1 October 2015 remitted the application to the Department with the direction that the visa applicant met cl.117.211 of Schedule 2 to the Regulations.

15. A summary of relevant dates from an email sent to the representative by the delegate in July 2016 provides the following information:

    ·On 2 November 2015 the visa applicant was requested to provide the Department with a Kenya police clearance certificate;

    ·On 30 November 2015 the representative wrote to advise the review applicant had left Australia for Somalia; she would use this trip to take the visa applicant (whom the representative advised relocated from Kenya in April 2015) to Kenya where she could begin the process of getting the requested Kenya Director of Criminal Investigations Department (CID) clearance; we requested clarification on the visa applicant's exact residence and a history of residences going back 10 years;

    ·On  2 December 2015 the representative provided the visa applicant's current and past residences' information;

    ·On 2 December 2015 an e-mail was sent advising that this information (police clearance) was first requested on 3 January 2013 – the visa applicant remained in Kenya for a further 2 years;

    ·On 3 December 2015 the representative advised the visa applicant was planning to arrange for a Kenya police clearance as soon as she was out of Somalia;

    ·On 4 January 2016 the representative advised the visa applicant would soon travel out of Somalia to apply for her Kenyan police clearance;

    ·On 15 March 2016 an e-mail was sent requesting the status of the outstanding police clearance;

    ·On 29 March 2016 the representative wrote stating the visa applicant had sent her fingerprints for Kenyan police clearance and would be submitting it to the Department soon;

    ·On 27 April 2016 a request was made on the status of the penal clearance;

    ·On 27 April 2016 the representative stated the visa applicant had been unable to submit an application from Ethiopia and that she did not have a current UNHCR Mandate;

    ·On 6 June 2016 the representative wrote: ‘The application for a Good Conduct Certificate has now been made with an outdated mandate and we have been asked to wait 3 weeks for an outcome’;

    ·On 6 June 2016 an additional 28 days to provide the document was given;

    ·On 4 July 2016 the representative provided feedback stating that ‘you did not yet have a Good Conduct Certificate and that a further enquiry would be made the following morning’; and

    ·On 4 July 2016 the Department wrote to advise that no further extensions on the period for the visa applicant to provide the police clearance were available.

16. An email from the representative to the Department dated 16 September 2016 notes that [Ms A] had taken documentation to the CID in Kenya and they looked at the Mandate and said a police clearance could not be issued because it was out of date. The representative indicated that she contacted the CID office by telephone and was advised that a police clearance could only be issued with a valid Mandate. The representative also noted in this email that:

    ·The visa applicant was included on the Mandate of an adult when she was a child.

    ·That Mandate is now out of date.

    ·Had the visa applicant been in Kenya rather than Ethiopia she would have been able to make her own visits to CID. Travel to Kenya is very dangerous for single Somalian women and the visa applicant does not have a visa.

    ·The visa applicant left Kenya and returned to Somalia in April 2015. As the applicant is now an adult, outside Kenya and not currently registered as a refugee with the UNHCR it is impossible for her to satisfy the Kenyan CID's requirements of a valid Mandate for issue of a police clearance certificate.

17. The Department’s file includes a copy of a UNHCR Mandate, dated 30 August 2012, which states the visa applicant is a refugee and that the validity of the document expires on 19 July 2014.

18. The visa applicant claims it is not reasonable for her to obtain a police clearance from Kenya.  The review applicant and the representative have provided submissions and declarations outlining the circumstances and the steps the visa applicant and people acting on her behalf have made to obtain the police clearance certificate.

19. A statutory declaration from the review applicant, dated 6 July 2018, in summary declares:

    ·After the review applicant was requested to provide a Kenyan police clearance certificate for her sister, the review applicant instructed her sister to get a passport along with medical examination results and biometric identification so that she could go to Ethiopia. The review applicant then travelled to Somalia, where her sister is currently residing to make arrangements for a visa so her sister could travel to Ethiopia. They lined up outside the Ethiopian Embassy from 7.30am to 3.30pm every day (except Friday and Sunday when they were closed) waiting to get a visa. They never reached the door before closing time.

    ·Eventually someone came along the line taking documents and money from people for processing so that the people could go home and come back to get their visas. The review applicant and her visa applicant had to give a reason for travel and they said it was to do medical examinations for an Australian visa. The review applicant’s Australian passport was used as evidence and the request from Immigration was used as well. Their passports were taken inside and we were to return the next day.

    ·However, before they returned the next day there had been a disturbance in the Embassy and it was closed for a two week period. After it re-opened their passports were returned, but no visa was provided permitting the visa applicant to travel to Ethiopia.  They returned to where the visa applicant was residing in Hargeisa and with the assistance of the police in that town they were successful in getting a visa, with one month duration, permitting the visa applicant to travel to Ethiopia.

    ·It took approximately one month to get the visa and unfortunately by the time it was available the review applicant had to return to Australia. She organised for a man in Hargeisa to assist the visa applicant to travel to Ethiopia. He brought her to Addis Ababa and arranged for her to stay with a woman there. In Addis Ababa the visa applicant was able to undergo medical examinations and biometric identification without any problem. She attended the Federal Police Department in Addis Ababa to have her fingerprints taken and asked that they send the fingerprints with her application to Kenya for police clearance. She was told that they could not directly deal with the Kenyan Government on her behalf and that she herself would have to send it to Kenya by DHL.

20. A statutory declaration from [Ms A], dated 6 July 2018, in summary declares:

    ·She lives in Kenya and in May 2016 she agreed to assist the visa applicant, who was no longer living in Kenya, to obtain a Kenyan police clearance certificate.

    ·She received a letter from the visa applicant’s agent in Australia, in which there was a note of instructions for her, and she accordingly took the letter addressed to the CID, dated [in] May 2016, and other attached documents, to that department situated in Kiambu Road, Karura.  

    ·At the CID the paperwork was taken by an officer and she was told to come back in three weeks.  She returned around the beginning of July 2016 and was told that they were waiting until UNHCR verification could be made but the UNHCR office was closed and no Mandates were being given. The officer returned the application, including the outdated Mandate.

    ·The officer suggested that she should take the Mandate to the UNHCR office for verification. The officer refused to give his name and would not confirm in writing that an application could not be made. She tried going to the UNHCR office which is near Westlands. There were a lot of refugees camping outside the refugee office and there was no-one there to attend to them.

    ·Towards the end of 2016 she received another letter from the representative, which included a further letter addressed to CID, along with other documents, and a request [Ms A] add a money order for 1000 Kenyan shillings and the original fingerprints, which were still in her possession. She was also asked to place a stamp on an envelope addressed back to her post office box, which she did, and enclosed that with the letter to CID. The whole package then went into an envelope addressed to CID, enclosed with the agent’s letter, and it was posted as instructed.  No communication from CID was ever received into her post office box.

21. The Department provides online advice with regard to seeking penal certificates from Kenya, which relevantly states:

    Postal address
    Director of Criminal Investigations Department
    PO Box 30036
    Nairobi
    KENYA

    Additional information
    Relevant document: 'Kenya Certificate of Good Conduct'.

    Residents provide: National ID card. Passports will only be accepted for applicants who departed Kenya, permanently, prior to turning 18 years of age. Applicants under 18 years are required to provide their birth certificates to support their applications.
    Kenyan citizens must apply for their penal clearance though their eCitizen account and present in person at CID to provide their fingerprints. Certificates will be issued electronically to Kenyan citizens only.

    Non-citizen residents provide: - A passport; evidence of legal residence in Kenya and original fingerprints.

    Fee: 1000 Kenyan Shillings (Ksh). If applying from outside Kenya, please provide an
    international money order for 1000Ksh or equivalent made payable to the Director of Criminal Investigation Department.

    Note: Individuals residing in Kenya as refugees are required to apply for a police clearance letter, in person, at the Refugee Affairs Secretariat (RAS) office responsible for their area of residence. Applications for refugees cannot be made directly to the Criminal Investigation Department. Only refugees registered with RAS can obtain a police clearance letter.

    Individuals who resided in Kenya as refugees are no longer able to obtain police clearances unless they are physically present in Kenya to attend a RAS office and provide their fingerprints.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

23. In this matter the Tribunal did not have the benefit of oral evidence from the visa applicant due to her to her ill health reportedly preventing her from participating in the hearing.  The Tribunal accepted the review applicant’s request that the hearing nonetheless proceed on the basis of the documentary evidence and the oral evidence provided by her and [Ms A] during the hearing.  The oral evidence provided by the review applicant and [Ms A] during the hearing was entirely consistent with information contained in statutory declarations and written statements from them which has been provided with the review application. The Tribunal is satisfied that both the review applicant and [Ms A] were credible witnesses and that weight can accordingly be given to their evidence.  

    Has the applicant provided a statement from an appropriate authority?

24. In this matter, it is not in dispute that on 2 November 2015 the Department requested that the visa applicant provide a police certificate from Kenya. It is also not in dispute that the visa applicant has not provided the certificate.

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

26. For the following reasons, the Tribunal is satisfied it would not be reasonable for the visa applicant to provide the statement, and that the requirement to provide it should be waived.

27. The Tribunal accepts the visa applicant moved from Somalia to the Hagadera Refugee Camp in Kenya in September 2011 and then returned to Somalia in April 2015. The Tribunal accepts the visa applicant is highly reliant on her elder sister, the review applicant, for assistance and advice in relation to visa related matters. The Tribunal accepts there are safety risks and other constraints impacting on a young single woman’s ability to travel unaided in the region where the visa applicant resides.  The Tribunal further accepts the ability of the review applicant, or third parties acting on her behalf, to assist the visa applicant in her home country and nearby countries, such as Ethiopia or Kenya, is constrained by travel restrictions, visa time limits and other such constraints. The Tribunal has noted the Department’s current advice that individuals who resided in Kenya as refugees are no longer able to obtain police clearances unless they are physically present in Kenya.

28. The Tribunal is satisfied endeavours have been made to get a police clearance certificate from an appropriate authority in Kenya, but that this process has been constrained by a range of factors, which include the visa applicant’s lack of a current UNHCR Mandate, obstacles encountered in attempts to get her expired UNHCR Mandate recognised and the practical obstacle to her getting a further UNHCR Mandate arising out of her being not currently registered as a refugee with the UNHCR. 

29. The Tribunal acknowledges the Department may have requested a police clearance certificate from Kenya in January 2013 but considers it reasonable that the focus of the visa applicant and third parties assisting her was upon the Department’s initial decision to refuse the visa due to concern as to whether the visa and review applicants were actually siblings. The Tribunal is satisfied that from the time the visa application was remitted to the Department in late 2015 and they again asked for the police clearance certificate from Kenya, repeated attempts utilising a range of strategies have been attempted to acquire the aforementioned certificate, unfortunately without success.

30. The Tribunal has considered all of the circumstances of this matter and is 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

31. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.

    DECISION

1. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criterion for a Subclass 117 visa:

   ·Regulation 2.03AA(2).

   David Barker
   Member