Kaur (Migration)

[2022] AATA 4458

Kaur (Migration) [2022] AATA 4458 (10 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Dawinder KAUR

CASE NUMBER:  2200403

HOME AFFAIRS REFERENCE(S):          BCC2020/1725222

MEMBER:Mireya Hyland

DATE:10 November 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

·Regulation 2.03AA

Statement made on 10 November 2022 at 5:43am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – evidence of criminal history – statement from a relevant authority, however described – Punjab Police Clearance Certificate – pandemic closure of police clearance processing agency – Procedural Instructions – penal checking by a local Punjabi Senior Superintendent – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 396
Migration Amendment (2014 Measures No 2) Regulation 2014 (SLI 2014, No 199)
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4, Public Interest Criteria 4001; r 2.03AA

CASES

Alimi v MIAC [2007] FMCA 1520
Drake v MIEA (1979) 24 ALR 577
Durzi v MIMIA [2006] FCA 1767
Feng v MIAC [2011] FMCA 576
He v MIAC [2009] FMCA 1142
He v MIBP [2015] FCCA 2915
Jaravaza v MIAC [2013] FCCA 68
Lobo v MIMIA [2003] FCAFC 168
Moller v MIAC [2007] FMCA 168
Port of Brisbane Corporation v DCT (2004) 140 FCR 375
Qiao v MIAC [2008] FMCA 380
Re Drake and MIEA (No 2) (1979) 2 ALD 634
Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732
Su & Anor v MIMIA [2005] FCA 655
SZSKR v MIBP [2014] FCCA 2
Total Eye Care Australia Pty Ltd v MIAC [2007] FMCA 281
Vishnumolakala v Minister for Immigration & Anor [2006] FMCA 1209
Xue Fan v MIAC [2010] FMCA 490

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 on 20 December 2021 to refuse to grant the applicant, Dawinder Kaur, a Visitor (Class FA) visa under s.65 of the Migration Act 1958.

2. Mrs Kaur applied for the visa on 11 June 2020. The criteria for a Visitor (Class FA) Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations. Regulation 2.03AA applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002 in Schedule 4 to the Regulations: r.2.03AA(1). In this case, cl.600.213(1) of the Regulations requires Mrs Kaur to meet PIC4001 and PIC4002. She is, therefore, required to satisfy the criterion in r.2.03AA of the Regulations.

3. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement, however described, from an appropriate authority in a country where the person resides, or has resided, with evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires the applicant to provide a completed approved Form 80 if requested. 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.

4. The delegate refused to grant the visa on the basis that Mrs Kaur does not meet r.2.03AA because the Department for Home Affairs (the Department) requested that she provide a statement from a relevant authority in India and Australia with evidence about her criminal history and the delegate determined that Mrs Kaur did not provide the Indian statement. Mrs Kaur provided an Australian Federal Police (AFP) National Police Certificate dated 18 November 2020. She also provided a Police Clearance Certificate from the Office of the Senior Superintendent of Police in Tarn Taran, Punjab, India dated 12 December 2020. The Department concluded that the ‘Indian penal issued by Office of Sr. Supdt. Of Police Tarn Taran, Punjab was not qualified for assessment.’ It wrote to Mrs Kaur on 18 December 2020 stating that as she is an ‘India citizen but not resident in India currently, please apply to the nearest Indian High Commission, Consulate or Embassy in your country of residence.’ On 11 May 2021, the Department wrote to Ms Kaur claiming it could only accept a police clearance certificate ‘issued from the Regional Passport Office.’ Mrs Kaur did not provide any police clearance from an Indian Consulate in Australia or the Regional Passport Office.

5. The issue in this case is whether Mrs Kaur has provided a statement from a relevant authority in India with evidence about any criminal history. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   consideration of claims and evidence

6. On 13 January 2022, the Tribunal wrote to Mrs Kaur to enquire about an Indian police clearance. The usual course for obtaining an Indian police check in Australia is to contact the Indian Consulate in the relevant State and apply for a police clearance certificate. According to the Indian Embassy website, the Indian Embassy and General Consulates in Australia outsource the processing of all police clearance requests to an organisation called VFS Global. With her review application, Mrs Kaur sent the Tribunal a copy of a letter from VFS Global dated 17 February 2021 returning her application for a police clearance because it was incomplete. The letter states that the missing information is highlighted on the attachment. Mrs Kaur’s application form is attached. Where the form requires a signature or a thumb print there is an ‘x’. The word ‘signature’ is highlighted. The Tribunal notes that the form has ‘Passport Seva for Indian Embassies’ printed at the top of most pages.

7. In a submission to the Department in response to its enquiry on 7 July 2021, Mrs Kaur claimed to have resubmitted the application, however when she went to follow up with VFS Global she was told its ‘status was not submitted’ even though when she checked the website it showed the application was submitted. Then due to the Covid-19 pandemic the Indian Consulate and VFS Global in Melbourne shut down. On 26 January 2022, in response to the Tribunal’s enquiry, Mrs Kaur’s daughter-in-law, Pooja Sharma, emailed the Tribunal and claimed that she had both tried to call VFS Global and book an appointment on their website, but she was unable to contact them. The submission states:

   ‘I have personally been to their office three times by walk-in, they said to go home apply online, print the papers, and send them to us. I did on one 6months back and they return my documents after 12 to 15 days, with mistakes, that this is not good, that is not good and as a result, we were unable to comply with immigration request, I upload all the documents to immigration and proof too, Now I again send the documents to them via post, still, no phone is working, no appointment is available, I have not got any reply yet,’

8. On 28 October 2022, the Tribunal called VFS Global and spoke with an officer about the process for obtaining an Indian police check. He said that the applicant must make an application online and provide two people in India who can confirm the applicant's identity. Once the applicant’s identity is confirmed, the local police will verify the applicant's criminal history and issue the police clearance certificate. From other Indian cases before it, the Tribunal is aware that what is received by the applicant and submitted to the Department or Tribunal is a letter from the relevant Indian Consulate, not the police clearance certificate received from the local area police. The Tribunal confirmed with VFS Global whether the process involves anything other than a police clearance certificate from the applicant’s local area police. The officer said ‘no’. The Tribunal notes that it is not always simple to find or obtain information from the Indian Embassy and Consulates, although after a number of calls to various people and with some persistence it was able to get the information it required from VFS Global by telephone.

9. The Tribunal accepts that Mrs Kaur has made efforts to make the application to VFS Global for a police clearance, but there have been bureaucratic and Covid-19 related issues that have significantly delayed the process. It has confirmed that the place of residence and police station on the VFS Global form submitted, from which VFS Global would receive the police clearance certificate, is Gandiwind Village and Sarai Amanat Khan in Tarn Taran, Punjab respectively. These are in the area around Amritsar on the outskirts of Lahore. According to her Indian ID and her passport Mrs Kaur lives in Gandiwind Village and her local police office is Sarai Amanat Khan, Tarn Taran, Punjab, consistent with what she put on the VFS Global application form.

10. The Police Clearance Certificate provided by Mrs Kaur to the Department is from the Senior Superintendent of Police in Tarn Taran (the Indian PCC), being the Police District in which Sarai Amanat Khan Police Station is located. It identifies Mrs Kaur’s date and place of birth, her passport number, place of issue and expiry date, her husband’s name and the village in which they live, and the police station that has jurisdiction over her place of residence. This information is all consistent with the VFS Global form and the other documents before the Tribunal. There is no evidence before the Tribunal to suggest that Mrs Kaur has ever lived in a different part of India. Nor is there any evidence that she is not a reliable witness, with the Department’s case management notes citing ‘No character concerns’. The Tribunal accepts that the Indian PCC is a genuine document obtained from the proper police office in India and is in relation to Mrs Kaur.

11. On 18 December 2020, the Department rejected the Indian PCC because it ‘was not qualified for assessment.’ The Tribunal does not know what that means. It finds the legislative requirements appear clear. Regulation 2.03AA(2)(a) states:

    (2)If the Minister has requested the following documents or information, the person has provided the documents or information:

    (a)a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    The statement does not have to be in any particular form to meet the legislation but may be ‘however described’ as long as it is provided by ‘an appropriate authority’ in the country. The term ‘appropriate authority’ is not defined in the Act or Regulations and there is nothing in the regulation to indicate that only the relevant country can determine what is ‘an appropriate authority’, although obviously that would be highly persuasive. The question of what constitutes ‘an appropriate authority’ from any particular country is one for the decision-maker to determine on the available evidence. In the present case the country is India and there is no evidence before the Tribunal that there is any legislation in India related to the issuing of police checks for international visa purposes or at all.

12. In considering whether the Tarn Taran Senior Superintendent of Police is ‘an appropriate authority’ in India, the Tribunal has considered the purpose of the regulation. Regulation 2.03AA[1] must be met where an applicant is required to satisfy PIC4001 or 4002, which relate to the Character Test. It was introduced to codify the Department’s longstanding administrative practice of requesting applicants to provide police clearance and criminal history checks from countries where they reside, or had previously resided, so that decision-makers could assess their ability to satisfy those public interest criteria.[2] The Tribunal notes that the Regulations refer to ‘a police force’ as an example of an appropriate authority, but it appreciates that, while the police force in a particular country may often be the relevant authority for the purposes of r.2.03AA, the note is not actually part of that regulation.

    [1] Inserted by the Migration Amendment (2014 Measures No 2) Regulation 2014 (Cth) (SLI 2014, No 199) to apply to applications made on or after 12 December 2014, as well as those made prior to, but not finally determined as at that date.

    [2] Explanatory Statement to SLI 2014, No 199 at p.10-11.

13. Regulation 2.03AA states that the statement can be ‘however described’ and so it need not be in a particular form, for instance the form dictated by either the Department or the Indian Embassy/VFS Global. While the Indian government may have a policy that for Indian citizens outside India the police check should be obtained through their agents, VFS Global, there is nothing on their website or that the Tribunal could find to support that this is somehow legislated or that they are the only appropriate authority for the purposes of r.2.03AA. It is equally likely that the process set out on the Indian Embassy’s website is in response to the Department’s often proscriptive policy requirements relating to identity. In fact, the Indian PCC appears to be based on information from the same source that VFS Global would have received and on which it would have based its own police clearance certificate. And while the Department has claimed it can only accept a police clearance certificate obtained through Passport Seva from the Regional Passport Office for overseas Indian applicants and VFS Global for onshore visa applicants, without some evidence of an intention to the contrary, this would seem to be more restrictive than the words ‘however described’ in the regulation.

14. The Department’s policy is set out in the Procedural Instructions (the PIs) which contain guidelines to the Department’s interpretation and application of the Act and Regulations, as well as procedures to be followed by departmental officers. Much of the PIs are best described as an opinion on the interpretation of the legislation rather than strictly ‘policy’. The Tribunal has considered what is said in the PIs on r.2.03AA, which appears in the section ‘Regulation 2.03AA – Criteria applicable to character tests and security assessments’ found in the Character and security instructions. It states the intention of r.2.03AA is to ‘enable a visa application to be refused should the applicant fail to provide a statement about their criminal history (the statement)’ and it refers to providing ‘the statement from an appropriate authority (eg. a police force) about their criminal history’.[3] The PIs go on to state that ‘Under policy, that statement is a penal clearance or a military certificate (for more information on these, refer to the Penal Checking Handbook – PI (VM-1002)’ (the Handbook).[4]

    [3] POLICY - MIGRATION ACT - Character and security instructions - Regulation 2.03AA – Criteria applicable to character tests and security assessments - 3. Procedural Instruction - 3.1 Regulation 2.03AA and section 56 of the Migration Act.

    [4] POLICY - MIGRATION ACT- Character and security instructions - Regulation 2.03AA – Criteria applicable to character tests and security assessments - 3. Procedural Instruction - 3.2. Paragraph 2.03AA(2)(a) and PIC 4001 assessment: penal checking - 3.2.1. What are penal clearance and military certificates (emphasis added by the Tribunal).

15. Whether exercising a discretionary or non-discretionary power, policy is not binding on the Tribunal[5] and the Tribunal understands that it must approach departmental policy with caution, particularly where, as in this case, it appears to go beyond the legislation. In He v MIAC, the Court held that departmental policy like that in the PIs is ‘intended to provide advice about procedures. The advice appears to be directed to “officers” (in context presumably officers of the Minister’s Department). It is not directed to Tribunal members (see s 396 of the Act).’[6] The status of the PIs ‘is merely a set of administrative guidelines, and its contents cannot be elevated into legally relevant considerations or binding representations … Nor can its legal interpretations or restatements be applied by [the Tribunal] … as substitutes for the regulations, which must be construed according to their own language under principles of statutory interpretation.[7] Those guidelines are ‘simply a document which brings a number of relevant facts to the attention of the decision maker to which the decision maker may or may not have regard … It has no legislative effect. …. A decision maker is not bound to have regard to it or if a decision maker has regard to it the decision maker commits no error.[8]

    [5] See Qiao v MIAC [2008] FMCA 380 at [29] and Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732.

    [6] He v MIAC [2009] FMCA 1142 at [101]-[102] (emphasis added by the Tribunal).

    [7] Moller v MIAC [2007] FMCA 168 at [14] citing Vishnumolakala v Minister for Immigration & Anor [2006] FMCA 1209 at [27]-[29] and cases referred to therein.

    [8] Durzi v MIMIA [2006] FCA 1767 at [49].

16. In other words, the Tribunal is not entitled to abdicate its function to determine, on the material before it, the correct or preferable decision in favour of merely determining the matter consistent with relevant government policy.[9] Slavish adherence to interpretative guidelines that may be narrower than the legislative requirements will lead to a failure to constructively exercise its jurisdiction or asking the wrong question,[10] as would the inflexible application of an otherwise lawful policy.[11] As made clear by Brennan J in Re Drake and MIEA (No 2) ‘the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case’.[12] While it was ministerial policy in the context of the exercise of a discretionary power under consideration in that case, the principle is the same. When exercising its non-discretionary power, the Tribunal may consider departmental policy regarding the interpretation of a legislative provision, but it cannot treat the Department’s opinion as determinative.[13]

    [9] Drake v MIEA (1979) 24 ALR 577 at 589-591, although Drake was concerned with the application of ministerial level policy with regard to the exercise of a discretionary power while the PIs are departmental guidelines being considered in relation to a non-discretionary power.

    [10] Lobo v MIMIA [2003] FCAFC 168 at [63]-[64]; Jaravaza v MIAC [2013] FCCA 68.

    [11] See SZSKR v MIBP [2014] FCCA 2 at [46]-[48] where the Court held that a delegate applied the waiver policy in relation to the medical condition of close family members as a requirement and not as a guide thereby applying ‘the policy inflexibly without regard to the merits of the case and thus unlawfully circumscribed his discretion’ (at [48]). Although r.2.03AA involves the exercise of a non-discretionary power an inflexible application of policy could be equally problematic.

    [12] Re Drake and MIEA (No 2) (1979) 2 ALD 634 at 644.

    [13] Port of Brisbane Corporation v DCT (2004) 140 FCR 375 at 386; [2004] FCA 1232 per Moore J at [25]-[26]: it was wrong to suggest the construction of relevant legislation and its application to the facts should be influenced by departmental policy as it is no more than an expression of opinion about what the relevant legislation meant after it was enacted. His Honour pointed out that the Drake cases discussed policy in the exercise of discretionary power, and it would be an error of law for the Tribunal to state it must follow what policy says concerning the scope or meaning of a provision in the Act or Regulations.

17. The PIs clarify that a ‘penal clearance’ usually refers to a police certificate that is an official record of an applicant's criminal history, or lack thereof, and is also known as a ‘police certificate’ or a ‘police clearance’. It states that a penal clearance ‘should include: all names by which the visa applicant has ever been known; spent convictions (for more information on spent convictions, refer to spent convictions in Section 501: The character test, visa refusal and visa cancellation); and the issuing authority and date of issue.’[14] Under ‘3.2.4. When is a penal clearance required?’ the PIs state that ‘Under policy, an assessment against PIC 4001 comprises three elements, each of which must be completed by the delegate’ and element 2 is ‘2. undertake penal checking in accordance with in the [Handbook]’. The Department’s requirement that the Indian police check be from VFS Global and/or the Regional Passport Office appears to be policy but is not in the PIs themselves. From other references to the Handbook in the PIs, it appears to be the sort of policy set out in the Handbook, which the Department has restricted and so the Tribunal is unable to access.

    [14] POLICY - MIGRATION ACT- Character and security instructions - Regulation 2.03AA – Criteria applicable to character tests and security assessments - 3. Procedural Instruction - 3.2. Paragraph 2.03AA(2)(a) and PIC 4001 assessment: penal checking - 3.2.2. Penal clearances.

1. As noted above, when exercising a non-discretionary power, it is the duty of the decision-maker to apply the statutory test.[15] Therefore, while the Tribunal is not bound to consider the Department’s policy, having had regard to the PIs, it must be mindful to bring its consideration back to the actual terms of the legislation. This does not mean that the scope or meaning of legislation set out in the PIs cannot be used as a tool in construing r.2.03AA, but the Tribunal has not treated that guidance as determinative and has ultimately only had regard to the terms of the legislation and the individual circumstances of the case.[16] And just as a decision-maker should not consider an unlawful policy, the Tribunal would fall into error by considering an otherwise lawful policy in an inflexible way.[17] Since the Tribunal is not entirely clear on the exact policy applied in the Department’s decision not to accept the Indian PCC (since it cannot access the Handbook), it is not sure if that policy is unlawful or was merely inflexibly applied. But after having regard to the purpose of r.2.03AA and considering the information in the PIs it has come to the conclusion that the Department’s decision on that count was legally unsound. Where the policy is not consistent with, or does not accurately reflect r.2.03AA, that policy is unlawful and the regulation must prevail.[18] Alternatively, the inflexible application of otherwise lawful policy will also lead to error.[19] The Tribunal suspects that in Mrs Kaur’s matter the latter is the case.

   [15] See Su & Anor v MIMIA [2005] FCA 655 per Hely J at [10], [14] and [17] where the Court found that the Tribunal mechanically applied policy guidelines rather than the statutory test in relation to a factual question, which requires neither the consideration of ‘policy’ nor the exercise of a discretion, and thereby addressed the wrong question.

   [16] See Xue Fan v MIAC [2010] FMCA 490 at [22]. Although, the Court also noted that policy guidelines do not fall within the class of extrinsic material to which regard may be had to assist in interpreting the legislation in s.15AB of the Acts Interpretation Act 1901 (Cth). See also Jaravaza v MIAC [2013] FCCA 68 and SZSKR v MIBP [2013] FCCA 2.

   [17] SZSKR v MIBP [2014] FCCA 2 at [46]-[48]; cf. He v MIBP [2015] FCCA 2915 at [22] where the Court found that departmental policy went beyond the plain words of the Regulations and the Tribunal’s reasoning, while acknowledging the policy went further than the legislative requirements, was ‘an attempt to reconcile the words of the legislation with the policy’, a reconciliation that was impossible in that case and an error.

   [18] See Alimi v MIAC [2007] FMCA 1520, Total Eye Care Australia Pty Ltd v MIAC [2007] FMCA 281, Feng v MIAC [2011] FMCA 576 at [70]-[72], Jaravaza v MIAC [2013] FCCA 68.

   [19] SZSKR v MIBP [2014] FCCA 2 at [46]-[48].

2. According to its own policy, the Department’s ‘penal clearance’ would include a police certificate that is an official record of Mrs Kaur’s lack of any criminal history that can be referred to as a police clearance, like the Indian PCC. That penal clearance can be from a police force, like an Australian penal clearance is from the AFP. Per policy, the Indian PCC includes all the names by which Mrs Kaur has ever been known, the issuing authority, and date of issue (Mrs Kaur has no spent convictions or otherwise). While it appears from the Delegate’s refusal to consider the Indian PCC that it does not constitute ‘penal checking’ in accordance with the Handbook, the Tribunal cannot see anything either in the PIs or, more importantly, the regulation that prevents the Tarn Taran Senior Superintendent of Police from being ‘an appropriate authority’ in India or the Police Clearance Certificate issued by that Office from being a statement from an appropriate authority in the country. In fact, had Ms Kaur provided a penal clearance from VFS Global, according to the evidence from their officer, it would have been based on the same or a similar document and so the Indian PCC might be said, even in that case, to be the statement from the appropriate authority in India.

3. It is clear to the Tribunal that the Senior Superintendent of Police who issued the Indian PCC had access to a copy of Mrs Kaur’s passport which it is reasonable to conclude was taken to the Office by a person or persons who verified her identity. In her submission to the Department, she referred to her family in India arranging the police check. Given that there is no evidence of any credibility or character concerns regarding Mrs Kaur, the Tribunal accepts that the person for whom the police check was done is the applicant in this matter, Mrs Kaur. The information about a lack of a criminal history set out in the Indian PCC is in relation to her, and that information was obtained by the Office of the Senior Superintendent of Police in Tarn Taran which is the proper local police source, Tarn Taran being the Police District for her police station, Sarai Amanat Khan. There is no evidence before the Tribunal that Mrs Kaur has lived in any other part of India. The Tribunal finds that although the Indian PCC is from December 2020, it remains current and valid since Mrs Kaur has not returned to India since it was issued.

4. The Tribunal finds that the Indian PCC provided by Mrs Kaur to the Department is a penal clearance that meets the legislative requirements that it be a statement from an appropriate authority in India with evidence about whether or not Mrs Kaur has a criminal history. To the extent that the Department refused to accept the Indian PCC based on its policy, that policy is either unlawful or was applied in an improper, inflexible way. But regardless, the question of whether the Indian PCC is a relevant statement from an appropriate authority is one of fact for the Tribunal in the exercise of its non-discretionary power to make the correct decision, in its consideration of which policy may assist but cannot be determinative.

5. Mrs Kaur has provided a statement by an appropriate authority in India with evidence about whether or not she has a criminal history. She has also provided a statement by an appropriate authority in Australia with evidence about whether or not she has a criminal history. There is no evidence that she has resided in any other country. Therefore, Mrs Kaur meets r.2.03AA(2)(a). There is no evidence that the Department made a request for Mrs Kaur to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

6. On the basis of the above findings, Mrs Kaur meets r.2.03AA.

   decision

7. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 visa:

   ·Regulation 2.03AA.

   Mireya Hyland

   
   

   Member