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Kaur (Migration)

Kaur (Migration)

Case [2022] AATA 4458 10 November 2022

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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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaur (Migration)

Details

AGLC: Kaur (Migration) [2022] AATA 4458
Case: [2022] AATA 4458
Decision Date: 10 November 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mrs Kaur for a Visitor (Class FA) visa, Subclass 600. The central issue was whether Mrs Kaur had provided a statement from a relevant authority in India evidencing her criminal history, as required by the migration regulations.

The Tribunal was required to determine if the documentation provided by Mrs Kaur, specifically a letter from VFS Global returning her incomplete application for a police clearance certificate, and subsequent attempts to obtain the certificate, satisfied the evidentiary requirements. This involved considering the impact of the COVID-19 pandemic on the processing of police clearances by the Indian Consulate and VFS Global in Melbourne, and the procedures for obtaining such a certificate from India.

The Tribunal reasoned that while Mrs Kaur had encountered significant difficulties in obtaining the required police clearance due to the closure of processing agencies and issues with online applications, these difficulties did not absolve her of the obligation to provide the necessary evidence. However, acknowledging the procedural hurdles and the efforts made by Mrs Kaur and her daughter-in-law, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that Mrs Kaur met the criteria under regulation 2.03AA for the Subclass 600 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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,’ 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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Citations

Kaur (Migration) [2022] AATA 4458

Cases Citing This Decision

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Cases Cited

He v Minister for Immigration & Anor [2015] FCCA 2915
Citation 1 (Para 1)

…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 polic…
SZSKR v Minister for Immigration [2014] FCCA 2
Citation 2 (Para 16)

…n 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 a…
Traill v Minister for Immigration [2013] FCCA 2
Citation 3 (Para 1)

…nterpreting 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…
Jaravaza v Minister for Immigration [2013] FCCA 68
Citation 4 (Para 16)

…rtmental 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 cl…
Feng v MIAC [2011] FMCA 576
Citation 5 (Para 1)

…hat 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].…
XUE FAN v Minister for Immigration [2010] FMCA 490
Citation 6 (Para 1)

…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 interpr…
He v Minister for Immigration [2009] FMCA 1142
Citation 7 (Para 15)

…ee 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]…
Qiao v MIAC [2008] FMCA 380
Citation 8 (Para 15)

…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] Moll…
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Citation 9 (Para 1)

…he 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…
Total Eye Care Australia Pty Ltd v MIAC [2007] FMCA 281
Citation 10 (Para 1)

…tion 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].…
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Citation 11 (Para 15)

…nt 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].…
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Citation 12 (Para 15)

…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].…
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Citation 13 (Para 15)

…hasis 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].…
Su v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 655
Citation 14 (Para 1)

…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 t…
Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232
Citation 15 (Para 16)

…ally 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 departmenta…
Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39
Citation 16 (Para 16)

…cy 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 PI…
Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732
Citation 17 (Para 15)

…aker 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…
[2003] FCAFC 168 [2003] FCAFC 168
Citation 18 (Para 16)

…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 poli…

Legislation Cited

Migration Act 1958 (Cth) 396, 65
3 mentions (from Para 1)
Migration Regulations 1994 (Cth)
1 mention (from Para 2)