Mir (Migration)

[2018] AATA 4936

Mir (Migration) [2018] AATA 4936 (19 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Seyed Muhamad Walee Mir

VISA APPLICANTS:  Mr Sayed Nematullah Sadat
Mrs Naila Sadat
Miss Hanaya Sadat
Miss Hadya Sadat
Mr Said Esanullah Sadat

CASE NUMBER:  1705482

DIBP REFERENCE(S):  OSF2010/028222

MEMBER:David Barker

DATE:19 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 116 visa:

·Regulation 2.03AA(2)

Statement made on 19 October 2018 at 2:10pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – character and security assessment – police clearance certificates not in an acceptable format – efforts taken to obtain documentation from appropriate authorities – plausible explanation as to why documentation cannot be submitted – r2.03AA requirements waivered – decision under review remitted for reconsideration

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA Schedule 2 cl 116.223 Schedule 4 PIC 4001, 4002

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 applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 19 January 2011. The criteria for an Other Family (Migrant) (Class BO) 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. 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.116.223 of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The visa applicants are therefore required to satisfy the criterion in r.2.03AA(2).

4. Regulation 2.03AA(2)(a) requires that, if requested, the visa applicants have 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 visa applicants to provide the statement: r.2.03AA(3). The Tribunal cannot waive the requirement for the visa applicants to provide a completed Form 80.

5. The delegate refused to grant the visas on 14 March 2017 on the basis that the visa applicants did not meet r.2.03AA because the first named visa applicant (the visa applicant) had failed to provide police certificates from Iran and Uzbekistan.

6. The review applicant appeared before the Tribunal on 27 April 2018 and 13 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s mother.  Due to technical difficulties in relation to communicating with the visa applicant by telephone, the Tribunal provided him with the opportunity following the hearing to provide responses to questions posed by the Tribunal and any other matters he wished the Tribunal to be aware of. A written statement, with translation, from the visa applicant was subsequently received by the Tribunal on 3 July 2018.  The Tribunal was assisted by an interpreter of the Dari and English languages. 

7. The review applicant was represented in relation to the review by his registered migration agent.

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

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

   Background

10. The visa applicant is a national of Afghanistan and is 53 years old. The second named visa applicant is his wife, aged 45 and the third, fourth and fifth named visa applicants are their children, respectively aged 15, 25 and 24.

11. The Department delegate’s decision record, a copy of which was provided with the review application, provides the following information:

    ·     the delegate wrote to the visa applicant’s migration agent on 19 July 2016 requesting information, including:  

    - Uzbekistan police checks obtained in accordance with the information available under and

    -Iran police checks obtained in accordance with the information available under

    ·     The visa applicant provided documents purporting to serve as the Uzbekistan police checks on 5 September 2016. The documents have been referred to the Department’s office overseeing Uzbekistan, on 6 September 2016, who then advised the delegate, on 13 September 2016 that the documents provided as confirmation of no criminal record in Uzbekistan could not be accepted;

    ·     The Department advised the visa applicant that the clearance provided cannot be accepted, by way of an email to the appointed migration agent and the review applicant sent on 19 September 2016.  The delegate provided guidelines on how to obtain the required and acceptable police checks, or how to make sure that the documents provided thus far can be accepted as Uzbekistan police checks.  The delegate also requested that all correspondence between the visa applicant, the Afghanistan Embassy in Uzbekistan and all other institutions be provided to the Department;

    ·     On 10 October 2016, the review applicant informed the delegate, by way of an email that the visa applicant and his wife had lodged an application for an Iranian police check with the Iran Embassy in Kabul, Afghanistan. The review applicant advised that the visa applicant lodged the application in Kabul because the Iranian Embassy in Tashkent, Uzbekistan refused to accept it;

    ·     On 7 December 2016, the migration agent sent an email to the delegate with documents he claimed were evidence demonstrating an Iran police check request, which consisted of completed fingerprint cards for the visa applicant and his wife;

    ·     On 14 December 2016, the migration agent advised the delegate, by way of an email, that the documents provided by the visa applicants which were to serve as Uzbekistan police clearances were all that the clients could provide with respect to the requested clearance from the Uzbekistan authorities ;

    ·     On 30 January 2017, the delegate received an email from Mr Stephen Kerr, from the Multicultural Disability Advocacy Association, in which he attached an unsigned statement by the visa applicant regarding a request for the Uzbekistan police checks from the Embassy of Uzbekistan in Jakarta, Indonesia;

    ·     On 20 February 2017, the delegate emailed the migration agent and provided information as to how the clients could provide their Uzbekistan police checks.  This email advised the agent that the Department gave the visa applicant a further 14 days to provide the results of the checks as requested and that if the requested information was not provided, the visa applications would need to be considered for refusal under r.2.03AA;

    ·     No further documents or submissions were provided to the delegate prior to their decision on 14 March 2017.

12. On 18 December 2017, the Tribunal received documents from the review applicant, consisting of a medical certificate pertaining to his mother, a medical report regarding the review applicant which outlined his disabilities and care needs, and a letter from the Multicultural Disability Association of NSW.

13. On 26 March 2018, the Tribunal wrote to the review applicant’s current representative inviting him to provide, by 20 April 2018, evidence as to the police checks or specific steps taken to apply for the police checks with the appropriate authorities for both Iran and Uzbekistan.  This letter indicated that the evidence should include copies of all correspondence between the visa applicant and any persons acting as his representative and the institutions from whom the police checks have been sought.

14. On 20 April 2018, the Tribunal received documents from the applicant including a statutory declaration, dated 20 April 2018, from the review applicant’s mother and copies of letters issued by the Embassy of the Republic of Uzbekistan in the Republic of Singapore on 5 April 2017, detailing the results of criminal record checks pertaining to Mr Sadat S. Nematullah, Ms Naila Sadat, Ms Hadya Sadat and Mrs Esanullah Sadat.

15. The statutory declaration from the review applicant’s mother provided the following information:

    1.I am the biological mother of Seyed Mohamad Walee Mir. He is my son and he is the person who needs care.

    2.Mr Sayed Nematullah Sadat, the applicant is the paternal biological uncle of my son, Seyed Mohammad Walee Mir and the DNA evidence confirmed that relationship between them.

    3.In relation to this application, I understand that this application was refused as the Police clearance was delayed.

    4.At that time when the Department requested the applicant to provide Police clearances from Uzbekistan and Iran, the letter of request was sent to our migration agent and he forwarded it to my email. We applied for the Uzbekistan and Iran Police clearance accordingly.

    5.For Uzbekistan Police we applied in Uzbekistan. The authorities in Uzbekistan confirmed that all persons in the visa application had no criminal history. But it was not acceptable for the Australian immigration. They told us that the clearance was not in the acceptable format. The advised us to apply through the Uzbekistan Embassy in Indonesia. They provided us with the relevant address and we had sent all application to that address by an Express International Post with option of providing delivery confirmation. But the post was return back to us. The address was wrong address. I still have that envelop that was returned. We did it few times from here and also from Uzbekistan but no results. I eventually called Uzbekistan embassy in Indonesia and they advised me to do it through their embassy in Singapore. They provided me with relevant address of Uzbekistan embassy in Singapore. We sent all application to that address in Singapore and paid US$450 fees to their bank account. And this way we eventually received relevant Police clearances but it was too late and at that stage the application was refused and we already applied for review to the AAT. Scan copies of Police clearances are attached.

    6.I tried to keep the immigration updated but when I got very ill I have not ability to do that. I was very ill at that time and went through complicated surgical operations in North Shore Hospital in March 2017. After that I was not able to open my email or check my email and was not able to do anything to be helpful in the situation. I call our migration agent and he was in India at the time. I informed his secretary in his office but I believe all this was lost through communication and not on time forwarded to immigration. I am also aware that the applicant Mr Sadat contacted Australian Embassy in Germany to inform them and provide information as the migration agent was in India and not available.

    7.Further obtaining Police clearances we were subject to the conduct and action of the third party being Uzbekistan authorities and we had no control of the matter.

    8.In relation to the Police clearance from Iran, I am aware that the visa applicant applied through Iran embassy in Uzbekistan but their application was denied as the applicants were not residing in Iran. They told the visa applicant that they should be in Iran to obtain Police clearance from Iran. This was communicated to the immigration through our migration agent. I believe at that time it was more than ten year passed consequently the immigration only requested clearance from Uzbekistan.

    9.What I said above I have all the relevant email to prove it and they are all true to the best of my knowledge and memory.

16. The initial hearing on 27 April 2018 was adjourned due to difficulties with the interpreting that was available at that time. At the resumed hearing on 13 June 2018, notwithstanding the availability of an interpreter who was able to assist the review applicant and his mother provide their oral evidence to the Tribunal, the quality of the telephone connection to the visa applicant in Uzbekistan was poor and prevented him from participating meaningfully in the hearing. As a consequence the Tribunal gave the visa applicant time following the hearing to provide a written statement containing information he would like the Tribunal to consider before a decision was made in this matter.

17. The review applicant suffers from a congenital condition which severely restricts his physical functioning, including his ability to communicate verbally.  This condition does not impair the review applicant’s cognitive capacity and he was able to communicate with the Tribunal, to a limited extent, with the assistance of an electronic communication device.

18. On 30 April 2018, the Tribunal received copies of untranslated Government of the Islamic Republic of Afghanistan standard fingerprint cards and photographs.

19. At the hearing, on 13 June 2018, the review applicant provided the Tribunal with documents including:

    ·a completed questionnaire for requesting documents from the Republic of Uzbekistan, issued by the Embassy of the Republic of Uzbekistan in Singapore;

    ·copies of undated letters to the Embassy of the Republic of Uzbekistan in Indonesia from the visa applicants;

    ·copies of invoices showing payments made to the Embassy of the Republic of Uzbekistan;

    ·copies of emails regarding request for police clearance certificates from the Republic of Uzbekistan;

    ·duplicate copies of untranslated Government of the Islamic Republic of Afghanistan standard fingerprint cards and photographs;

    ·copies of emails between the Department and the visa applicant.

20. The Tribunal gave the review applicant until 27 June 2018, to provide further documentary evidence and submissions, including any written statement from the visa applicant, for the Tribunal to consider before a decision is made in this matter.

21. The statement from the visa applicant, which the Tribunal received on 3 July 2018, stated:

    I, Sayad Nematullah Sadat, born in January 1964 and currently resident with my family in Tashkent, Uzbekistan. In relation to my under-process care visa application for Australia, the Australian Immigration office has asked for a police clearance certificate from Iran. When we contacted the Iranian Embassy in Uzbekistan for this purpose, they told us that as we are not permanent residents of Uzbekistan, we had to apply for an Iranian police clearance certificate at the Iranian Embassy in Afghanistan.  We contacted the Iranian Embassy in Kabul.  The Iranian Embassy in Kabul told us that we had to provide our fingerprints record and clearance documents issued by the Ministry of Interior Affairs. Following this, our documents were officially admitted to the Interpol by the Ministry of Foreign Affairs along with two photographs and a copy of the passport, but we have not received a response as yet.  In this regard, we contacted them over the phone, and they told us that as per Iranian law, we had to personally present in Iran so that a clearance document could be prepared.  Owing to the fact that we have not lived in Iran for many years they could not issue us with any clearance documents.

    The hearing

    Evidence from the review applicant

22. The review applicant told the Tribunal that the Australian immigration authorities gave them incorrect details regarding where they should chase up the police checks for the visa applicants. He said his mother could explain what happened.  In response to a question from the Tribunal as to when the visa applicants had resided in Iran and Uzbekistan, the visa applicant said that as far as he knows the visa applicants moved from Iran to Uzbekistan in 2007.  He said they have lived in Uzbekistan since 2007.

23. The review applicant confirmed the Department had in July 2016 requested police clearance certificates from Iran and from Uzbekistan.  He said the visa applicants had by October 2016 lived in Uzbekistan for 10 years.  He said because of this they did not at first ask for the police checks from Iran.  He said they tried to get the police checks from Iran when it became apparent they needed them but were not successful.

    Evidence from the visa applicant’s mother, Mrs Fouzia Mir

24. Mrs Mir told the Tribunal that they had applied for the Uzbekistan police certificates on seven occasions. She said when they received the request for the visa applicants to do medical exams they sent this request through to the Uzbekistan Embassy in Jakarta, Indonesia but received no response. They were then told to apply through the embassy in Afghanistan, but then told the request would not be accepted, as all their names were together on the request form and they needed to apply individually rather than as a group. She said that they then applied again in the requested manner but the request form was again not accepted. 

25. Mrs Mir said she then tried to send the Uzbekistan police clearance certificate request forms to the Uzbekistan embassy in Jakarta by registered post, but the registered post envelope was returned. She then made inquiries over the phone and discovered that the Uzbekistan embassy in Jakarta was no longer processing the police clearance certificate requests and that she should apply for the certificates from the Uzbekistan Embassy in Singapore.  She said that they did this and sometime later received the clearance certificates from the Uzbekistan authorities.

26. In relation to the steps taken to get police clearance for the visa applicants from the Iranian authorities, Mrs Mir said the clearance certificates were requested from the Iranian Embassy in Uzbekistan.  She said the visa applicants were told they had to return to Afghanistan to request the clearance certificates from the Iranian Embassy there.  Mrs Mir said the visa applicants were asked by the Australian immigration authorities to undertake medical examinations in Uzbekistan, but there was no place for them to do that, so they did the required medical examinations in Afghanistan and also provided the Iranian Embassy with their fingerprints. She said it was their understanding that the fingerprints and photographs of the visa applicant and his wife were sent to Interpol by the Iranian authorities.

27. Mrs Mir gave evidence that in or around August 2017 she found a retired Iranian police officer who is now resident in Australia, who was a friend of a friend.  She said this person made informal inquiries on her behalf and ascertained that the visa applicants had to go in person to Iran to apply for the police clearance certificates.

28. Mrs Mir provided the Tribunal the copy of the last email she received from the Department in February 2017, which discussed the police clearance certificates from the Uzbekistan.  She said that there is no reference to a request to provide police clearance certificates from Iran in this email.  She said that she took this to mean the original request for police certificates from Iran was no longer necessary. She said that when they were liaising with the Australian Embassy in Germany, the Australian authorities did not enquire about the police certificates from Iran and this was the reason they had focused on getting the police clearance certificates from the Uzbekistan, where the visa applicants have now lived for over 10 years.

29. The Tribunal asked Mrs Mir if there was any evidence documenting the visa applicants attempt to get the Iranian police clearance certificates from the Iranian Embassy in Afghanistan. In response to this question Mrs Mir said that apart from the fingerprint cards, there is no other evidence to show what steps were taken by the visa applicants to get the police clearance certificates from Iran.

1. The Tribunal asked Mrs Mir if there is any evidence, other than that provided by the retired Iranian police officer, documenting that the visa applicants can only get police clearance certificates from Iran by going to that country and presenting in person the relevant authorities from whom they would request the certificates.  In response to this question Mrs Mir said there was no evidence that she was aware of.

   Oral submissions from the representative

2. The representative submitted that it is always difficult getting police clearance certificates from Iran and the people need to go there in person to request the certificates.  He said that even if someone appears in person, it is very difficult for a refugee to get that certificate if they are not a registered refugee. 

3. The representative said Mrs Mir is a well-respected person in her local community and she and the visa applicants have made every endeavour to get the police certificates that the Australian immigration authorities have requested.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in this review is whether the visa applicant meets Public Interest Criterion (PIC) 4001 for the purposes of cl.116.223 of Schedule 2 to the Regulations. PIC 4001, as it applies to this case, is extracted in the attachment to this decision.

5. PIC 4001 requires s.65 delegates to assess a person against the terms of the ‘character test’. Under policy, a component of assessing a person against PIC 4001 for temporary or permanent migration is the provision of a police clearance certificate for each country in which that person has lived for 12 months or more, over the last 10 years, since turning 16 years of age.

6. The applicant is required to satisfy PIC 4001 for the grant of a visa. Additional criteria are prescribed under r.2.03AA that must be met for the grant of visa. Regulation 2.03AA is extracted in the attachment to this decision.

7. Regulation 2.03AA(2) requires that where the Minister has requested certain documents or information, the person has provided the documents or information. The documents or information that can be requested are as follows:

   (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; and

   (b)a completed approved form 80.

8. The term ‘appropriate authority’ is not defined in the Act or Regulations, although a note to r.2.03AA(2) refers to ‘a police force’ as an example of such an authority. While the police force in a particular country may often be the relevant authority for the purposes of r.2.03AA, the question of what constitutes an ‘appropriate authority’ from any particular country will be one for the decision maker to determine on the available evidence. Having regard to the purpose of the provision, this may include a person or body authorised to so issue a statement of criminal history under the law of that particular country.

   Has the applicant provided a statement from an appropriate authority?

9. In this matter, the Department, on 19 July 2016, requested the visa applicants provide police checks from both Uzbekistan and Iran, as the visa application made it apparent the visa applicants had resided in Iran from 2003 to 2007 and in Uzbekistan since 2007. 

10. The Tribunal has reviewed the letters issued by the Embassy of the Republic of Uzbekistan in the Republic of Singapore on 5 April 2017, detailing the results of criminal record checks pertaining to Mr Sadat S. Nematullah, Ms Naila Sadat, Ms Hadya Sadat and Mrs Esanullah Sadat, which were received by the Tribunal on 20 April 2018.  The Tribunal is satisfied that in relation to the request to provide a statement from an appropriate authority in Uzbekistan that provides evidence about whether or not the visa applicants have a criminal history, the visa applicants have now provided the requested statement.  The Tribunal notes that aforementioned letters indicate no criminal records were identified in relation to the visa applicants.

11. However, in relation to the request to provide a statement from an appropriate authority in Iran, the Tribunal finds the visa applicants have not provided the requested statements.

12. The Tribunal has considered the contention that the visa applicant was not required to provide the requested police clearance certificates from an appropriate Iranian authority, due to the length of time since the visa applicants had resided in Iran, and the lack of reference to the requested statement in emails and other interactions with the Department.  The Tribunal is not persuaded that interactions with the Department, by email or otherwise, which focussed on the process whereby the police clearance certificates where sought from the Uzbekistan authorities and which may have not made mention of the need to also provide a statement from an appropriate Iranian authority, establish no such document from the Iranian authorities was required.

13. The delegate’s decision record indicates interactions regarding the request for the police clearance certificates from an appropriate Iranian authority occurred between the Department and the visa applicant, or their migration agent, or Mrs Mir in October 2016 and December 2016.  There is no indication that in these interactions the visa applicants were advised by the Department that police clearance certificates from an appropriate Iranian authority was no longer required.

14. In order to meet the criteria in r.2.03AA an  applicant needs to provide police clearances and criminal histories from countries where they reside, or have previously resided, where the Minister, or in this instance a delegate of the Minister, has requested this information. Subject to the waiver provisions discussed below, a failure to provide the evidence requested under r.2.03AA means the visa applicants have failed to satisfy a criterion for the visa. The Tribunal does not have the discretion to find that an applicant meets r.2.03AA if there has been a failure to provide a statement requested in accordance with this regulation.  The issue of how much time has elapsed since the visa applicants resided in Iran is not the determinative issue, provided they had resided there at some time in the ten year period before the delegate requested they provide the police clearance certificate from an appropriate authority in Iran.

15. Therefore having considered the evidence before it, the Tribunal is not satisfied that the visa applicants meet r.2.03AA(1) and (2).

    Is it not reasonable for the applicant to provide the requested statement from an appropriate Authority in Iran?

16. The visa applicant has not provided a statement from an appropriate authority in Iran and therefore does not meet r.2.03AA(2)(a). Under r.2.03AA(3), the Tribunal may waive the requirement to provide a statement from the appropriate authority where satisfied that it is not reasonable for the applicant to do so.

17. Information available to the Tribunal indicates that a person who is not an Iranian citizen, and who is not resident in Iran, is able to apply for a police certificate through their nearest Iranian embassy and thus is not required to travel to Iran to do this.[1] However, there is inconsistent information regarding the documents that an applicant for an Iranian police certificate is required to provide with their application. According to an undated item on the website of Australia’s Department of Home Affairs, non-residents are required to provide two photographs, an ID card issued by the General Department of Civil Status and Census registration, and their personal details and fingerprints.[2] Other items have been located which refer to non-Iranian citizens having to provide their original ‘National Card’, Shenasnameh (birth certificate) and Iranian passport.[3] However, the National Identity Card is only issued to permanent residents of Iran over the age of 15,[4] and the Shenasnameh and Iranian passports are only issued to Iranian citizens.[5]

    [1] 'Iran', Department of Home Affairs, n.d. (Accessed 7 September 2018), CIS7B839419360; 'Iran - Reciprocity Schedule', US Department of State: Bureau of Consular Affairs, n.d. (Accessed 7 September 2018), CIS7B839419361; ​'How to obtain a police certificate - Iran'​, New Zealand Immigration, 5 April 2018, CIS7B839419359; 'How to Get a Police Certificate – Iran'​, Government of Canada, 5 May 2015, CISEC96CF110330

    [2] 'Iran', Department of Home Affairs, n.d. (Accessed 7 September 2018), CIS7B839419360

    [3] 'How to obtain a police certificate - Iran'​, New Zealand Immigration, 5 April 2018, CIS7B839419359; ​'How to Get a Police Certificate – Iran'​, Government of Canada, 5 May 2015, CISEC96CF110330

    [4] 'DFAT Country Information Report Iran', Department of Foreign Affairs and Trade (DFAT), 7 June 2018, Section 5.29, p.50, CIS7B839411226

    [5] 'DFAT Country Information Report Iran', Department of Foreign Affairs and Trade (DFAT), 7 June 2018, Sections 5.27 and 5.31, pp.49-50; 'DFAT Country Information Report Iran', Department of Foreign Affairs and Trade (DFAT), 21 April 2016, Section 5.46, p.30, CIS38A8012677; 'Iran: On Conversion to Christianity, Issues concerning Kurds and Post-2009 Election Protestors as well as Legal Issues and Exit Procedures', Danish Refugee Council, Landinfo and Danish Immigration Service, February 2013, p.70, CIS25114

18. An undated item on the website of Australia’s Department of Home Affairs, accessed on 7 September 2018, provides the following information stating that a non-resident of Iran would be able to apply for an Iranian police certificate via the Iranian embassy in their country of residence, and indicating the documentation and fees that would be required for the application:

    Non-residents: Apply to the Iranian embassy in your country of residence (the embassy will forward the request to the Iranian Ministry of Foreign Affairs, or to Interpol who will forward the request to Interpol Tehran). The Police Certificate will be in English script.

    Provide:

    • two photographs

    • ID card issued by the General Department of Civil Status and Census registration, and

    • personal details and fingerprints for Interpol.

    Fee: 35,000/ – Rls.[6]

    [6] 'Iran', Department of Home Affairs, n.d. (Accessed 7 September 2018), CIS7B839419360

19. An April 2018 item published on the New Zealand Immigration website provides information on how to obtain a police certificate from Iran that is aimed at non-Iranian citizens residing outside Iran. This item stated that such a person would be able to ‘apply at your nearest Iranian embassy’ for an Iranian police certificate.[7] The item also provided a list of documents that the applicant would need to provide:

    —your original National Card

    —your birth certificate (Red Booklet – Shenasnameh)

    —two colour photographs (3x4 cm) with plain white background

    —a letter of introduction from an Iranian embassy.[8]

    [7] ​'How to obtain a police certificate - Iran'​, New Zealand Immigration, 5 April 2018, CIS7B839419359

    [8] 'How to obtain a police certificate - Iran'​, New Zealand Immigration, 5 April 2018, CIS7B839419359

20. The information available to the Tribunal makes it apparent that the aforementioned Department of Home Affairs item indicated that the documents listed above are documents that a resident of Iran would be expected to provide when applying for a police certificate from inside Iran.[9]  The Tribunal is aware that the Shenasnameh is a document issued to Iranian citizens.[10] Iranian National Identity Cards are held by every permanent resident of Iran over the age of 15, including non-citizens.[11]

    [9] 'Iran', Department of Home Affairs, n.d. (Accessed 7 September 2018), CIS7B839419360

    [10] 'DFAT Country Information Report Iran', Department of Foreign Affairs and Trade (DFAT), 7 June 2018, Section 5.27, p.49, CIS7B839411226

    [11] 'DFAT Country Information Report Iran', Department of Foreign Affairs and Trade (DFAT), 7 June 2018, Section 5.29, p.50, CIS7B839411226

21. A May 2015 article published by the Government of Canada also provides information on how a person who is not an Iranian citizen, and who is living outside Iran, can obtain an Iranian police certificate. The following information was provided:

    If you are not a citizen of Iran:

    If you live in Iran:

    Non-Iranian residents in Iran and people living in Iran as refugees must present either your Iranian residency card or an Iranian Laisser Passer to one of the Alien Bureau Offices, which will then provide a letter of introduction which applicants should present at a POLICE+10 centre.

    If you live outside of Iran:

    You may apply at your nearest Iranian embassy.[12]

    [12] ​'How to Get a Police Certificate – Iran'​, Government of Canada, 5 May 2015, CISEC96CF110330

    Information and documents you need:

    • Your original National Card

    • Your birth certificate (Red Booklet – Shenasnameh)

    • Two colour photographs (3x4 cm) with plain white background

    • Your Iranian passport with a copy of the first page of the passport if available (otherwise, a letter of introduction from the embassy is required)

    • Applicable fees[13]

    [13] ​'How to Get a Police Certificate – Iran'​, Government of Canada, 5 May 2015, CISEC96CF110330

22. The Tribunal notes that Iranian passports, which are referred to in the list above, are only issued to Iranian citizens. An undated item from the US Department of State’s Bureau of Consular Affairs, accessed on 7 September 2018, also provides the following information regarding Iranian police / penal certificates which indicates that these can be obtained via Iranian embassies and consulates. The relevant information read:

    Police Records

    Available but unreliable. Police certificates are issued by the General Department of Penal Records and Pardon Amnesty (Idar-e Kul Sajl-e Kifari va Afva Bakhshudagi). However, police records are not required for immigrant visa applicants because posts cannot verify them. Clean record certificates can be obtained in Iran or from Iranian Embassies and Consulates and the physical appearance of the certificate changes significantly depending on which authority issued it.[14]

    [14] 'Iran - Reciprocity Schedule', US Department of State: Bureau of Consular Affairs, n.d. (Accessed 7 September 2018), CIS7B839419361

23. In summary, the claims of the visa applicant, Mrs Mir and the representative in this matter are as follows:

    a)The visa applicants were focussed upon getting the police clearance certificates from Uzbekistan and they did not seek the requested statements from the Iranian authorities until they realised this was important.

    b)They subsequently made two unsuccessful attempts to acquire police clearance certificates from two different Iranian embassies in Uzbekistan and Afghanistan.

    c)They ceased their endeavours to get the requested statements from the Iranian authorities in light of a misunderstanding of an email from the Australian embassy in Berlin and because the Iranian embassy in Kabul advised that they would need to go to Iran in person and that owing to the fact that the visa applicants had not lived in Iran for many years the Iranian embassy in Kabul could not issue them with clearance documents that would permit them to travel to Iran.

    d)there may be further difficulty getting the requested statements from an appropriate authority in Iran as the applicants are not registered refugees.

24. The Tribunal has considered these claims. Whilst there is no evidence to demonstrate the visa applicants were advised by the Department that they were not required to get police clearance certificates from an appropriate authority in Iran, the cumulative evidence provides support for their claim as to why they became very focussed upon gaining the requested statements from the Uzbekistan authorities.  The Tribunal accepts this claim.

25. The visa applicant claims he initially sought the requested statements through the Iranian Embassy in Uzbekistan, but was told us that as they were not permanent residents of Uzbekistan they were required to apply for the certificates at the Iranian Embassy in Afghanistan.  In support of this claim the visa applicant states he contacted the Iranian Embassy in Kabul, who advised him to provide fingerprint records and clearance documents issued by the Ministry of Interior Affairs. The visa applicant claims he provided the requested documents, which he understands were then officially passed on to Interpol by the Ministry of Foreign Affairs along with two photographs and a copy of his and his wife’s passport. The currently available evidence includes copies of untranslated Government of the Islamic Republic of Afghanistan standard fingerprint cards and photographs of the visa applicant and his wife. Further to this, the applicant claims that he did not subsequently hear further about his application for the police clearance certificates and on contacting the Kabul embassy again, by telephone, was advised he would need to travel to Iran in person in order to apply for and be issued the clearance certificates. 

26. In light of the cumulative evidence and information available to the Tribunal accepts the visa applicant’s claim in relation to his endeavours to get assistance, with respect to police clearance certificates, from Iranian embassies in both Uzbekistan and Afghanistan.  The Tribunal is also satisfied that there is a significant degree of ambiguity in relation to the documents required  for a non-citizen of Iran, who is not resident in that country to apply for a clearance certificate from an appropriate authority in Iran. Whilst advice is available from the Department of Home Affairs as to how to seek such a police clearance certificate, I am not satisfied that all the required documentation is reasonably accessible to a person who is not a citizen or permanent resident in Iran.  For these reasons I am satisfied the visa applicant has provided a plausible explanation for why he has met with no success to date in his endeavour to get the requested statement from an approved authority Iranian and why at the time of his last contact with the Iranian embassy in Kabul, he was told he would have to be physically present in Iran to apply for the aforementioned clearance certificates.

27. The Tribunal next considered whether it is not reasonable for the applicant to travel to Iran to seek the requested statement from an approved authority in Iran. There is no evidence before the Tribunal that establishes the visa applicant has made any such endeavour.  The visa applicant claims he was told by the Iranian embassy in Kabul that he would not be given permission to travel to Iran due to the length of time since he has resided in Iran.  Information available to the Tribunal indicates that it is possible for Afghan nationals to apply for work visas to enter and work in Iran.[15] In respect to this issue, the Tribunal finds the visa applicants have not made specific endeavours to travel to Iran to apply, in person, for the required police clearance certificates and has placed some weight on this finding.

    [15] 'Afghans Line Up for Iranian Visas in Herat', Tolo News, 6 February 2018, CXBB8A1DA21346

28. The Tribunal has considered the claim that it would in any event be very difficult for the visa applicant’s, given their particular circumstances to acquire police clearance certificates from the Iranian authorities, as they are no registered refuges. The Department of Foreign Affairs and Trade (DFAT) provided information in April 2002 which indicated that an Afghan in Iran who did not register themselves during a registration process held in May 2001 would be unable to obtain a penal certificate.  A December 2001 DFAT report also indicated that, while it was theoretically possible for an Afghan who had subsequently travelled to Australia to obtain a police certificate from Iran, fingerprints would be required and the processing timeline would be open-ended. It was also stated that Iranian officials could be capricious with regard to what procedure they might apply at any given time.  No more recent information on this subject is available to the Tribunal and in particular, no information which deals specifically to the situation for Afghan nationals who resided in Iran between 2003 and 2007.

1. The Department of Foreign Affairs and Trade (DFAT) provided information in April 2002 which indicated that an Afghan in Iran who did not register themselves during a registration process held in May 2001 would be unable to obtain an Iranian penal certificate. The relevant information read:

   Iranian law enforcement authorities have informed us that only people considered by Iran's Ministry of interior (MOI) to be legally in Iran, or who are legal residents of Iran with the right of return to Iran, are able to obtain penal certificates and exit permits.

   Afghans and Iraqis who failed to register in the May 2001 registration of non-nationals process, are now considered to be ''illegally'' in Iran. Many Iraqi/Afghan nationals can no longer legitimately obtain penal certificates from Iranian law enforcement authorities to support visa applications for Australia.[16]

   [16] 'Local Penal Checks and Exit Permits', Department of Foreign Affairs and Trade (DFAT), 23 April 2002, CX64140

2. The April 2002 DFAT report provided the following information about the procedures that had then been recently introduced regarding issuing penal certificates to non-Iranian nationals:

   General Hossain Abadi the head of the Iranian law enforcement body within MOI responsible for penal checking processing. We were informed that non-Iranian citizens living in Iran will no longer be issued with penal certificates unless they registered themselves during the compulsory registration process that took place in May 2001 for non-Iranian nationals.

   Each person/family who registered would hold an official receipt of their registration the General said only those who can produce that evidence will have requests for penal certificates processed.

   The general also confirmed that any identity documentation issued/held by Iraqi/Afghans before the May 2001 registration process will not be recognised by the Iranian government for identity purposes and are not considered to confer any right of legal residence in Iran. Such identity documentation includes the various ''Green Cards'', ''Blue Cards'' and ''White Cards'' etc. that have been around for the past ten years or so.[17]

   [17] 'Local Penal Checks and Exit Permits', Department of Foreign Affairs and Trade (DFAT), 23 April 2002, CX64140

3. In the same report, DFAT provided the following comment on these procedures:

   The above approach by the ministry of interior in respect to penal checking has been consistently and rigidly enforced for much of this calendar year. Those who failed to register themselves in May 2001 are now facing significant difficulty in meeting our demand for penal clearances as Iranian authorities refuse to accept applications for processing.

   UNHCR Tehran recognise the difficulty the current approach to penal checking is causing, not only for our clients but other resettlement receiving countries operating in Iran. They have made representations to relevant Iranian authorities on behalf of the ''non-registered'' Iraqi/Afghan community, but have had no indication the Iranian authorities are prepared to change their current approach.[18]

   [18] 'Local Penal Checks and Exit Permits', Department of Foreign Affairs and Trade (DFAT), 23 April 2002, CX64140

4. A December 2001 DFAT report also provided information regarding the possibility of a refugee from Afghanistan, who had subsequently travelled to Australia, being able to obtain a penal certificate from Iran:

   Around 2.6 million Afghans and Iraqis registered with BAFIA [Bureau for Aliens and Foreign Immigrants Affairs][19] in June/July this year.  While unlikely, there is a possibility that some unauthorised arrivals in Australia from August/September onwards may have records that theoretically, BAFIA could check if asked. Fingerprints would be required, and the processing time-line open ended.

   Dealing with Iranian officials is on the whole fraught with hurdles.  What is accepted procedure on one day can be replaced arbitrarily by another the next day with a return to the previous procedure the next.

   With the above in mind it is difficult to be more precise when trying to identify a consistent and transparent penal certificate application process in Iran.[20]

   [19] 'Watchdog Claims Iran Recruiting Afghan Children To Fight In Syria', Tolo News, 2 October 2017, CXC90406614756

   [20] 'Iranian police clearances', Department of Foreign Affairs and Trade (DFAT), 27 December 2001, CX61202

5. With regard to the claim that the visa applicants would have difficulty getting the required police clearance certificates from an appropriate authority in Iran, even if physically present in that country, the Tribunal is satisfied the available evidence supports this claim.  There is no indication the visa applicants are registered refugees, or that they would otherwise meet the requirements of the Iranian authorities for the issue of the aforementioned requested statement.

6. After considering all of the available evidence and information that is currently available, and whilst placing some weight on the applicant’s apparent lack of actual travel to Iran to seek the requested clearance certificates, the Tribunal 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).

7. There is no evidence that the delegate made a request for the applicants to provide a completed approved Form 80, therefore the requirement in r.2.03AA(2)(b) does not apply.

8. As the second, third, fourth and fifth named visa applicants applied on the basis of being members of the family unit of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant's application on remittal to the Department for reconsideration.

   DECISION

9. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 116 visa:

   ·Regulation 2.03AA(2).

   David Barker
   Member

   
   

   ATTACHMENT

   116.223

   The applicant:

   (a)     satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4012A, 4013,  4014 and 4020; and

   (b)      if the applicant had turned 18 at the time of application, satisfies public interest criterion 4019; and

   .

   PUBLIC INTEREST CRITERIA 4001

   Either:

   (a)     the person satisfies the Minister that the person passes the character test; or

   (b)     the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or

   (c)     the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or

   (d)     the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

   REGULATION 2.03AA     Criteria applicable to character tests and security assessments

   (1) In addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

   (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;

   (b)  a completed approved form 80.

   (3)  The Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the applicant to provide the statement.