Rahendra (Migration)

[2019] AATA 4330

Rahendra (Migration) [2019] AATA 4330 (6 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stanley Johannes Rahendra

CASE NUMBER:  1731508

HOME AFFAIRS REFERENCE(S): 195585899 BCC2015/3224534

MEMBER:Christine Kannis

DATE:6 July 2019

PLACE OF DECISION:  Perth

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

Statement made on 06 July 2019 at 2:01pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – police certificate not provided – reasonable to provide relevant statement from relevant authorities – failed to provide persuasive evidence of genuine attempt to obtain statement – lack of evidence to substantiate claims – character test – false information – criminal conviction – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 2.03AA, Schedule 2, cl 820.223, Public Interest Criterion 4001

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 November 2015 on the basis of his relationship with his sponsor, Mrs Sian Rahendra. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.223 (1)(a).  This requires, among other things, that the applicant satisfies Public Interest Criterion 4001 (PIC 4001). Where a person is required to satisfy PIC 4001 additional criteria prescribed under r.2.03AA must be met.

4. The applicant appeared before the Tribunal on 4 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Rahendra.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. PIC 4001 refers to a character test under the Act. Most visa subclasses provide that the Minister must be satisfied that the visa applicant meets the requirements of PIC 4001 as a criterion for the grant of the visa. An applicant will satisfy PIC 4001 if they pass the or the Minister has decided not to refuse to grant a visa under section 501 of the Act, despite the person not satisfying the character test.

7. Where a person 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. These criteria require an applicant to provide requested documentation or information relating to the applicant’s character and criminal history, and thus the criteria enables visa applications to be refused as a direct consequence of non-provision of the required documentation.

8. Specifically, regulation 2.03AA 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:

   (2) (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.

9. Under r.2.03AA (3), the Minister (or Tribunal) may waive the requirement to provide a statement from the appropriate authority (r.2.03AA (2)(a)) where satisfied that it is not reasonable for the applicant to do so.

   Has the applicant provided a statement from an appropriate authority?

10. The applicant is an Indonesian citizen. He first arrived in Australia on 2 July 2004. He has held several student and bridging visas since that time.

11. On 3 November 2015 the applicant applied for a Subclass 820 Partner Visa. As part of the assessment of the application the Department sent the applicant letters (by email) dated 1 February 2017, 2 March 2017, 5 April 2017, 10 May 2017, 2 August 2017 and 10 October 2017 requesting that he provide police certificates from each country where he had lived for a total of 12 months or more in the last 10 years as evidence that he satisfied the character requirements for the grant of the visa. In his application he stated that he had not lived in another country for more than 12 months cumulatively in the past 10 years. Despite this the Department requested the applicant to provide police certificates from Indonesia and from Australia.

12. On 3 May 2017 the applicant provided a National Police Certificate dated 29 March 2017 issued by the Australian Federal Police (AFP).

13. The applicant confirmed at hearing that he has not provided a police certificate from Indonesia as requested by the Department.

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

    Is it ‘not reasonable’ for the applicant to provide a police certificate from Indonesia?

15. In an email dated 31 March 2017 the applicant wrote:

    I have applied for a Police Clearance from Indonesia but am still waiting as I checked with the Indonesian embassy in Perth that I can’t do my Police Clearance here in Perth and need to send an email to [email protected] for the Police Clearance queries. I send the email and am still waiting for them to reply to direct me to my next step on getting the Police Clearance while not being able to leave Australia.

16. On 5 April 2017 the Department requested the applicant (by email) to provide specific information within 28 days including evidence that he had lodged his Indonesian Police Clearance.

17. On 3 May 2017 the applicant wrote:

    I have also sent another email towards the email address (scan provide below) in regards for me to obtain my Indonesian Police Clearance, but still NO reply from them yet. Made another visit to the embassy and they asked me to just wait until they reply. So, I am still waiting for them to reply before finding out what’s happening with me in obtaining my Indonesian Police Clearance (as I won’t be able to leave Australia while my visa is under process).

    ….. I will send you my Indonesian Police Clearance as soon as I get the reply from these people that the Indonesian embassy here in Perth asked me to contact.

18. On 10 May 2017 the Department requested the applicant (by email) to follow up his Indonesian Police Clearance urgently and advise within 7 calendar days of the progress he had made in obtaining it.

19. On 2 August 2017 the Department sent the applicant an email requesting he provide a police certificate from Indonesia. The email included the following advice:

    If you are unable to obtain an overseas police certificate it is in your best interest to demonstrate to us, with documentary evidence where possible, that you have made a genuine attempt to obtain the relevant certificate(s). If we are satisfied that you are unable to obtain an overseas police certificate(s) and have made a genuine attempt to do so then waiver of this requirement may be granted.

20. The applicant did not respond to the email dated 2 August 2017.

21. On 10 October 2017 the Department sent the applicant an email which attached a questionnaire for his completion. The questionnaire included questions about whether the applicant had a criminal record in Indonesia. A Statutory Declaration for completion by the applicant (if appropriate) was also attached. The Statutory Declaration included declarations that the declarant had not been convicted of a crime or any offence in any country. The email advised the applicant that he must respond within 28 days.

22. The applicant did not respond to the email dated 10 October 2017.

23. The applicant told the Tribunal that prior to sending the email on 31 March 2017 he attended the Indonesian Embassy in Perth to inquire about obtaining a police certificate from Indonesia. He was given an email address and was told the police certificate would be emailed to the Department. He was told this could take up to 18 months. The applicant said he attended the Indonesian Embassy again in October 2017 and was again provided with the same email address. He said he emailed again and has not yet received a reply.

24. Noting that more than two years have elapsed since he initially used the email address provided by the Indonesian Embassy, and noting he has not received a reply, the Tribunal asked him whether he has attempted to follow up his email enquiries since 2017. He said he has not and has just been waiting for a reply.

25. The Tribunal asked the applicant the reason he did not respond to the emails from the Department dated 10 May 2017, 2 August 2017 and 10 October 2017. He said he is not good with emails and believed he provided whatever the Department asked him to provide. The Tribunal referred to the questionnaire and Statutory Declaration for completion sent to him on 10 October 2017. He did not provide a reason for not completing and returning them but said he has not been convicted of any offences in Indonesia.

26. The applicant told the Tribunal that in 2017 he contacted his sister who lives in Indonesia and asked her about obtaining his police certificate. She said he had to return to Indonesia and obtain it himself. The applicant said prior to 2017 the Department had advised him that if he left Australia while his Partner visa was being processed he would not be permitted to re-enter. When the Tribunal asked the applicant whether he had made inquiries with the Department about travelling to Indonesia to obtain the police certificate, and/or applied for a Bridging B visa with travel rights, he replied that he had not because of the earlier advice he had received about re-entry.

27. When asked the reason he was seeking waiver of the requirement to provide a police certificate the applicant said he wants to stay in Australia with his partner and their two children. They have been together since August 2014 and were married on 20 October 2018 and have two children aged 6 and 18 months. The older child is not the applicant’s biological child but she is a member of their family unit. The applicant told the Tribunal that if he is required to depart Australia his partner and the children would not travel to Indonesia because there is nothing for them there.

28. Mrs Rahendra told the Tribunal that she hopes the applicant’s review goes well so that he can stay in Australia with her and the children.

29. Information before the Tribunal is that a Police Certificate known as a Surat Keterangan Catatan Kepolisian (SKCK) is issued by the Indonesian authorities.  Information about the process to obtain the statement from Indonesian authorities is as follows:

    Indonesian Citizens: Apply at the Local District Level Police Office (POLDA) or at the Police Central Headquarters (Mabes POLRI). Apply online through the POLRI SKCK website.
    Provide:

    • Indonesian ID Card, also known as a Kartu Tanda Penduduk (KTP). Or an Indonesian Driving license, also known as a Surat Izin Mengemudi (SIM).
    • Family Card, also known as a Kartu Keluarga (KK).
    • Birth Certificate, known as an Akta Kelahiran.
    • Colour passport photos.
    • Application form

    Further information about the process and relevant supporting documents can be found at: >

    Other information is provided from >

    The Tribunal provided details of the POLRI SKCK website to the applicant and allowed him additional time following the hearing to obtain the police statement. The Tribunal informed him that it required him to provide the police statement by 21 June 2019.

30. On 13 June 2019 the applicant provided a letter and a Statutory Declaration.  The letter said:

    ·On 12 June 2019 he visited the Indonesian Embassy to ask for the Indonesian Police clearance and they advised it was not necessary because it only covered five years and he had not been there for a while.

    ·The Indonesian Embassy suggested he contact the Indonesian Embassy in Canberra because they have a Police Attaché and might be able to provide more answers. He intended contacting the Embassy on that day and would contact the Tribunal once he heard back from them.

    ·The website provided by the Tribunal (POLRI SKCK) is no good because to obtain a SKCK he is required to be physically present when paying. He also does not have two of the requirements, a KTP and a KK because he left Indonesia in 2004.

31. The Statutory Declaration was made by the applicant on 12 June 2019. It was made before a person described as a Customer Service Officer. It was not clear whether this person was an authorised person however it was made at a Police Station and the Tribunal is prepared to accept that the Customer Service Officer is likely to be a State public servant. The applicant declared, among other things, that he had not been convicted of a crime or an offence in any country. The Tribunal noted the AFP National Police Certificate indicated the applicant was convicted of being the Owner/Driver of an Unlicensed Vehicle on 8 April 2008.

32. On 13 June 2019 the Tribunal sent the applicant a letter which advised as follows:

    You are requested to provide the following information:

    ·The Tribunal member requests that you provide written reasons as to why you cannot travel to Indonesia to obtain the necessary certificate.

    Please provide this information, in writing, by 21 June 2019.

33. On 21 June 2019 the applicant sent the following response:

    I'm writing to you to reply on the requirement you've asked of me on the 13th of June 2019, to provide reason. As to why I cannot travel to Indonesia to procure the asked police clearance certificate.

    To answer that, I will list few reasons as to why I haven't and why I also cannot apply for the necessary Indonesian police clearance.

    Reason number one falls on just simply us (my wife and I) not having the necessary fund for me to.

    1. Apply a travelling bridging visa.

    2. Buy return tickets from Perth - Indonesia - Perth.

    3. Accommodations and logistics (hotel, food, etc.) while applying for the police clearance.

    Another reason for me is by simply I'm not necessarily qualified to get the Indonesian police clearance.

    Here's few reasons why (or so I've been told by the Indonesian embassy in Perth)

    1. Police clearance only valid for the 5 years. And since I haven't been back to Indonesia since 2012 (7 years ago for about a week) I'm not qualified to get one.

    2. To apply for police clearance, I need several documents that ties me to a certain address in Indonesia with my name (title ownership, bills, bank accounts, etc) which I do not have.

    Some of those documents are what they called.

    • "KTP" - which translates to a citizenship ID card (NOT passport, like a driver's license but more like proof of age card Australia has) which I do not have and are not qualified to apply for as I do not have home address in Indonesia and do not have a "KK" (family card)

    • "KK" - which translates to a family card (where the uses of it if we try to find an equivalent in Australia, it will be the home sensuss card informations where the government need to find out who's on voting age, etc) which again I am unfortunately not qualified to apply for as to I do not belong to any house/suburb/town anywhere in Indonesia.

    So these whole reasons (and the Indonesian embassy staffs on the 12th of June 2019 - who I spoke with) tells me that I unfortunately am not qualified to procure the Indonesian police clearance.

    I have filled in several international statutory declaration papers/documents and had submitted them to you on the 12th of June 2019 I the hopes that it will be enough to replace the Indonesian police clearance that I cannot procure.

    I left Indonesia in 2004 and haven't been back there properly. At least not to stay and work there. For holiday, yes I've been back there. But not for anything else.

    I sincerely hope these reasons will be enough and I will be happy to provide any other things that may be required to support this application forward. But on the matter of the Indonesian police clearance, it is simply unattainable for myself as I'm not qualified to apply for the documents needed to apply for the actual police clearance.

34. What constitutes ‘not reasonable’ is a matter for the decision maker to determine having regard to any relevant circumstances.  The Explanatory Statement to the Regulation that introduced r.2.03AA provides one example, where the applicant’s country is affected by a civil conflict and it may not be reasonable to require the person to provide the statement.[1]  This is not a relevant example for the situation facing the applicant.

    [1] Explanatory Statement to SLI 2014 No.199  at p.19

35. The Tribunal accepts that the applicant may have had difficulty in obtaining the relevant statement from the authorities in Indonesia.  The Tribunal understands that there is a process to obtain the relevant statement from authorities in Indonesia however the applicant has not provided it, either to the Department or to the Tribunal.

36. The Tribunal noted that despite the email of 2 August 2017 advising the applicant that if he was unable to obtain an overseas police certificate he could demonstrate with documentary evidence where possible that he had made a genuine attempt to obtain the relevant certificate, he has not provided any documentary evidence whatsoever to substantiate that he has made a genuine attempt at any time.

37. The applicant has not provided any documentary evidence to substantiate the claims that he attempted to obtain the police statement by sending two emails in 2017 and by attending the Indonesian Embassy on 12 June 2019.  No documentary evidence has been provided to verify the advice the applicant said he was given at the Embassy on 12 June 2019 that he did not need an Indonesian Police clearance. The Tribunal considers it unlikely that he would have been so advised because it is the Australian government requesting the police statement.

38. The Tribunal has taken into account that the applicant failed to respond to the Department’s emails on 10 May 2017, 2 August 2017 and 10 October 2017. The Tribunal noted that despite the Tribunal pointing out the importance of obtaining the police statement and indicating that it required him to provide the statement by 21 June 2019 he waited for over a week to attend the Indonesian Embassy following the hearing.

39. Regarding the applicant’s claim that he is unable to provide the KTP and the KK, no documentary evidence has been provided to support the claim. The Tribunal considers it unlikely that there is no mechanism in place which would enable the applicant to obtain a statement.

40. The Tribunal noted that in his reply dated 13 June 2019 the applicant said he intended contacting the Embassy on that day and would contact the Tribunal once he heard back from them. The applicant has not provided any evidence in relation to whether this contact was made and if so, whether a response was received.

41. Regarding the applicant’s claim that he does not have the necessary funds to travel to Indonesia the Tribunal notes that in his most recent response he said he has returned to Indonesia for a holiday at some time. The Tribunal observes that low cost air fares to Indonesia are available and that it is likely that the applicant would not have accommodation costs because he could stay with family or friends. The Tribunal notes the applicant’s sister resides in Indonesia. The Tribunal considers it likely that only a brief stay would be required to obtain a statement or documentary evidence as to why he cannot obtain such a statement. The Tribunal does not accept that the applicant is unable to travel to Indonesia for financial reasons and the obtaining of the statement should be a priority if he wishes to remain in Australia. The Tribunal is not satisfied that the applicant’s claim that he does not have the funds to travel to Indonesia mean it is not reasonable for him to provide the requested statement from an approved authority.

1. The Tribunal has considered the applicant’s relationship and family circumstances however is not satisfied that the spousal relationship, in itself, is a reason to waive the requirement that the applicant provides a police statement from the appropriate authority in Indonesia. The Tribunal accepts that the applicant, his partner and the children may face emotional difficulties if separated. The Tribunal accepts that it is reasonable to expect a level of hardship to be experienced if partners are separated from one another or from family members for any extended period of time. This is a particularly common experience for a large number of applicants applying from offshore to migrate to Australia on the basis of their relationship with an Australian partner. While the Tribunal understands the difficulties that may be faced due to the family being separated because of the applicant going offshore to obtain the relevant statement, it is not satisfied that such difficulties mean it is not reasonable for the applicant to provide the requested statement from an approved authority.

2. The Tribunal is of the view that it is reasonable for the applicant to provide the relevant statement from the relevant authorities in Indonesia where he is an Indonesian national. The applicant was initially requested to provide a statement from Indonesia on 1 February 2017.  At hearing the Tribunal pointed out that more than two years had elapsed since the initial request was made. Two and half years have now elapsed since the initial request  and the history of this matter shows the applicant has failed to respond to several subsequent  requests including those on 10 May 2017, 2 August 2017 and 10 October 2017 . The Tribunal provided the applicant with additional time to provide the statement however he failed to provide the statement and failed to provide persuasive evidence that he had made a genuine attempt to obtain the statement. The Tribunal is not satisfied, on the basis of the applicant’s emails and testimony at hearing, that he has an immediate or short-term intention of providing the requested police statement. 

3. The Tribunal having considered the evidence individually and as a whole is not satisfied that the difficulties the applicant is experiencing in obtaining the relevant statement from the authorities in Indonesia make it not reasonable for the applicant to provide the statement. Accordingly the waiver in r.2.03AA (3) does not apply.

4. As the statement has not been provided the applicant does not meet r.2.03AA (2)(a) for the purposes of cl.820.223 (1)(a) of Schedule 2 to the Regulations.

5. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Christine Kannis
   Member