Section 91W was incorporated into the Migration Act in 2001 and enhanced in 2015. The stated objective of this legislation is to assist the decision maker in establishing the applicant’s identity, nationality or citizenship. A decision maker must refuse an application where this requirement is not fulfilled. The Migration Amendment (Protection and Other Measures) Act 2015 came into effect on 18 April 2015. This allows a Minister or an officer to request that an applicant for a protection visa produce documentary evidence of their identity, nationality or citizenship for inspection. This request may be made either orally or in writing.
What does this mean for the applicant?
If the applicant:
- refuses or fails to comply with such a request or produces a bogus document in response to the request, and
- does not have a reasonable explanation for refusing or failing to comply with the request or for producing the bogus document, and
- the applicant was given a verbal or written warning at the time of the request that the protection visa could not be granted if the applicant refused or failed to comply with that request, or produced a bogus document in response to that request
then the Minister or an officer must refuse to grant the protection visa.
If the applicant
- has destroyed or disposed of documentary evidence of their identity, nationality or citizenship or has caused those documents to be destroyed or disposed of, and
- the applicant does not have a reasonable explanation for the destruction or disposal of the documentary evidence, and has either not provided documentary evidence of their identity, nationality or citizenship, or has not taken reasonable steps to provide such evidence
then the Minister or an officer must refuse to grant the protection visa.
What can the request include?
A s91W request may include examples of documents the applicant could provide. However s91W does not give decision makers the power to specify documents the applicant should provide. It is possible for an applicant to comply with s91W by providing evidence of their identity, nationality or citizenship even if they have not provided evidence that the decision maker may have expected. If this is the case then a s91W request should not be re-issued.
Decision makers should make clear to the applicant that the request relates to documentation sourced from their country of origin. However decision makers should consider whether requesting an applicant to seek a document from any country will give rise to sur place claims. Documentation obtained from Australian government authorities such as Immicards, Australian driver’s licences or Medicare cards are not acceptable.
Exceptions may apply for children born to an applicant after leaving their country of origin. In such cases relevant birth certificates or records for the child issued by Australian (or other) authorities should be accepted.
Decision makers may retain original documents provided at an interview for document examination purposes. However a request for an applicant to provide original documents by post or by other means might carry significant risk. This is because managing, storing and transferring originals may give rise to claims that an applicant’s original documents have been misplaced by the Department.
If a s91W request has been issued and the applicant has provided documents in response to that request then the decision maker needs to consider the documents provided carefully and assess whether the applicant has met the requirements of s91W.
Are there any exceptions?
Decision makers must carefully consider the exceptions (found in s91W(3)) and determine whether any of those exceptions apply to prevent the visa being refused.
These exceptions are:
- Having a reasonable explanation for refusing for failing to comply or for producing a bogus document and producing documentary evidence of nationality, identity or citizenship, or
- Having a reasonable explanation for refusing for failing to comply or for producing a bogus document and taking reasonable steps to produce such evidence
The Act does not define what amounts to a reasonable explanation. An assessment of ‘reasonable explanation’ or ‘reasonable steps’ should be objective and proportionate to all available relevant information. A ‘reasonable explanation’ or ‘reasonable steps’ should be generally credible and not run counter to known facts.
An assessment of whether the applicant’s explanation is reasonable depends on the individual’s circumstances. Decision makers should make a determination based on the merits of the individual’s case with reference to up-to-date country information.
A ‘reasonable explanation’ for the purposes of satisfying sections 91W and 91WA could include the following examples (Note: These are examples only and there may be other factors to take into account):
- statelessness (this is not a general exemption and decision makers should make an assessment according to individual merits)
- refusal by the government in the country of origin to issue identity documentation as a result of discrimination or persecution
- collapse of the government in the country of origin
- poor record-keeping in the country of origin
- the applicant living illegally in a country where they were not entitled to documents
- acts by a third party which involved destruction or removal of documents from the applicant’s possession
- shipwreck resulting in the loss of travel documents
- theft of belongings including travel documents
- an unaccompanied minor who presents a bogus document and claims it was given to them by their family
The following are examples which could be considered not to be a ‘reasonable explanation’ for the purposes of satisfying s91W and s91WA:
- deliberate destruction or disposal
- where country of origin information indicates that it is possible for the applicant to obtain documentary evidence of identity, nationality or citizenship.
Note: if the decision maker relies on ‘relevant information’ (as defined under s57(1)) to find that the explanation is unreasonable then this information will need to be put to the applicant for comment under s57.
The following are examples which could be considered to be ‘reasonable steps’ for the purposes of obtaining documentary evidence of their identity, nationality or citizenship:
- Contact with family and friends in their home country to obtain existing documents
- Contact with the relevant authority in their home country where the applicant is claiming harm from a non-State actor (e.g. an organised criminal group)
- Contact with the relevant authority in a safe third country where the applicant has resided in for a period of time
In determining whether an applicant has taken ‘reasonable steps’ the decision maker may, for example, consider:
- the authenticity of the evidence of contact provided
- country information – particularly where it suggests that obtaining the relevant document may take an extended period of time
- any potential detriment to the applicant or another individual that might be caused by attempting to produce evidence
- undue financial burden to the applicant or another individual arising from attempting to produce evidence.
Under no circumstances should an applicant be requested to approach the authorities of a country from which they claim to fear state persecution.