By: Raj Natarajan
Many travellers to India, from Sydney in particular and NSW in general, might have alreadynoticed that the supporting documents to the visa application made to VFS, Sydney office for visa to India or OCI card or any other consular services are now required to be ‘Notarised’ which means the supporting documents have to be attested by a ‘Public Notary’. A public notary in Australia is a public officer that must be a practicing solicitor or lawyer – appointed for life by a State or Territory Supreme Court. This officer is given statutory powers to witness documents, administer oaths, and perform a range of other administrative functions both of a national and international nature.
This obviously attracts additional costs and is applicable for residents of NSW only and residents of other states are not required to carry this burden. This new requirement, at the outset, seems illogical and unfair. Therefore, I had the opportunity to talk to Consul in charge at the office of Indian Consulate General in Sydney.
Before we go to the response from theIndian Consulate General in Sydney, let’s understand the background to VFS an organization to which Indian Government has outsourced the consular services. VFS Global, also known as “Visa Facilitation Services Global,” is an outsourcing and technology services company that serves governments and diplomatic missions worldwide. The company manages visa and passport issuance-related administrative and non-discretionary tasks for its client governments. The company began as a “side project” at a luxury Swiss travel group Kuoni in 2001 by chief executive Zubin Karkaria.
Formerly based in India, the company is now headquartered in Dubai with offices in 147 countries. Last year, VFS processed more than 25 million visa applications, often containing passport details and financial histories, on behalf of the Governments in that country.
The outsourcing company is owned by a private equity fund and, as VF Worldwide Holdings, is incorporated in the African tax haven of Mauritius. Investors in the outsourcing company include the Chinese and Abu Dhabi investment authorities, the Ohio Police and Fire Pension Fund, and yogurt billionaire Theo Müller. It has been criticized for allegedly exploitative practices and for its lack of transparency.
Coming back to the question of this new requirement for supporting documents to the visa applications to be Notarised, I contacted Mr. S.C. Salimath, Vice Consul (Consular Services) in the Sydney office of the Consulate General of India to get some clarifications on this matter. His response is summarised below in the form of question and answer:
Raj: What prompted Sydney office of Consulate General of India to announce this new requirement for the supporting documents to the applications for visa to India which are now required to be Notarised?
Salimath: This is not a requirement by the Indian Government but we are complying with the legal advice received by the NSW Government.
Raj: Why now? Have the requirements changed recently or whether this has always been a requirement but the Indian Consulate office was unaware of this?
Salimath: There has always been a continuous update of information and advice by the NSW state government and this requirement was notified to Indian Consulate, Sydney in February 2020 but we had to wait to take this decision only after formal legal advice is received from the NSW Government which happened recently.
Raj: What if I go in person to submit the application?
Salimath: No only when you send documents by post this requirement applies but if you are submitting in person, there is no need for supporting documents to be Notarised.
Raj: Are all supporting documents to the Visa/OCI applications be Notarised?
Salimath: No the copies of passports can be self attested but documents like “Oaths”, “Affidavits” and “Power of Attorney” have to be Notarised.
Raj: What was wrong with old procedure of the Justice of Peace (JP) attesting the documents?
Salimath: A JP should not attest any legal documents which have legal implications and many JPs don’t seem to know this. Therefore the procedure followed earlier was flawed. Therefore in some ways this new procedure requiring the legal documents to be Notarised has corrected the existing flawed situation.
Raj: Doesn’t it surprise you that in Australia’s different states have different legal requirements?
Salimath: No, it does not surprise me because it happens in many countries with similar State/Federal structure like USA where the legal requirements are different from state to state and Indian Consulate offices have to comply with the laws of that state. Therefore, I must reiterate that this change is not a requirement of the Indian Government but it is a requirement of the NSW Government.
After I heard the answers by Mr. Salimath, I think it is necessary for Indian Consulate office in Sydney to comply with the directions of the NSW Government’s legal advice. However, possibility of challenging this by the Indian Consulate can be established, probably, after seeking expert legal advice on this matter. There may be an argument to seek concession to this legal requirement of NSW Government in order to ensure uniformity of the VFS visa application requirements across all states and territories of Australia which sounds logical to me.
Meanwhile, FIAN President, Sydney cardiologist Dr Yadu Singh, has written to the Consul General and High Commissioner, urging them to review this decision. Federation of Indian Associations of NSW (FIAN) is leading the campaign to get this newly created issue resolved. He has also asked Consul General, Mr Manish Gupta, to consult the community including JPs to appreciate all dimensions of this matter. He said, “The changed rule applies only to the residents of NSW and residents of other states are allowed to have a JP certify and witness documents for the purpose of services from the Consulate and VFS.”
Dr Singh further said, “This is an unnecessary decision, because the new rule from CGI Sydney will cause extra financial burden and inconvenience to NSW residents. A JP is available even on the weekends and often after hours, but a Notary Public is generally available only during the weekdays and during office hours. JPs do not charge fees while a Notary Public charges quite a fees of approx $100 per document, which could be a huge sum if multiple documents from multiple family members need certifying or witnessing.”
Dr
Singh goes on to add, “The new rule from CGI is discriminatory and unfair.
FIAN believes that any rule from GOI agencies in Australia should be uniform
for all Australian states and urges CGI in Sydney and High Commission of India
in Canberra to look into this matter urgently and reverse the rule.” He
believes that CGI Sydney should seek a legal opinion to make sure their new
rule is not breaching the concept of fairness and non-discrimination.
Sharing his stance over this matter, Councillor Moninder Singh advised,
“CGI Office should consult to other Indian government jurisdictions in
Australia and have same policy to avoid any confusion.”
The JP factsheet updated by the NSW government answers pertinent questions as follows:
What interstate documents can NSW JPs witness?
NSW JPs are authorised under NSW law to take statutory declarations and affidavits for use in relation to other States and Territories and the Commonwealth.
JPs can also certify copies of documents from other States, Territories and the Commonwealth.
Following changes to the Oaths Act 1900 made by the NSW Government, NSW JPs are authorised to witness the execution of other interstate documents, such as land titles documents from another State or Territory, where this is also permitted by the law of the other state of territory.
Can NSW JPs witness documents for use overseas?
NSW JPs are not authorised under NSW law to witness the execution of documents for use overseas, including “proof of life” forms for the purposes of claiming overseas pensions. NSW JPs can certify copies of original documents from overseas.
What prevents NSW JPs from witnessing documents from overseas?
NSW JPs can only perform a task in their capacity as a JP if that function is conferred by a NSW Act or Regulation. If a NSW JP performs any other task, they are not doing so in their capacity as a NSW JP. There have been no recent changes to the functions of NSW JPs with regard to witnessing the execution of documents for use overseas.
What if overseas governments will accept other documents I have witnessed?
Overseas government agencies may advise that a NSW JP can witness the execution of their document. However, in the absence of any authority under NSW law, any NSW JP who witnesses an overseas document does not do so in their capacity as a NSW JP.
Who can witness overseas documents?
In Australia, public notaries are able to witness signatures on overseas documents. Public notaries are appointed by the Supreme Court and must:
- Be a solicitor or barrister with at least five years’ standing;
- Have completed the prescribed Notarial Practice Course, which includes the implications of witnessing, certifying and authorising foreign legal documents;
- Have applied through the Legal Profession Admission Board.
Public notaries are held to the same standard of conduct as other Australian legal practitioners, have additional conduct requirements applicable to the office of public notary, and must have indemnity insurance to protect clients’ interests.
Is there anyone else that can witness ‘Proof of Life’ documents?
The International Services Branch of Centrelink provides assistance to people seeking to claim a pension from a number of countries which Australia has reciprocal aged pension agreements with. JPs can refer people who ask them to witness proof of life documents to the International Services Branch phone line on 131 673 or website at:
Changes to Indian Visa applications to VFS causing concerns to Indian Australians added by Indian newspaper Sydney on
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