2107540 (Migration)

[2021] AATA 3288

2107540 (Migration) [2021] AATA 3288 (18 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107540

MEMBER:James Silva

DATE:18 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 18 August 2021 at 5:31pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant had not been interviewed by an authorised officer – applicant was not subject to the exceptions – an authorised officer attempted to contact the applicant – attempts failed – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 73, 359A
Migration Regulations 1994, Schedule 2, cls 051.211, 050.212, 050.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

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 Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 May 2021. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, the primary criteria include cl 050.222.

3. The decision to refuse to grant the visa was made on 26 May 2021 on the basis that the applicant did not meet cl.050.222, as he had not been interviewed by an authorised officer and was not subject to the exceptions set out in cl.050.222.

4. The applicant appeared before the Tribunal on 17 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirement to be interviewed by an authorised officer: cl.050.222. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause.

   The exceptions

8. Clause 050.222 provides for certain circumstances in which an interview by an authorised officer is not required.

   §  Clause 050.222(2) applies where the applicant is not in immigration detention, holds a Bridging E visa, has made a valid application for a substantive visa, and will not be seeking a further Bridging visa E visa with different conditions. As noted in the delegate’s decision record, on 7 May 2021, the applicant was not the holder of a Bridging E visa.

   §  Clause 050.222(3) applies in certain circumstances when an authorised officer was unavailable to interview the applicant. However, as noted in the delegate’s decision record, an authorised office was available to interview the applicant in this matter.

   §  Clause 050.222(4) applies or the applicant meets cl 050.212(4AAA), as a person who has an ongoing judicial or merits review application pending in relation to a citizenship decision, or who continues to meet cl 050.212(4AB), as a person who is a member of the immediate family of a person to whom cl.050.212(4AAA) applies, or as a brother or sister of a person to whom cl.050.212(4AAA) applies, and has not yet turned 18.

9. The applicant has not claimed, and there is nothing to suggest, that he falls within any of the exceptions.

   The conduct of an interview by an authorised officer

10. The delegate’s decision record[1] states that an authorised officer attempted to contact the applicant on 14, 18 and 20 May 2021, by telephone and email, to conduct an interview in accordance with cl.050.222. These attempts failed, and as a result, there was no interview by an authorised officer.

    [1] The applicant provided a copy of this with his application for review.

11. The Tribunal referred to this information in a pre-hearing letter under s.359A[2], and discussed it at hearing.

    §  At hearing, the applicant did not dispute the contents of the letter or suggest that an authorised officer had in fact conducted an interview with him.

    -   In more general comments, he said that a cousin had helped him with the review application and correspondence. He thought that the Department had refused this bridging visa application because he had already been granted successive bridging visas. He appeared to have a limited understanding of migration processes, and to rely on other persons to help him with communications with the Department. This became apparent during the course of the hearing, when he asked whether - in relation to any future bridging visa application - he could provide the telephone number of another person for the authorised officer to contact for an interview (implying that he faced language or other barriers to receiving such calls directly).

    §  In the written comments/response that the Tribunal received after the hearing, the applicant stated that he has no recollection of any calls from an authorised officer on the relevant dates in May. He wrote that he did receive a call on 23 July 2021. He provided a Melbourne telephone number, but no further details. The telephone number and Tribunal records suggest that this was a call from a Tribunal officer in Melbourne on 23 June (not July) 2021 to discuss a procedural matter. In any event, there is no suggestion that an authorised officer conducted an interview for the purpose of cl.050.222 in this or any other telephone call.

    -   The applicant also wrote that, as he is illiterate, a Fijian friend acted as his authorised recipient, adding that this person sometimes did not pass on urgent information to him in a timely manner. (The Tribunal notes that the applicant did not nominate an authorised recipient or representative in relation to this matter.) The applicant went on to set out some reasons why he does not wish to return to Fiji; these are not relevant to the decision under review.

    [2] The s.359A letter put to the applicant adverse information from the Department to the effect that an authorised officer would not conduct an interview during the course of this review, and invited his written comments/response in writing by 17 August 2021 (that is, the day of the hearing itself). The letter included contextual information, such as the dates on which the delegate attempted to reach the applicant (but did not present this as adverse information that fell within the scope of s.359A). There was discussion of the letter at hearing. The applicant said that he did not wish to provide further written comments/response, although later in the day, the Tribunal received a written reply with comments/response. The Tribunal has taken these into account in this decision.

12. The Tribunal is satisfied, and finds, that an authorised officer did not conduct an interview for the purpose of cl.050.222, as of the date of the delegate’s decision on 26 May 2021.

    Interview by an authorised officer during the course of the review

13. The Tribunal explored with the Department whether there was scope for an authorised officer to conduct an interview with the applicant for the purpose of cl.050.222 during the course of this review, i,e, by the time of the Tribunal’s decision. On 28 July 2021, the Department replied as follows:

    The interview requirement in 050.222 relates to the particular BVE application on foot and needs to be undertaken with respect to that application (where no exemption applies) prior to a decision being made. [The applicant] does not currently have a valid BVE application before the Department for decision and there is no basis for an officer to conduct an interview with him 'for the purpose of 050.222'. As such, the Department will not be conducting an interview in this matter.

14. The Tribunal finds, in light of this advice, that there is no prospect of an authorised officer conducting an interview for the purpose of cl.050.222 in respect of this application. This is the case, regardless of whether the Department’s position that there is no basis for an authorised officer to conduct such an interview is correct.

15. As noted above, the applicant did not address this information substantively in his reply to the s.359A letter or at hearing.

16. The Tribunal finds that the applicant does not meet cl 050.222.

    Conclusion

17. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

18. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl 051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    James Silva

    
    

    Member