2110613 (Migration)

[2021] AATA 4486

2110613 (Migration) [2021] AATA 4486 (27 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2110613

MEMBER:James Silva

DATE:27 October 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 27 October 2021 at 1:24pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – no interview by authorised officer – refusal of protection visa affirmed on review – no ongoing immigration matters and subject to departure – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 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

CONSIDERATION OF CLAIMS AND EVIDENCE

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 29 July 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 30 July 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(2), (3) or (4); and an authorised officer had not determined that an interview was unnecessary, cl.050.222(5). The applicant submitted a copy of the decision record to the Tribunal.

4. The applicant appeared before the Tribunal on 27 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant is not represented in this matter.

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.

8. On 19 October 2021, the Tribunal wrote to the applicant to explain the issues to be discussed at hearing, taking into account that he is unrepresented. At hearing, the applicant said that he had not opened the email, as he had just obtained a new mobile telephone and did not have much data. He appeared to have a very limited understanding of migration processes, and the bridging visa that he had applied for.

   The exceptions

9. 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, the applicant applied for merits review of a protection visa application, which was finalised on 9 December 2020, and he had no ongoing immigration matters as of 30 July 2021.

   §  Clause 050.222(3) applies in certain circumstances when an authorised officer was unavailable to interview the applicant. The delegate merely noted that they had considered cl.050.222(3), without details. On the available evidence, the Tribunal is satisfied that an authorised officer was indeed available, and that cl.050.222(3) does not apply.

   §  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.

10. 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

11. The delegate’s decision record[1] states that an interview was necessary, and that it did not occur. The applicant commented at hearing that he lives a long way away (implicitly, from the Department office). The Tribunal advised its understanding that the interview could take place by telephone.[2] In response, the applicant stated that he did not have a telephone at that time.

    [1] As noted above, the applicant provided a copy of this with his application for review.

    [2] The Department file contains a copy of a notice sent to the applicant advising that they had a telephone interview scheduled for 30 July 2021 at 9:15 am. The Tribunal infers from this that an authorised officer attempted to call the applicant. (The Tribunal did not put this information to the applicant under s.359A or s.359AA, as the only relevant fact is that the in method of interview is not part of the reason for affirming the decision under review. The only relevant fact is that the interview did not take place.)

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 30 July 2021.

    Interview by an authorised officer during the course of the review

13. The Tribunal noted in its letter and at hearing the Department’s recent advice that it does not conduct interviews for the purpose of cl.050.222 during the course of Tribunal proceedings. On 28 July 2021, it wrote that ‘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 did not comment on this, or express interest in pursuing it further.

14. The Tribunal finds that, irrespective of whether the Department’s position that there is no basis for such an interview is or is not correct, there is no prospect of an authorised officer conducting a cl.050.222 interview in respect of this application.

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

    Other matters

    Primary criteria

16. In the decision under review, the delegate observed that the applicant must satisfy one of the grounds set out in cl.050.212, by meeting one of the alternatives set out in cl.050.212(2)-(9). They noted that the applicant had identified as the relevant ground ‘merits review at the Administrative Appeals Tribunal, or revocation of a visa cancellation’, but went on to state that the applicant ‘has no ongoing immigration matters in Australia and is subject to departure’. The delegate did not address the alternative grounds in cl.050.212 in detail, and did not base the visa refusal on this ground. The Tribunal alerted the applicant in general terms that, in any future Bridging E visa application, he would need to meet one of these grounds.

    The applicant’s personal circumstances

17. At hearing, the applicant was upset, saying that both of his parents had died in July 2021; that he could not return to Malaysia, as he has no one there; and that he desperately needs permission to stay in Australia with work rights and access to Medicare. He said that he is currently [doing specified job], for cash-in-hand, and cannot afford basic medical and dental treatment. The Tribunal explained that the scope of this review was limited to his eligibility for a Bridging E visa, but undertook to note these concerns. It recommended that the applicant contact the Department to discuss his migration status and options, and seek legal or migration advice.

    Conclusion

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

19. 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

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

    James Silva

    
    

    Member