2117602 (Migration)

[2022] AATA 1066

2117602 (Migration) [2022] AATA 1066 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2117602

MEMBER:Nathan Goetz

DATE:7 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 07 April 2022 at 2:09pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – interviewed by an authorised officer – eligible non-citizen – protection claims – requirement to be interviewed – age requirements – member of the family unit – decision under review affirmed           

LEGISLATION

Australian Citizenship Act 2007
Migration Act 1958, ss 73, 116, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 2 050.212, 050.222, 051.211; r 2.20

CASES

Singh v MICMSMA [2019] FCCA 2343

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

   CRITERIA FOR THE VISA

   The requirement to be interviewed by an authorised officer - cl 050.222

2. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause.

3. The exceptions are either: 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; or, the applicant is not in immigration detention, does not hold (but previously held) a Bridging E visa, has made a valid application for a substantive visa and the authorised interview officer was not available at specific times; or the applicant meets cl 050.212(4AAA) or continues to meet cl 050.212(4AB); or, for visa applications made on or after 1 July 2021, an officer authorised for the purposes of the clause has decided it is not necessary to interview the applicant.

4. The applicant is required to meet this clause at the time a decision is made.

   The requirement to be an eligible non-citizen – cl 051.211

5. Clause 051.211 requires that the applicant must be an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11).

6. The applicant is required to meet this clause both at the time of application and at the time a decision is made.

   BACKGROUND

7. The applicant identifies as 56-year-old male citizen of Malaysia currently located in Australia.

8. On 15 November 2021 the applicant applied for the bridging visa that is the subject of this decision record. At the time he applied for the bridging visa, Class WE contained two subclasses: Subclasses 050 and 051.

9. On 23 November 2021 the delegate refused to grant the bridging visa on the basis that the applicant did not satisfy either cl 050.222 or cl 051.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

10. On 25 November 2021 the applicant applied to the Tribunal to review the refusal decision.

11. On 23 March 2022 the Tribunal wrote to the applicant under s 360(1) of the Act and invited him to appear at a Tribunal hearing on 20 April 2022 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal was unable to make a favourable decision to the applicant on the material it had.

12. On 23 March 2022 the Tribunal wrote to the applicant under s 359(2) of the Act and noted to the applicant that his visa had been cancelled by the delegate on the basis that he did not comply with s 116(1)(b) of the Act and requested information to demonstrate that the applicant did comply with that section of the Act. Clearly, the issuing of that letter was in error, because that was not the basis upon which the delegate made a decision with respect to the applicant’s bridging visa. Realising this error, the Tribunal issued another s 359(2) of the Act noting that the delegate had refused to grant the applicant the bridging visa on the basis that the applicant did not satisfy cl 050.222 and cl 051.211. The Tribunal requested information from the applicant that demonstrated he satisfied cl 050.222 and 051.211 and provided the applicant with the relevant clauses for his reference.

13. The request for information was accompanied with a warning that if the applicant did not provide the Tribunal with the information requested by a specified date, the applicant would lose the right to appear at a Tribunal hearing and the Tribunal would make a decision on the review application without taking any steps to allow or enable the applicant to appear at a Tribunal hearing: ss 360(2)(b), 360(3), 363A of the Act.

14. On 31 March 2022 the Tribunal received a letter from the applicant. It was attached to the 359(2) letter that asked for information to demonstrate that the applicant met cl 050.222 and cl 051.211. The letter is reproduced below with minor amendments for spelling and grammar:

15. “I am [name]. I’m writing this letter because I don’t have any witness letters for my case. I also don’t have any witnesses in my case. When I came to Australia, I didn’t bring anything with me. I ran away from my country because I do not feel safe then or now. I am really scared going back to Malaysia. The Malaysian Government has changed many times, but I am still scared to return to Malaysia. I do not feel that my life and mental health is safe. I don’t know how to tell or write how I feel. I am scared to return to Malaysia.

16. I have stayed in Australia a while and I really feel safe because it is peaceful and safe. I feel happy in my life. I also feel healthy. I think I never want to return to Malaysia. I am appealing for you to give me a visa to stay lawfully in Australia.”

17. The letter purported to be a response to the s 359(2) request by the Tribunal for information, but it is clear that the applicant has not provided information to demonstrate that he satisfied cl 050.222 or cl 051.211.

18. In Singh v MICMSMA [2019] FCCA 2343 the Federal Circuit Court held that if an applicant’s response to a s 359(2) invitation did not constitute giving of the information that had been requested then no error arose from the Tribunal deciding the review without inviting the applicant to a hearing.

19. The applicant has not provided the information requested. Accordingly, he does not have an entitlement to appear at a Tribunal hearing: ss 360(2)(b), 360(3), 363A. Accordingly, the Tribunal cancelled the Tribunal hearing and has determined the review application on the material it has without taking any further steps to allow or enable the applicant to appear at a Tribunal hearing.

20. The bridging visa application form completed by the applicant declared that he had a Malaysian passport issued [in] 2015 with an expiration date [in] 2021. The applicant identified that he was ‘an applicant for a substantive visa.’

21. He claimed to be ‘awaiting a decision from the Department or the Tribunal on an application for a substantive visa. He also indicated that he had requested the exercise of the Minister’s powers to intervene to substitute a more favourable decision for a decision of the Administrative Appeals Tribunal.

22. The applicant declared that he had not commenced judicial review proceedings (that is, court proceedings) in relation to a decision to refuse or cancel a substantive visa but indicated that he was a party to other proceedings concerning his immigration status.

23. He did not claim to be a member of the same family unit of a person who has commenced judicial review proceedings in relation to a decision to refuse a substantive visa.

24. The applicant declared that he did not hold a visa that had been cancelled, but then also claimed that he had applied for revocation or review of a decision in relation to the cancellation of a visa. He did not claim that told hold a visa that was cancelled because of the cancellation of a visa held by another person.

25. He declared that he was not making arrangements or the subject of arrangements to depart Australia.

26. In the ‘additional information’ section of the form, the applicant wrote that he could he had gotten a letter from the Malaysian Embassy which advised that he could not renew his passport because he holds a protection visa. The applicant also applied for a bridging visa which expired on 30 November 2021. The applicant wrote that he did not want to return to Malaysia and asked for his visa to be renewed for a long time because he wished to stay in Australia. He feels safe and at peace in Australia with no stress and has a happy life. He is employed. He does not know what he can tell anyone but really wants to remain in Australia.

27. The applicant attached a letter from the Consul for Immigration on behalf of the [Consulate General of Malaysia]. That letter advised that applicants would need to comply with requirements before making a booking for renewal of a passport, with one of the requirements being that an applicant for a Malaysian passport does not hold a protection visa or hold a protection visa connected with a protection visa application.

28. The delegate decision record details that attempts were made by the Department to contact the applicant on numerous occasions via phone and email to arrange an interview and that those attempts were unsuccessful, apart from the last call which was answered by the applicant before going silent and the call being terminated. A failure by the applicant to continue the interview necessarily means that the applicant has not been interviewed, as it is reasonable to expect that the requirement that the applicant ‘has been interviewed’ be read to mean that the interview has been completed by the authorised officer having exhausted the questions the authorised officer wished to ask.

    FINDINGS AND REASONS

29. The issue in this case is whether the applicant meets cl 050.222 or cl 051.211.

30. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    The requirement to be interviewed by an authorised officer - cl 050.222

31. There is no evidence that the applicant has been interviewed by an authorised officer. The Tribunal wrote to the applicant and asked for information to demonstrate that he met cl 050.222. The applicant may have argued that he had been interviewed or was not required to be interviewed. The applicant provided no information to suggest that he was not interviewed, nor did he provide information to suggest that he was not required to be interviewed because he satisfied one of the exceptions to the interview requirements.

32. As there is no evidence that the applicant has been interviewed by an authorised officer, the Tribunal has proceeded to consider whether the applicant was required to be interviewed.

33. The applicant does not satisfy cl 050.222(2) to enliven the exception to the interview requirement because there is no evidence that the applicant holds a Bridging E (Class WE) visa as required by cl 050.222(2)(c).

34. The applicant does not satisfy cl 050.222(3) to enliven the exception to the interview requirement because there is no evidence that an authorised officer was not available to interview the applicant within the timeframes provided by that clause as required by cl 050.222(3).

35. The applicant does not satisfy cl 050.222(4) to enliven the exception to the interview requirement because there is no evidence that the applicant has applied for a declaration from a court that the Act does not apply to him or that he has applied for judicial review or merits review of a decision made in relation to the applicant under the Australian Citizenship Act 2007 (Cth) as provided by cl 050.222(4AAA). Nor is there any evidence that the applicant is under 18 years of age and a member of the immediate family of a person who meets the requirements of subclause 050.222(4AAA).

36. The applicant does not satisfy cl 050.222(5) to enliven the exception to the interview requirement because there is no evidence that an authorised officer has decided that it is not necessary to interview the applicant.

37. The absence of any information to demonstrate that the exceptions apply means that there was a requirement that the applicant be interviewed by an authorised officer.

38. As there is no evidence that the applicant has been interviewed, it follows that the applicant does not satisfy cl 050.222.

    The requirement to be an eligible non-citizen – cl 051.211

39. There is no evidence that the applicant is an eligible non-citizen as provided by subregulation 2.20(7), (8), (9), (10) or (11) for the following reasons.

40. The applicant is not an eligible non-citizen as provided by 2.20(7) because that subregulation requires the applicant to be under 18 years of age. The evidence is that the applicant is older than 18 years of age.

41. The applicant is not an eligible non-citizen as provided by 2.20(8) because that subregulation requires the applicant to have turned 75 years of age. The evidence is that the applicant is under 75 years of age.

42. The applicant is not an eligible non-citizen as provided by 2.20(9) because that subregulation requires, among other things, that the applicant has a special need (based on health or previous experience of torture or trauma) in respect of which a medical specialist appointed by Immigration has certified that the non-citizen cannot properly be cared for in a detention environment. There is no evidence that a medical specialist appointed by Immigration has certified that this is the case.

43. The applicant is not an eligible non-citizen as provided by 2.20(10) because that subregulation requires, among other things, that the applicant is a souse or de facto partner of an Australian citizen/permanent resident or eligible New Zealand citizen. There is no evidence that the applicant is such a person.

44. The applicant is not an eligible non-citizen as provided by 2.20(11) because that subregulation requires, among other things, that the applicant be a member of the family unit of a person to whom 2.20(11). There is no evidence that the applicant is such a person.

    CONCLUSION

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

46. For the reasons given above, the applicant does not satisfy the criteria for the grant of a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

    DECISION

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

    Nathan Goetz
    Member