2208465 (Migration)

[2023] AATA 3625

2208465 (Migration) [2023] AATA 3625 (3 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2208465

MEMBER:James Silva

DATE:3 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 03 October 2023 at 4:18pm

CATCHWORDS  
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General) – applicant had not been interviewed by an authorised officer – applicant has not claimed that she falls within any of the exceptions – decision under review affirmed  

LEGISLATION
Migration Act 1958, s 73
Migration Regulations 1994, 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

1. This is an application for review of a decision dated 9 June 2022 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 21 May 2022. 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 the basis that the applicant did not meet cl.050.222, as she had not been interviewed by an authorised officer; she 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 3 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s cousin, Ms [A]. The applicant is unrepresented and appeared to have little understanding of Australian migration law, and [Ms A] explained her situation in relation to this and an ongoing protection visa application. The applicant did not submit any supporting documentation.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant meets cl.050.222.

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

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

7. The decision record sets out the delegate’s view that the exceptions to the requirement for an interview do not apply. It states that the delegate made numerous attempts to contact the applicant by telephone and email on 8 and 9 June 2022, without success. Relevantly, the delegate found that an authorised officer had not interviewed the applicant, and she therefore did not satisfy cl.050.222, as of 18 May 2022.  

   The exceptions

8. Clause 050.222 provides for certain circumstances in which an interview by an authorised officer is not required. The applicant has not claimed, and there is nothing to suggest, that she falls within any of the exceptions. The Tribunal sets these out briefly, for completeness.

   §  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, at the time of application, the applicant had not made a valid application for a substantive visa.

   §  Clause 050.222(3) applies in certain circumstances when an authorised officer was unavailable to interview the applicant. As noted in the delegate’s decision record, an authorised officer had been available and had attempted to interview the applicant.

   §  Clause 050.222(4) applies if 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. There is nothing to suggest that the applicant had, at the time of application, a relevant merits or judicial review application.

   §  Clause 050.222(5) applies if an authorised officer has decided it was not necessary to interview the applicant. As the decision record indicates, the authorised officer did not make any such decision, but instead found that an interview was necessary.

9. The Tribunal is satisfied, and finds, that the applicant was required to attend an interview with an authorised officer, as per cl.050.222.

   The conduct of an interview by an authorised officer

10. As noted above, the delegate’s decision record[1] states that an interview was necessary, and that it did not occur. At hearing, the applicant and [Ms A] accepted that the interview had not taken place. They said that they moved home in mid-2022 and did not have reliable communications at the time.

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

11. The Tribunal 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 6 June 2022. The only relevant factor is that the interview did not proceed.

    Interview by an authorised officer during the course of the review

12. The Tribunal noted in the hearing invitation letter and at hearing the Department’s advice that where an applicant did not attend a Department interview (regardless of the reasons why this did not take place), they will not conduct one during the course of a Tribunal review. The applicant did not provide any substantive comments on this advice.

13. The Tribunal finds that, based on this advice and irrespective of whether the Department’s position is correct (including the suggestion that there is no basis for it to conduct such interviews), there is no prospect of an authorised officer conducting a cl.050.222 interview in respect of this application.

14. The Tribunal finds that the applicant does not meet cl 050.222 at the time of decision.

    Other matters

15. The applicant currently does not hold any visa. The Tribunal noted that she has an ongoing application for review of a decision to refuse to grant her a protection visa, and recommended that she contact the Department to regularise her migration status.

16. In this context, it noted the applicant’s and [Ms A] advice that they were relying on Mr [B] to assist with the applicant’s migration matters (including this application); that they had paid him money for this; and that they had been unable to contact him recently. It recommended that they ensure that any person advising them has appropriate qualifications and is a registered migration agent or lawyer.

    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