2216500 (Migration)

[2023] AATA 3894

2216500 (Migration) [2023] AATA 3894 (11 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2216500

MEMBER:James Silva

DATE:11 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 11 October 2023 at 5:44pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – interviewed by an authorised officer – no applicable exceptions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 050.222

CASES
He v MIBP [2017] FCAFC 206

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 26 September 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 21 October 2022 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. The applicant submitted a copy of the decision record to the Tribunal.

4. The applicant appeared before the Tribunal on 21 September 2023 to give evidence and present arguments. The Tribunal had initially invited the applicant to attend a hearing in Sydney, but agreed at the applicant’s request to conduct it via videoconference, as he is currently located in the Northern Territory.

5. The applicant appeared before the Tribunal to give evidence and present arguments on 11 October 2023. The hearing was conducted via videoconference, at the applicant’s request and to take into account his remote location. An interpreter in the Fijian and English languages assisted with the hearing. The applicant presented [Mr A], whom he described as an uncle, and a youth sports coordinator in the [named] Council. He nominated [Ms B], an adopted aunt, as a witness, but she was unable to attend.

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 cl.050.222.

   The requirement to be interviewed by an authorised officer - cl 050.222, and the exceptions

• 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 applicant has not claimed, and there is nothing to suggest, that he 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, the applicant was not seeking a further Bridging E visa in association with an ongoing substantive visa application.

  §  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 by telephone and email, on 19 and 20 October 2022.

  §  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. As noted in the delegate’s decision record, the applicant has no 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.

  The conduct of an interview by an authorised officer

1. As noted in the delegate’s decision record[1], the officer considered an interview necessary, and it did not proceed. At hearing, the applicant stated briefly that he did not have a telephone at the relevant time.

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

2. 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, 21 October 2022. The only relevant factor is that the interview did not proceed.

   Interview by an authorised officer during the course of the review

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

4. 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.

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

   Other matters

6. The applicant provided the Tribunal with a significant amount of documentary evidence concerning his background in Fiji and his reasons for wishing to stay in Australia, including the poor job opportunities and security environment in Fiji; his employment record and work ethic in Australia; and his current work in a remote community in [location], NT. He added that a person had offered to arrange a student visa for him, but instead made an application for a [permanent] visa. They took his money, and scammed him. The applicant provided supporting statements and photographs of his work in [location], particular contributing to the welfare of local residents.

7. The applicant appears to have a limited understanding of Australian migration law. At hearing, he confirmed that he has no current visa. The Tribunal noted that a letter of support dated 4 October 2023 from [Company 1], [Mr C], referred to the applicant’s [permanent] visa application. When asked about this at hearing, the applicant said that was a mistake. He has no ongoing substantive visa applications. The applicant’s witness, [Mr A] advised that the applicant had contacted lawyers, who said that they were unable to assist.

8. The Tribunal explained that the scope of this review was limited to the decision of 21 October 2022, but undertook to note these matters in the decision record. Having confirmed that the applicant currently does not hold any visa, it encouraged him to engage with the Department, and consider seeking further legal or migration advice.

   Conclusion

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

10. 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

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

    James Silva

    
    

    Member