2406202 (Migration)

[2024] AATA 3056

2406202 (Migration) [2024] AATA 3056 (12 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2406202

MEMBER:James Silva

DATE:12 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 12 August 2024 at 2:24pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – interviewed by an authorised officer – period of unlawful residence – passport renewal application – no ongoing substantive visa application – no relevant merits or judicial review application – applicant did not attend relevant interview – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 73
Migration Regulations 1994, Schedule 2, cls 050.212, 050.221, 050.222, 051.211; Schedule 8

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 16 February 2024. 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).

3. The decision to refuse to grant the visa was made on 7 March 2024 on the basis that the applicant did not meet cl.050.222, as he had not been interviewed by an authorised officer; he 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).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background and evidence

5. The applicant is [an age]-year-old man from India. According to his evidence at hearing, he came to Australia in 2014, on a tourist visa, and has held successive bridging visas since then. His most recent Bridging E visa ceased on 15 February 2024, and he is currently unlawful.

6. As noted above, the applicant applied for a Bridging E visa on 16 February 2024, on departure grounds. He indicated that he had applied for a replacement Indian passport, and expected that the Indian consular office would be able to provide him with one within three months.

7. The Tribunal has before it the Department file, which includes[1] the Bridging E visa application; a Department letter to the applicant dated 1 March 2024, advising him of an interview to be held in Parramatta on [in] March 2024; and the delegate’s decision record of 7 March 2024. The applicant provided the Tribunal with a copy of the decision record, and some limited information to support his request for a fee reduction.

   [1] This is not an exhaustive list.

8. The applicant appeared before the Tribunal to give evidence and present arguments on 12 August 2024. The hearing was conducted via teleconference, as the applicant is living in [Town 1] NSW and the Member is in Sydney. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant did not submit any additional documents at hearing, or request that the Tribunal take oral evidence from a witness.

9. The applicant appeared to have limited understanding of migration issues, and gave somewhat unfocussed evidence about his circumstances. He impressed on the Tribunal that his health and finances were not good, and that he wished to remain in Australia, as his family circumstances had changed.

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

10. The issue in this case is whether the applicant satisfies cl.050.222, which contains a requirement for an interview by an authorised officer. The text of cl.050.222 is set out at the attachment to this decision.

    Was an interview by an authorised officer necessary?

11. Subclause 050.222(1) requires that an authorised office must interview an applicant, unless cl. 050.221(2), (3), (4) or (5) applies. There is no suggestion that an interview was not necessary in this case, but the Tribunal addresses the exceptions, for the sake of completeness.

12. 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 was not seeking a further Bridging E visa in association with an ongoing substantive visa application.

13. 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 was available and had attempted to interview the applicant.

14. 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.

15. 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 decided that an interview was in fact necessary.

16. The Tribunal set these clauses out in the hearing invitation letter, and explored them at hearing. There is no suggestion that any of them apply in the present case.

    An authorised officer did not conduct an interview - cl 050.222

17. As none of the exceptions apply, cl. 050.222(1) requires that the applicant must be interview by an officer who is authorised by the Secretary for the purpose of that clause.

18. As noted in the decision record, the delegate sent invitations to the applicant, by email and a text message to his mobile telephone, for him to attend an interview in Parramatta [in] March 2024. He did not attend, or make contact. At hearing, the applicant did not dispute this.

19. The applicant told the Tribunal that a friend in [Town 1] had been assisting him with migration matters. He (the applicant) was vague about receiving correspondence or messages relating to the interview. He said that, in any event, he could not afford to travel from [Town 1] to Parramatta for an in-person interview. He wondered why the Department had not offered him the opportunity to have a telephone interview (as the Tribunal had done for its hearing). In response to the Tribunal’s questions, he said he could not recall whether he or his friend had contacted the Department to alert them to his inability to travel. The Tribunal is not satisfied that the applicant, even if he considered the invitation to an interview in Parramatta inconvenient or impractical, sought to engage the Department to explore other options. It is not persuaded by the suggestion that the delegate acted unreasonably.

20. The critical point is 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 7 March 2024.

    Interview by an authorised officer during the course of the review

21. 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.

22. The Tribunal finds that, based on this advice and irrespective of the merits of the Department’s position, there is no prospect of an authorised officer conducting a cl.050.222 interview in respect of this application.

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

    Other matters

24. The applicant currently does not hold any visa. The Tribunal recommended that he contact the Department or seek migration advice in order to regularise his migration status.

25. At hearing, the applicant raised a number of other matters, in a fairly unfocussed way.

    §  Indian consular officials had recently told him that he needed to send a further email to them, which he did in the second week of August 2024. He hopes that they will be able to issue him with a new passport in August or September 2024.

    §  The applicant emphasised that, without a visa (and by implication, work permission), he has little money. He lives with a friend, and assists with some household chores, and relies in part on a Sikh temple in [Town 1] to meet his basic needs. He also alluded to health problems, noting that on three occasions, he made medical appointments but had to cancel them for lack of funds.

    §  The applicant also said that, during his stay in Australia, there had been arguments in the family. His wife has now divorced him and returned to India with their child. He appeared to link this with his health issues and feelings of loneliness.

26. The Tribunal explained that these lie outside the scope of this review, which concerned only his Bridging E visa application; but it undertook to note them in the decision record.

    Conclusion

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

28. 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

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

    James Silva
    Member

    
    

    ATTACHMENT: BRIDGING E VISA: REQUIREMENT FOR INTERVIEW:  REGULATIONS

    050.222

    (1)   Unless subclause (2), (3), (4) or (5) applies, the applicant has been interviewed by an officer who is authorised by the Secretary for the purposes of this clause.

    (2)  This subclause applies if:

    (a)  the applicant is not in immigration detention; and
    (b)  the applicant has made a valid application for a substantive visa; and
    (c)  the applicant holds a Bridging E (Class WE) visa; and
    (d)  the applicant is not seeking to be granted a further Bridging E (Class WE) visa that is subject to conditions other than those that apply to the Bridging E (Class WE) visa that the applicant currently holds.

    (3)  This subclause applies if:

    (a) an officer who is authorised by the Secretary for the purposes of this clause was not available to interview the applicant.

    (i)  at the time of application; or
    (ii)  if the bridging visa could be granted under regulation 2.21B, at the time of decision; and

    (b)  the applicant is not in immigration detention; and
    (c)  the applicant has made a valid application for a substantive visa; and
    (d)  the applicant has previously held, but does not currently hold, a Bridging E (Class WE) visa.
    Note: For subclauses (2) and (3) — in certain circumstances, a Bridging E (Class WE) visa may also be taken to have been granted without application to a non-citizen who is in immigration detention. See the Act, s73. In addition the Minister may grant a Bridging E (Class WE) visa to non-citizens who are in criminal detention or are unwilling or unable to make a valid application: see r 2.25.

    (4)  This subclause applies if the applicant is a person:

    (a)  to whom subclause 050.212(4AAA) applies; or
    (b)  to whom subclause 050.212(4AB) continues to apply. [You or an immediate member of your family have sought a court declaration that the Act does not apply to you, and or seeking judicial or merits review of a decision under the Australian Citizenship Act 2007.]

    (5)  This subclause applies if an officer who is authorised by the Secretary for the purposes of this clause has decided that it is not necessary to interview the applicant.