2517935 (Migration)

[2025] ARTA 643

2517935 (Migration) [2025] ARTA 643 (14 April 2025)

Decision and
Reasons for Decision

Respondent:	Minister for Immigration and Multicultural Affairs
Tribunal Number:	2517935
Tribunal:	General Member F Robertson
Date:	14 April 2025
Place:	Perth
Decision:	1. The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with an order that the applicant satisfies cl 050.222 of Schedule 2 to the Migration Regulations 1994 (Cth) for a Subclass 050 (Bridging (General)) visa.

Statement made on 14 April 2025 at 12:43pm

CATCHWORDS

MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – whether the applicant has ‘been interviewed’ for the purposes of cl 050.222 – applicant participated in a telephone call with an authorised officer – applicant did not engage in a structured discussion – cl 050.222 concerned with occurrence of an interview not the quality or content – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 56, 58, 59, 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 reasons

INTRODUCTION

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. That application was refused by the delegate on 8 April 2025. The delegate found that the applicant did not satisfy one of the primary criteria, namely cl 050.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) which relates to the applicant attending an interview.

3. The applicant applied for review on 9 April 2025. A copy of the Departmental file was received by the Tribunal on 12 April 2025. The applicant appeared before the Tribunal on 14 April 2025 to give evidence and make submissions.

4. For the following reasons, the review application succeeds.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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’).

6. The delegate accepted the applicant satisfied the criteria in cl 050.211 and cl 050.212, both at time of application and at the time of decision.

7. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 050.222, at the time of decision, which relates to the applicant being interviewed by an authorised officer.

   The issue in this review application

8. The issue for determination is whether the applicant has ‘been interviewed’ for the purposes of cl 050.222 of the Regulations.

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

9. Clause 050.222 is in the following terms:

   (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.

   (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.

   (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.

10. The applicant does not claim to have been exempt from the requirement to be interviewed. In any event, I am satisfied that none of the exemptions are applicable to the applicant.

    The delegate’s decision

11. As indicated above, the delegate refused to grant the visa on the grounds that the applicant did not satisfy cl 050.222. The decision of the delegate sets out the critical reasoning for that conclusion as follows:

    I commenced this phone interview on 07 April 2025 at 11:08am, and after completing the identity verification process, you immediately began speaking without me being able to ask any interview questions. You talked about your previous visa refusal, the reason for your prior unlawful status and raised complaints regarding Departmental procedures.

    …

    At no point during the interview were you willing to engage in a structured discussion or allow me the opportunity to ask any questions relevant to your current visa application.

    This interview was a critical procedural requirement in the assessment of your bridging visa E (WE-050) application. By choosing not to continue with this interview and terminating the call, you effectively refused to participate in the interview and failed to comply with the interview requirement. (emphasis added)

    THE LEGISLATIVE REGIME

12. It is necessary to make some brief reference to aspects of the Act. Neither the Act nor the Regulations expressly define the word ‘interview’ or the associated phrase ‘has been interviewed’. In understanding what the Act and the Regulations mean by that phrase, it is necessary to consider the context in which the phrase appears.

13. Section 56 of the Act provides in considering an application for a visa, the Minister (or their delegate) may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

14. Section 58 of the Act provides for responding to an invitation to give further information or comments, and relevant provides that responses can be provided in writing; at an interview between the applicant and an officer; or by telephone.

15. Section 59 of the Act deals with interviews. It provides:

    Interviews

    (1) An applicant must make every reasonable effort to be available for, and attend, an interview.

    (2) Section 58 and this section do not mean that the Minister cannot obtain information from an applicant by telephone or in any other way.

    RESOLUTION OF APPLICATION

16. The issue for determination is whether the applicant has ‘been interviewed’ for the purposes of cl 050.222 of the Regulations. The resolution of this question turns on the proper construction of that clause in the context of the Act and Regulations.

    Whether the applicant ‘has been interviewed’?

17. Neither the Act nor the Regulations define the term ‘interview’. However, its ordinary meaning is clear: an interview involves a meeting or interaction, typically for the purpose of obtaining information, during which questions may be asked and answers may be given.

18. Importantly, cl 050.222 requires only that the applicant ‘has been interviewed’ by an authorised officer. The clause does not impose any further requirement that the applicant engage in a particular manner, answer questions, or allow the interview to proceed in a structured way. Nor does the clause permit a decision-maker to assess the adequacy or quality of the applicant’s participation in determining whether the interview has occurred.

19. I consider this construction is consistent with s 59 of the Act, which imposes on an applicant the obligation to make every reasonable effort to be available for, and attend, an interview. Section 59 does not require that an applicant participate in any particular way or obliged an applicant to answer questions asked at the interview.[1]

    [1]        cf Migration Act 1958 (Cth), s 257.

20. In the present case, the applicant participated in a telephone call with an authorised officer on 7 April 2025. During that call, the officer asked the applicant questions to verify his identity, which the applicant answered. Thereafter, the applicant made a series of statements concerning his migration history and complaints about the Department. The applicant resisted the officer’s attempts to interrupt him or to direct the conversation. Ultimately, after making his statements, the applicant disconnected the call.

21. I accept the applicant did not engage in a structured discussion and did not permit the delegate to ask further questions relevant to the visa application. However, the delegate’s reasoning that such conduct meant that the ‘effectively refused to participate in the interview’ and therefore that he did not satisfy the interview requirement in cl 050.222 was, respectfully, erroneous.

22. The Regulations require only that an interview occur. They do not impose a qualitative threshold on the applicant’s participation, nor do they, either expressly or by implication, permit a conclusion that an interview has not occurred because the applicant was uncooperative or unresponsive.

23. I am satisfied that the applicant ‘has been interviewed’ within the meaning of cl 050.222 of the Regulations. The telephone call between the applicant and the authorised officer constituted an interview. That the applicant chose to speak over the delegate, to control the subject matter of the discussion, and ultimately to terminate the call does not alter that conclusion.

24. The delegate’s reasoning was affected by a misunderstanding of the law. The delegate impermissibly read into cl 050.222 a requirement that the applicant participate in a particular manner or engage in a structured discussion. That construction is not supported by the text, context, or purpose of the clause.

25. I emphasise that this conclusion does not amount to approval of the applicant’s approach during the interview. However, I have found the criterion in cl 050.222 is concerned with the occurrence of an interview, not the quality or content of such an interview.

26. Accordingly, the decision of the Department will be set aside and the application remitted for reconsideration in accordance with the following decision.

    DECISION

27. The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with an order that the applicant satisfies cl 050.222 of Schedule 2 to the Migration Regulations 1994 (Cth) for a Subclass 050 (Bridging (General)) visa.

Date of hearing:	14 April 2025
Representative for the Applicant:	Not applicable