Payakkhawong (Migration)

[2022] AATA 2429

Payakkhawong (Migration) [2022] AATA 2429 (18 May 2022)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Panya Payakkhawong

CASE NUMBER:  2204426

HOME AFFAIRS REFERENCE(S):          BCC2021/2371261

MEMBER:James Silva

DATE:18 May 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 18 May 2022 at 3:29pm

CATCHWORDS
MIGRATION –Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – an authorised officer did not conduct an interview for the purpose of cl.050.222 –decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65

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 378 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 on 4 March 2022 to refuse to grant the visa applicant a Bridging E (Class WE) Subclass 050 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 December 2021. Class WE contains 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 4 March 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, cl.050.222(5). The applicant submitted a copy of the decision record to the Tribunal.

4. The applicant appeared before the Tribunal on 18 May 2022 to give evidence and present arguments. The Tribunal had invited the applicant to appear in person at 9:00am on 18 May 2022, and he accepted this in writing. He did not appear at the scheduled time. At approximately 9:45am, the applicant telephoned the Tribunal to enquire why no one had telephoned him. He appears to have misunderstood the nature of the hearing invitation. The Tribunal considered it reasonable, in the circumstances and also taking into account that the applicant is unrepresented and currently holds no visa (and may therefore have been apprehensive about appearing in person), to proceed with a telephone hearing. It also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

5. The applicant appeared to have a poor understanding of migration law. The Tribunal wrote to him and explained at hearing the requirement that an authorised officer conduct an interview. It is satisfied, in the circumstances, that he was given a fair opportunity to give evidence and present arguments. 

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets cl.050.222. Clause 050.222 requires that except in certain circumstances, the applicant must be interviewed by an officer authorised for the purposes of that clause.

9. The decision record sets out the delegate’s view that the exceptions to the requirement for an interview do not apply. It also records the delegate’s attempts to contact the applicant by telephone, on 16, 21 and 25 February 2022, and via an email sent on 21 February 2022, foreshadowing an interview on 25 February 2022.

10. Relevantly, the delegate found that an authorised officer had not interviewed the applicant, and he therefore did not satisfy cl.050.222, as of 18 May 2022.   

    The exceptions

11. 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 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.

    §  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

12. As noted above, the delegate’s decision record[1] states that an interview was necessary, and that it did not occur.

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

13. The applicant submitted to the Tribunal a statement (undated and addressed to the ‘Immigration Department’) explaining why he had not been available for interview (and other background information on why he needs a bridging visa to stay in Australia). In brief, [reasons deleted].

14. 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, 4 March 2022. The only relevant factor is that the interview did not proceed.

    Interview by an authorised officer during the course of the review

15. 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), they will not conduct one during the course of a Tribunal review. The applicant did not provide any substantive comments on this advice.

16. 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.

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

    Other matters

18. In his written statement to the Tribunal, the applicant stated that he has a daughter in Australia who is disabled, and that he needs to stay in Australia, at least while her Australian citizenship application is being processed. He expected this would take some six to 12 months. He provided a copy of a birth certificate for a daughter born in Sydney, [which] includes his name as the father.  The applicant also provided a partial photocopy of his Thai passport. At hearing, he also briefly mentioned that he needs to remain in Australia.

19. The Tribunal explained that the scope of this review was limited to his eligibility for a Bridging E visa, but undertook to note these concerns in its decision. It recommended that the applicant contact the Department to discuss his migration status and options, and seek legal or migration advice.

    Conclusion

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

21. 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

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

    James Silva

    
    

    Member