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Warning About Telephone Interviews!!
Telephone interviews by the Department can be extremely dangerous territory for a visa applicant!
An applicant may receive a call from a Departmental officer unexpectedly, or “out of the blue”.
If an applicant receives a phone call “by surprise”, she/he may not be prepared to discuss the application, and may answer questions over the phone in a way that might put their visa application at risk – for example, by making statements that are inconsistent with what has been said in the visa application.
Since the Department seems to be using Public interest Criterion 4020 more and more as the basis for refusing visa applications, it is especially important that RMAs counsel their clients that it is entirely possible that they may be interviewed over the phone by the Department, and that they must be cautious and thoughtful when giving information during a call.
The risks associated with a “phone interview” are illustrated by the following story that was reported to the Migration Alliance by one of our members:
The applicant received a call from the Department in May 2016. During the call, the delegate asked the applicant to “provide a timeline” of his relationship with his fiancé, who was sponsoring him for a Partner visa. The applicant stated that his romantic relationship with his sponsor had commenced in February 2013 and that he had made a decision to marry his sponsor in July 2013.
The difficulty for the applicant was that, also in July 2013, the applicant had lodged an application for a visitor visa. In this application, the applicant had stated only that the intended purpose of his visit to Australia was for “sightseeing”. The visitor visa application did not mention that the applicant had a fiancée in Australia and that he intended to visit her.
Even worse was that in the course of this phone call, the applicant apparently said to the delegate that he had not disclosed the information concerning his plan to visit his fiancée on the visitor visa application, and that he had misled the Department in order to avoid refusal of the visitor visa.
Or at least this was what the Department claimed the applicant had said during the phone interview.
Did this phone call put the applicant in “hot water”?
Yes it did!
Following the call, the applicant received a “natural justice” letter from the Department under section 57 of the Act which invited him to comment on the information in his visitor visa application that was considered by the Department to be false or misleading.
And as we know, under PIC 4020(1)(b), giving information to the Department that is false or misleading in a material particular in relation to a visa that has been held by an applicant in the 12 month period before a subsequent application is made can sound the death knell on the new application.
So running afoul of PIC 4020 by “not disclosing” material information on a visitor visa application concerning the true reasons for making a visit to Australia could in this case have set in motion potentially catastrophic consequences, including refusal of the partner visa application, loss of the visa application charge (no small matter!), and the parties’ to the relationship possibly being separated for a prolonged period of time due to the possible imposition of an exclusion period for a further partner visa application (see clauses 300.323(a), 309.225(a) and 820.226).
So, wait a minute. Does the Department even have legal authority to interview an applicant over the phone?
Yes it does!
Refer to section 59(2) of the Act, which says:
“Section 58 and this section do not mean that the Minister cannot obtain information from an applicant by telephone or in any other way”.
See also section 56(1), which says that in considering a visa application, the Minister may =, if he or she wants to, get any information that he or she considers relevant.
So what lessons of this story?
First, as always, it is critically important during an initial interview to find out what previous visa applications the applicant has made.
If indeed an applicant has not correctly stated her/his relationship status or the true purpose for a proposed visit to Australia on a visitor visa application, that may seriously compromise the prospects for a successful partner visa application.
And if that has happened, it may (unfortunately) be the better, safer course to defer lodging the partner visa application until more than 12 months has passed since the applicant held the visitor visa application. Of course, that strategy would almost surely carry the consequence that the partner visa application could not be lodged from onshore, with a bridging visa being granted to the applicant pending processing of that application.
Another lesson? Applicants should be counseled by RMAs to exercise extreme care to ensure that all of the information that they provide on a visa application is completely accurate and truthful.
And applicants should be counseled further that if they do receive a phone call from the Department, the answers they give should be consistent with what has been said in the application (to the point where it would be sound for an applicant to tell an officer: “ I am happy to discuss my application with you, but can you please hang on a second so I can get a copy of my application and refer to it as I respond to your questions”.
Would it be open to an applicant simply to refuse to answer any questions from the Department over the phone?
It seems highly doubtful!!
Interestingly enough, though it does not appear that the Act includes a specific provision that states, in express terms, that if an applicant is asked a question in relation to a visa application during a telephone interview, the applicant must answer, at least immediately.
However, Regulation 2.15(1)(b) does say that if an invitation is given to an applicant to give additional information or comments in relation to an application, the period for giving that information is 7 days.
So while it appears that the Department cannot “compel” a person to answer a question over the phone immediately, I strongly suspect that if an applicant were to refuse to do so, there would be a substantial risk that their application would be refused (put in the shredder?) on the basis that the Department is not satisfied that the relevant criteria have been met.
(By the way, in working on this article I discovered that under section 192 of the Act, non-citizens who are liable to visa cancellation can be taken into detention, held for 4 hours and questioned! Did anyone else know that this lovely provision existed in the Act? Welcome to the gulag, welcome to 1984!)
Ok, your turn! Has anyone else out there received similar reports about their clients being subjected to phone interviews?
Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
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Thursday, 22 December 2016Hi Chris,
I received a Natural justice letter from department for something mismatch on telephone interview of me and all my 3 references at same time.
when I check with my references, they told me that some concern which are raised in natural justice letter is not even happen in telephone interview. one reference told me that, the investigating officer don't asked him any question regarding I am fresher or not when I start working there, but they put this concern in Natural justice letter.
can you please let me know is all this telephone interviews taking place overseas by the local office is get recorded or not, can I request my case officer(in Australia) to please listen all this phone interview by herself before making the final decision, as I am very much confident that there are many concerns mention in this letter is not even come up in phone interview. one of my reference had a call recorder in his mobile and total complete call is get recorded in his mobile, from that we get to know that some concern raised in the letter is not even discussed in phone interview. please reply me soon. thanks -
Tuesday, 19 September 2017
Recording anyone without explicit consent/agreement is an offense in australia.
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Tuesday, 21 June 2016
Unfortunately this is usually the standard format for overseas posts. They never give warning when they conduct phone interviews.
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Tuesday, 21 June 2016
If the applicant receives a call from DIABP unexpectedly, is not that a good idea to say: "No is not a good time for me to talk, I am busy" and to make a time for an interview.
I always tell my clients to act this way. -
Friday, 18 November 2016
Hi dear sir / madam,
I am Hanifa Nasiri,
Thank you for your useful information.
Can you please help me about my application currently goes under delegate construction P 4020. So I am really don't know what I have to do.
Thank you.
Kindest Regards Hanifa. -
Tuesday, 21 June 2016
Very startling. A lot of people are actually confused by terminology and could give an answer which would put him/her in hot water more through a misunderstanding than a lie. Oh dear.
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Tuesday, 21 June 2016
Serendipity! I've just received an email from client in Vietnam that Immi called her directly today. Strange as there is nothing 'risky' about this case, quite straightforward. Asked client to obtain another birth certificate even though the one provided with appn was the properly translated and certified in Vietnam. Here's the 'interesting' bit - client asked if she is required to have the new birth cert translated and certified too and officer said no, just send the copy of new birth cert in. Two hours after the telephone interview I received Request for Further Info requesting a new birth cert.
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Tuesday, 21 June 2016
I thank you Michael Arch for providing such detailed interpretation of the Law always. Your blog's are always very enlightening and are most valuable
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Wednesday, 22 June 2016
Interesting read. However, if the applicant actually stated that they were going to visit their fiancee then that would have made it correct?
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Wednesday, 22 June 2016
What if the phone number is not provided in the application at all to circumvent the surprise phone call and if later the department asks that they need to speak to the client; the client is in a better position to talk.
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Wednesday, 22 June 2016
The other interesting point to observe - are any of these interviews ever recorded so that if there is a dispute on what was actually said, who's version will carry the day?
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Wednesday, 22 June 2016
yes we had one where the poor applicant was at work - he advised the delegate he could not talk but understood this might cause considerable delay to the case (ie the delegate put pressure on to do the interview then and there)
Delegate did not bother to ask what sort of work he was doing - he was a rickshaw driver in the middle of Quetta with passengers and he had to put the rickshaw down ndn answer personal questions about his married life!!!! -
Wednesday, 22 June 2016
We have always warned our clients that an immigration officer may call them unexpectedly for a phone interview and when this happens, they simply have to say that the call is on inconvenient time and they should ask the officer a request for interview in writing through their Migration Agent.
Yes, some of our student visa applicants have been subjected to unexpected phone interview and they simply had to say the above and no dramas. -
Thursday, 23 June 2016
my client was drilled for 30 minutes just over why she did not include having a boyfriend in the list of relatives and contacts in Australia when she applied for a visitor visa. firstly there is no option of boyfriend/girlfriend on the list, secondly she mentioned she did not want to jinx the relationship and thirdly stated given she has been married twice she was embarrassed and through it was stupid to state something she was unsure of where the relationship was going.
we got the partner visa. I must add she was asked whether the migration agent advised her not to include her boyfriend at the time who is her now husband and its ok to tell them because it happens all the time. She responded know and repeated what she had said. -
Thursday, 23 June 2016
I agree that letting applicants get on the phone or in electronic communications with the department is often fatal and we usually tick the "no" box to any form of non-snail mail communications with the clients wherever possible (but tick "yes") for such communications with ourselves.
Misleading omissions in applications:
• omission of information on visa applications should be considered as dangerous as giving wrong information, because Departmental policy explicitly states that omitting information can be intentionally misleading, just as giving wrong information can be. However, if the applicant was ignorant to the relevance of an answer, we would argue for the non-application of PIC 4020, as policy allows this to be considered in the case of misleading omissions (as distinct from misleading inclusions)
Here is the part of the policy contained in PAMS that is relevant to omissions of information and also that relevant to phone :
"If incorrect information has been given, or information has been omitted, the delegate will need to determine four matters:
• whether the incorrect information was more than a typographical error
• whether the omission was the result of the applicant being ignorant to its relevance
• whether the information was also ‘false or misleading’ at the time it is given and
• whether the information, or omission is ‘false or misleading in a material particular’ - that is, relevant to any of the criteria the delegate may consider when making a decision on the current visa application, whether or not the visa decision is based on that information (PIC 4020(5) refers)."
Notification
• It's true that case officers can question people by phone, but when refusing on Pic 4020 grounds, officers must give the applicant notice in advance and allow them to comment. Generally notice is given in writing but this is not necessarily so in offshore cases. There must be a notification, but if it is not considered a “complex” case, the notification can be by telephone. If it is done by telephone, then the case officer is supposed to convey particular information, note the responses and also note other things. Here is the Department’s policy about it:
"Sufficient evidence to refuse a visa for failing to satisfy PIC 4020
Before deciding a visa application, a delegate is required to:
• provide an applicant with any ‘relevant information’ (other than non-disclosable information) that would form the reason, or part of the reason, for the decision to refuse to grant the applicant a visa
• ensure, as far as is reasonably practicable, that the applicant understands why that information is relevant to consideration of the application and
• invite the applicant to comment on that information.
The Trivedi outcome indicates it is legally necessary for delegates to turn their mind to whether there is an innocent explanation for the provision of false or misleading information. The best practice approach is to provide the applicant with an opportunity to comment whenever PIC 4020 is in issue. Although there is no obligation on the delegate to determine whether the applicant knowingly gave false information, there needs to be an element of “purposeful falsity” in the giving of the information (Trivedi v MIBP). If the applicant claims to have made an innocent mistake in the omission, and the delegate believes their claims about the mistake, then it would be open to the delegate to find that there is no purposeful falsity, and that PIC 4020 is met.
(Note: Since 1 January 2015, the requirement in s57 of the Act to put ‘relevant information’ to a visa applicant for comment has applied to all visa applications, irrespective of whether the application was made onshore or offshore.)
An “Invitation to comment” letter can be issued to the applicant. This letter gives the applicant the opportunity to comment on the suspected false or misleading information and/or bogus document, as well as to specify whether they believe any grounds for waiver apply. Refer, in TRIM, the template letter “Invitation to comment - s57 - common law natural justice - PIC 4020” (ADF2014/8017).
For offshore cases it may be possible to provide natural justice by telephone to the applicant. Subject to the facts of each case, it would be appropriate for this to be applied in “simple” cases, where it is clear that the visa applicant has sufficient knowledge of English and/or an interpreter is available. For all other cases the invitation to comment should be provided in writing, as it might be difficult for an applicant to absorb all the information over the telephone.
The provision of natural justice by telephone should mirror what would be provided in the “invitation to comment” letter. A thorough record should be made of the telephone conversation with the applicant, and any response the applicant provides during the conversation. It would be advisable for delegates, while on the telephone to the applicant, to repeat back to the applicant what they have said to check the applicants comments have been accurately captured.
When natural justice is given by telephone the following information needs to be recorded:
• details of the adverse information or documentation that the delegate considers would result in the refusing to grant the visa
• what the applicant was told about PIC 4020 (for example, how it applies, the affect that it will have)
• how the applicant was told to respond (for example, in writing, by email)
• what period of time the applicant has been given to respond
• details of the applicant being asked to comment on whether compelling or compassionate circumstances exist that may warrant the waiver of PIC 4020(1) or (2) and
• all comments provided by the applicant during the telephone call.
It is easy to see from the above list, how an applicant may be overwhelmed by a telephone conversation covering all those aspects. This is why in complex cases it may be unfair to expect the applicant to absorb the information in a telephone conversation."
I am currently seeking to have a case re-opened following a PIC 4020 refusal of a visitor visa application, where the "misleading" information was an omission which was self-evidently a mis-understanding and the notification and invitation to comment were both made by phone to the applicant. A close scrutiny of FOI documents showed that the officer who phoned the applicant did not follow policy in recording details of the conversation and that the details that were recorded showed further very obvious misunderstandngs. The applicant is out of time to lodge a review application. Getting cases reopened is difficult but we have sometimes managed it before, so I'm trying so as to prevent this applicant facing the 3 year exclusion. -
Friday, 24 June 2016
Hi Michael, yes have had similar experiences, Officer phoned applicant who admitted her brother was in Aus (not declared on application or to me) - refusal. Mother of applicant also applied but wasnt refused - same data on application but no phone interview (presume different officer). Irony is the mother and daughter just wanted to go to Aus. to try and convince the brother to return to his country (suspect he is illegal). Other side of the coin an applicant who applied first for a tourist visa and later for a spouse visa, both times phone interview, and you can guess the real reason for the tourist visa wasnt what was declared on the application, visas granted both times. Difference, maybe, first applicant a relatively naive company clerk, second applicant a battle hardened court room lawyer. Incidentally even with form 956 I received no notification of an intent to phone for either tourist visa but I did receive notification of an intent to phone for the spouse visa. Also the "option" to not answer the phone, Im out of the office can backfire - first applicant tried that and in the refusal report the Officer noted that she "couldnt confirm applicant actually worked where she said she worked".
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Tuesday, 12 September 2017
Hi,
I want to ask my interview has been done from immigration department, I have applied for the spouse visa subclass 309, after completion of 7 months I got an interview call, I want to ask how long does it take for the visa grant please help? -
Thursday, 19 October 2017
Hi, I got a letter from Natural justice as well, I worked for two different organizations, both are full time, unfortunately, I used to work for the primary organization for general hours 10-5 and other organization in night shift from 10- 3, But when they called both organisations, they said I worked in general hours which is 9-6, Now case officer is asking how can I worked for both organization at same time. I called the employer and informed about the situation, he said he can referral letter saying that he can provide I worked in night shift. Do you think the case officer will be okay with the response, In India even if you worked for less hours it will be considered has full time.
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Friday, 19 January 2018
“ I am happy to discuss my application with you, but can you please hang on a second so I can get a copy of my application and refer to it as I respond to your questions”.
I don't agree that we can do this as we received a call and the lady said that we confirm to them we are not referring to any document and only answering from our knowledge.
Immigration blog
Dear Colleagues,
i always take the precaution of saying to my clients ...don't nominate a contact number on any forms. I will put my contact details on the form 956 and I will keep your numbers on my file. if you are represented by me I do not want Immigration to ring you and then lock you into some imaginary problem which will take extra work and money to resolve.
If they do ring you then you should ask them to ring your solicitor because you have no way of checking that you are in fact speaking to an Officer of the Department. Ask them to give you their name and contact number and tell them you will ring them back. Then contact me and i will ring them as quickly as i can to find out what they want. There is in my view no point in having an authorised representative only to have a case officer by pass that person. It is not only bad manners but is also unprofessional.
My experience tells me that absent a recording of the conversation and a resort in most cases to an interpreter, the version of events recorded by the case officer over the telephone and subsequently forming an electronic file note and then the recitation of those facts into a Section 57 Natural Justice letter will not be an accurate record of exactly what questions were asked and what answers were given.
I recommend training our clients to adopt a defensive posture and not have conversations with persons purporting to be their case office. This is a case of stranger danger!