Australian Immigration Daily News

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.