2514343 (Migration) - [2025] ARTA 845

2514343 (MIGRATION) [2025] ARTA 845 (26 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Applicant:OKL

Visa Applicant:  ZNB
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2514343

Tribunal:General Member B Gogarty
Place:Hobart
Date: 26 June 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:
·Public Interest Criterion 4014 for the purposes of cl 600.213(1) of Schedule 2 to the Regulations

Statement made on 26 June 2025 at 12:54pm
CATCHWORDS
MIG MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – waiver of risk factor – applicant departed Australia as an unlawful non-citizen – Australian citizen child – health reasons – priority consideration – compassionate or compelling circumstances – mental health conditions – evidence of an underage witness – independent health assessment – effects of maternal separation – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Act 2024 (Cth), s 106
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4 Public Interest Criterion 4014
CASES
Anani v MIMAC [2013] FCCA 1140
Kaur v MIBP [2018] FCCA 1614
Singh v MIBP [2017] FCCA 2461
Thongpraphai v MIMA [2000] FCA 1590
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 20 March 2025 to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 February 2025. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 600.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she did not satisfy Public Interest Criterion 4014 (PIC 4014). Further details of the delegate’s decision are set out in the decision below.
Urgent listing and directions hearing
On 10 May 2025 the review applicant wrote to the Tribunal requesting the matter be prioritised as his [age]-year-old son (herein referred to by the anonymised party identifier PKL) is also the son of the visa applicant, and “her [the visa applicant’s] absence is having a profound emotional and psychological impact on him”. Attached to that request were relevant identity documents proving the relationship between each person as well as an Australian passport for PKL identifying him as an Australian citizen. The request was approved by a registrar and the matter was expedited for priority consideration on 23 May 2025. Upon constitution to the Presiding Member the applicant was sent a request for information (5 June 2025) and the matter was listed for a preliminary hearing on 6 June 2025.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2514343 (Migration)

Details

AGLC: 2514343 (Migration) [2025] ARTA 845
Case: [2025] ARTA 845
Decision Date: 26 June 2025

CaseChat Overview and Summary

This matter involves a review of a decision concerning the grant of a Visitor (Class FA) visa, specifically a Subclass 600 (Visitor) visa, to an applicant who had previously departed Australia as an unlawful non-citizen. The dispute centres on whether the visa applicant meets the criteria set out in Policy Instruction Criteria (PIC) 4014, which establishes circumstances in which an applicant is deemed to be affected by a relevant ‘risk factor’ and thus subject to a three-year exclusion period from being granted a visa. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the delegate’s decision to deny the visa was legally sound and if the ‘risk factor’ under PIC 4014 should be waived.

The primary legal issue before the AAT was whether the visa applicant was affected by a risk factor under PIC 4014, and if so, whether there were compelling or compassionate circumstances to warrant a waiver of this risk factor. The Tribunal had to examine the evidence presented and determine if the applicant met the criteria for a waiver under PIC 4014(1)(b), specifically whether there were compassionate or compelling circumstances affecting the interests of an Australian citizen, in this case, the applicant's Australian citizen child. The Tribunal also had to consider the evidence regarding the health reasons for the applicant's overstay and the impact of maternal separation on the child’s wellbeing.

In its decision, the Tribunal found that the visa applicant was indeed affected by a risk factor under PIC 4014 due to her departure from Australia as a Bridging Visa E holder having overstayed her visa by more than 28 days. The Tribunal acknowledged that the 28-day rule is absolute and cannot be waived by the Minister or the Tribunal. However, upon reviewing the additional evidence, including a medical report concerning the health and wellbeing of the applicant's child, the Tribunal determined that the circumstances warranted a waiver under PIC 4014(1)(b)(ii). The evidence demonstrated compelling compassionate circumstances affecting the interests of the Australian citizen child, leading the Tribunal to conclude that the delegate’s decision should be set aside and the matter remitted for reconsideration.

Consequently, the AAT ordered that the decision under review be set aside and the matter be remitted for reconsideration in light of the new evidence and the findings regarding the waiver of the risk factor under PIC 4014. The Tribunal also noted that further time was required to adequately address the complexities of the case, resulting in the scheduling of a further hearing to ensure all relevant aspects were thoroughly examined.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets PIC 4014 as required by cl 600.213(1) for the grant of the visa. That criterion sets out particular circumstances in which an applicant is deemed to be affected by a relevant ‘risk factor’. The relevant parts of PIC 4014 are as follows: Broadly speaking, PIC 4014 defines circumstances where an applicant is affected by a relevant ‘risk factor’ and, as a result, is subject to a three-year exclusion period from being granted a visa. The defined ‘risk factors’ in PIC 4014 include circumstances where an applicant has previously departed Australia as an unlawful non-citizen, or as the holder of a particular bridging visa. An applicant who is affected by a risk factor may only be granted a visa if the three-year exclusion period has passed since their departure from Australia, or if the Minister is satisfied of one of the following exceptions under 4014(1)(b) justify the granting of the visa:i) There are compelling circumstances that affect the interests of Australia; orii) There are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. A copy of PIC 4014 is attached to this decision.Is the visa applicant affected by a risk factor in PIC 4014? The delegate decided the applicant was affected by a risk factor under clause 4014(4) because they departed Australia [in] February 2024 as a Bridging Visa E holder having overstayed her visa by more than 28 days. The review applicant does not contest the visa applicant met these criteria although he sought to advance explain the health reasons why the visa applicant had overstayed her bridging visa. The Tribunal notes that 4014 makes the 28 day rule absolute and not something which the Minister or Tribunal has discretion to waive. If the 28-day risk factor is triggered it may only be overcome by one of the exceptions set out above. Having reviewed the relevant departmental and movement records for the applicant the Tribunal is satisfied that the visa applicant is affected by a risk factor for the purposes of PIC 4014. Should the risk factor under PIC 4014 be waived? Having decided the applicant is affected by a risk factor for the purposes of 4014 the delegate invited submissions and evidence about whether a waiver should be granted. While the review applicant sought to address that request the submitted evidence did not address the specific elements of either of the main waiver grounds. At the directions hearing the review applicant acknowledged he may have misunderstood what he was required to address his submissions to and had directed his efforts to explaining why the visa applicant had overstayed and why the visa applicant should be treated compassionately. As noted, these are relevant considerations in respect of the possible waivers under PIC 4014 and the delegate correctly decided on the evidence presented that there was no are grounds to justify the waiver of PIC 4014 and the grant of the visa.

Decision

Reasons for decision

The review applicant appeared at the scheduled hearing indicating that he required further time to respond to the Tribunal’s questions and obtain appropriate evidence. The review applicant also agreed that he had not fully understood the basis of the delegate’s decision and required further time to prepare appropriate submissions. As such the Tribunal, with the agreement of the applicant, treated the case event as a directions hearing. A further hearing was set down for 27 June 2025. The review applicant made a series of submissions after the directions hearing and a further request for information, including more precise directions and questions relating to the health and wellbeing of PKL was sent to the applicant on 16 June 2025. Decision without a hearing On 20 June 2025 the review applicant submitted, amongst other things, a medical report relating to PKL which had been requested by the Tribunal at the hearing and in the further request for information. Having reviewed that report the Tribunal considers, for the reasons set out below, that report satisfies the conditions of a waiver under PIC 4014 (4014(1)(b)(ii)) which is dispositive of the matter wholly in the applicant’s favour. Pursuant to s 106(3) of the Administrative Review Tribunal Act the Tribunal was satisfied it could make its decision without a further substantive hearing. For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets PIC 4014 as required by cl 600.213(1) for the grant of the visa. That criterion sets out particular circumstances in which an applicant is deemed to be affected by a relevant ‘risk factor’. The relevant parts of PIC 4014 are as follows: Broadly speaking, PIC 4014 defines circumstances where an applicant is affected by a relevant ‘risk factor’ and, as a result, is subject to a three-year exclusion period from being granted a visa. The defined ‘risk factors’ in PIC 4014 include circumstances where an applicant has previously departed Australia as an unlawful non-citizen, or as the holder of a particular bridging visa. An applicant who is affected by a risk factor may only be granted a visa if the three-year exclusion period has passed since their departure from Australia, or if the Minister is satisfied of one of the following exceptions under 4014(1)(b) justify the granting of the visa:i) There are compelling circumstances that affect the interests of Australia; orii) There are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. A copy of PIC 4014 is attached to this decision.Is the visa applicant affected by a risk factor in PIC 4014? The delegate decided the applicant was affected by a risk factor under clause 4014(4) because they departed Australia [in] February 2024 as a Bridging Visa E holder having overstayed her visa by more than 28 days. The review applicant does not contest the visa applicant met these criteria although he sought to advance explain the health reasons why the visa applicant had overstayed her bridging visa. The Tribunal notes that 4014 makes the 28 day rule absolute and not something which the Minister or Tribunal has discretion to waive. If the 28-day risk factor is triggered it may only be overcome by one of the exceptions set out above. Having reviewed the relevant departmental and movement records for the applicant the Tribunal is satisfied that the visa applicant is affected by a risk factor for the purposes of PIC 4014. Should the risk factor under PIC 4014 be waived?

Ratio Decidendi

Legal Principle Established

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