Bains (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse to grant Mr Navpreet Bains, an Indian national, a Student (Temporary) (Class TU) Subclass 500 visa. Mr Bains had previously held a Student visa which was cancelled under s.116(1)(b) of the Migration Act 1958 for failing to maintain enrolment in a registered course. The delegate refused the current visa application on the basis that Mr Bains did not satisfy Public Interest Criterion (PIC) 4013, as he was affected by a 'risk factor' due to the previous visa cancellation.

The primary legal issue before the Tribunal was whether Mr Bains satisfied PIC 4013, which is a criterion for the grant of a Subclass 500 visa. Specifically, the Tribunal had to determine if Mr Bains met either of the conditions under PIC 4013(1) for an applicant affected by a risk factor: either the current visa application was made more than three years after the previous visa cancellation, or compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, justified the grant of the visa within the three-year period.

The Tribunal reasoned that PIC 4013 is a criterion to be satisfied at the time of the decision, not the time of application. It found that Mr Bains was indeed affected by the risk factor under PIC 4013(2)(b) due to his previous visa cancellation. However, the Tribunal noted that the applicant's representative had submitted that if the Tribunal made its decision after 24 July 2020, it would be more than three years since the cancellation of the applicant's previous visa, thus satisfying PIC 4013(1)(a). The Tribunal accepted this submission, finding that the three-year period had elapsed by the time of the Tribunal's decision.

Consequently, the Tribunal set aside the delegate's decision and found that Mr Bains satisfied PIC 4013 for the purposes of cl.500.217(1) of Schedule 2 to the Migration Regulations 1994. The Tribunal remitted the matter for reconsideration of the visa grant.