Caldera (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, brought before the Administrative Appeals Tribunal. The applicant sought review of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied Public Interest Criterion 4014, which is a requirement for the grant of the visa under clause 600.213. Specifically, the Tribunal had to determine if the applicant fell within the exclusion period stipulated by PIC 4014, which generally prevents the grant of a visa within three years of departure from Australia if the applicant departed as an unlawful non-citizen or as the holder of certain bridging visas granted more than 28 days after their last substantive visa ceased. The Tribunal also considered whether any 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 granting the visa within this exclusion period.

The Tribunal reasoned that the applicant had departed Australia on 18 December 2016 as the holder of a Bridging E (Class WE) visa, which was granted more than 28 days after their last substantive visa (a Student (Subclass 573) visa) ceased. This meant the applicant was affected by the risk factor in subclause 4014(4). As the visa application was made less than three years after this departure, the applicant did not satisfy clause 4014(1)(a). The Tribunal found no evidence of compelling or compassionate circumstances that would justify an exception to this rule.

Consequently, the Tribunal concluded that the applicant did not satisfy PIC 4014 and therefore did not meet the criterion in clause 600.213(1). The Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa.