CHEN (Migration)

This matter concerned an application for review of a delegate's decision to refuse a Visitor (Class FA) Subclass 600 visa to the applicant, a citizen of China present in Australia. The applicant had held several visas, with his last substantive visa ceasing on 22 January 2021. He applied for a further visitor visa on 10 March 2021, which was subsequently refused on the basis that he did not satisfy Public Interest Criterion 3001 of Schedule 3 of the Migration Regulations 1994, as required by clause 600.223 of Schedule 2 of the Regulations. The applicant then sought review of this refusal by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant satisfied the criteria for the grant of the Visitor visa, specifically clause 600.223, which in turn required satisfaction of Public Interest Criterion 3001. PIC 3001 mandates that an application must be validly made within 28 days after the applicant last ceased to hold a substantive visa. The Tribunal also had to consider the procedural fairness obligations owed to the applicant, including whether he was afforded an opportunity to present his case.

The Tribunal noted that the applicant's last substantive visa ceased on 22 January 2021, and he applied for the visa in question on 10 March 2021, which was more than 28 days later. Consequently, the applicant failed to satisfy PIC 3001. The Tribunal had invited the applicant to a hearing and to comment on information that would be a reason for affirming the decision under review, but the applicant did not respond within the prescribed timeframe. As a result, the Tribunal cancelled the hearing and proceeded to make a decision based on the available material, finding no entitlement to a hearing under sections 360(2) and (3) of the Migration Act 1958 (Cth).

The Tribunal affirmed the delegate's decision to refuse the visa, concluding that the applicant did not satisfy the requirements of clause 600.223 due to his failure to meet PIC 3001.