Kohli (Migration)

This matter concerned an application for a Subclass 600 (Visitor) visa by a citizen of India, who sought to satisfy the criteria for the Sponsored Family stream. The visa applicant had previously departed Australia on 7 March 2018, holding a Bridging visa E after her substantive visa had ceased to be in effect for more than 28 days. The delegate refused the visa application on the basis that the applicant did not meet Public Interest Criterion (PIC) 4014, which imposed a three-year exclusion period following her departure. The review applicant, the visa applicant's daughter, lodged an application with the Tribunal.

The primary legal issues before the Tribunal were whether the visa applicant met the requirements of clause 600.213, specifically PIC 4014, and clause 600.211 of Schedule 2 to the Migration Regulations 1994. PIC 4014 addresses situations where an applicant is affected by a "risk factor," such as departing Australia as an unlawful non-citizen or the holder of certain bridging visas. Where such a risk factor applies, the applicant must either have applied for the visa more than three years after departure or satisfy the Minister that compelling circumstances affecting Australia's interests, or compassionate or compelling circumstances affecting an Australian citizen, permanent resident, or eligible New Zealand citizen, justify granting the visa within the three-year period. Clause 600.211 requires the applicant to genuinely intend to stay temporarily in Australia for the purpose of the visa.

The Tribunal found that the visa applicant was affected by the risk factor under PIC 4014(4) as she departed Australia on a Bridging visa E after not holding a substantive visa for more than 28 days. The Tribunal considered the submissions made by the review applicant regarding compassionate or compelling circumstances, including family medical issues, the impact on the review applicant's professional commitments in regional Australia, and the birth of a newborn child. The Tribunal concluded that these circumstances warranted further consideration and, accordingly, remitted the matter for reconsideration.