Tran (Migration)

This matter concerned an application for review of a decision to refuse a Visitor (Class FA) visa subclass 600. The review applicant, Ms Thi Nho Nguyen, sought to visit her daughter, an Australian citizen, and assist with the care of her four children, one of whom has a neurodevelopmental disorder. The Tribunal was required to determine whether Ms Nguyen met Public Interest Criterion (PIC) 4014, which addresses previous visa overstays.

The primary legal issue before the Tribunal was whether Ms Nguyen satisfied PIC 4014, given that she had previously departed Australia as an unlawful non-citizen more than 28 days after her last substantive visa expired. If she was affected by a risk factor under PIC 4014, the Tribunal had to consider whether the visa application was made more than three years after her departure, or if there were compassionate or compelling circumstances justifying the grant of the visa.

The Tribunal found that Ms Nguyen was affected by a risk factor under PIC 4014 as she had overstayed her visa. The application was made on 26 September 2018, and she departed Australia on 25 March 2018, meaning the three-year period under PIC 4014(1)(a) had not yet elapsed. The Tribunal then considered whether there were compassionate or compelling circumstances affecting the interests of an Australian citizen that justified granting the visa. The Tribunal concluded that the decision under review should be affirmed.