WONG (Migration) - [2019] AATA 6314

WONG (Migration) [2019] AATA 6314 (27 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Yin Kwan WONG
VISA APPLICANT:  Ms Mui Lan LAM
CASE NUMBER:  1806067
DIBP REFERENCE(S):  BCC2017/4739536
MEMBER:Jane Marquard
DATE:27 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.
Statement made on 27 November 2019 at 8:16am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no compassionate or compelling circumstances – made four trips to Australia without finalising resting place of husband – departed Australia as unlawful non-citizen – overstayed previous visa by more than 28 days – new application made less than 3 years after departure – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213, Public Interest Criterion 4014

CASES
Bui v Minister for Immigration & Multicultural Affairs [1999] FCA 118
Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 204
Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211
Re Drake (No. 2) (1978-1980) 2 ALD 634
Thongpraphai v The Minister for Immigration & Multicultural Affairs [2000] FCA 1590

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration (the Department) on 29 January 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). The visa applicant is a woman from Hong Kong. The review applicant is her daughter, who is a permanent resident of Australia.
The visa applicant applied for the visa on 12 December 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not meet Public Interest Criterion 4014 (PIC 4014).
The review applicant appeared before the Tribunal on 19 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Yin Ang Wong, the sister of the review applicant. The Tribunal was informed that the visa applicant was unavailable to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant satisfies common criteria for the grant of a visitor visa contained within clause 600.213, which requires the visa applicant to satisfy a number of different public interest criteria, including Public Interest Criterion 4014 (PIC 4014).
Broadly speaking, PIC 4014 defines particular circumstances where an applicant is affected by a relevant ‘risk factor’. The defined ‘risk factors’ in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 6314
Decision Date: 27 November 2019

CaseChat Overview and Summary

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, brought before the Tribunal by the applicant, Ms. Wong. The core of the dispute revolved around whether the applicant met the requirements of Public Interest Criterion (PIC) 4014, which addresses certain risk factors associated with previous departures from Australia. The Tribunal was tasked with determining if the applicant satisfied the criteria for the visa grant, specifically in light of her immigration history.

The legal issues before the Tribunal were twofold: firstly, whether the applicant was affected by a risk factor as defined in PIC 4014(4), and secondly, if she was, whether she met either of the alternative criteria set out in PIC 4014(1). PIC 4014(4) defines a risk factor as departing Australia as an unlawful non-citizen or as the holder of certain bridging visas. If a risk factor is present, PIC 4014(1) requires either that the application be made more than three years after departure, or 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 that three-year period.

The Tribunal found that the applicant had departed Australia on 4 August 2017 as an unlawful non-citizen, having overstayed her previous visa by more than 28 days. This meant she was affected by the risk factor in PIC 4014(4), and none of the exceptions in PIC 4014(5) applied. The Tribunal further determined that the current visa application, lodged on 12 December 2017, was made less than three years after her departure, thus failing to meet the first alternative criterion in PIC 4014(1)(a). Consequently, the Tribunal concluded that the applicant did not satisfy PIC 4014, and therefore did not meet the common criteria for the grant of a Visitor visa under clause 600.213.

The Tribunal affirmed the delegate's decision not to grant the applicant a Visitor (Class FA) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant satisfies common criteria for the grant of a visitor visa contained within clause 600.213, which requires the visa applicant to satisfy a number of different public interest criteria, including Public Interest Criterion 4014 (PIC 4014). Broadly speaking, PIC 4014 defines particular circumstances where an applicant is affected by a relevant ‘risk factor’. The defined ‘risk factors’ in PIC 4014 include circumstances where an applicant has previously departed Australia as an unlawful non-citizen of the holder of a particular bridging visa. Where the applicant is affected by a ‘risk factor’ as defined in PIC 4014(4), he or she is required to satisfy one of two alternate criteria set out in PIC 4014(1) to meet PIC 4014. PIC 4014(1)(a) requires, as a first alternative, that the application has been made more than 3 years after the date of the relevant departure from Australia. Alternatively, PIC 4014(1)(b) requires that the decision maker is satisfied that, in the particular case, there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, justify granting the visa within 3 years after the departure. PIC 4014 is extracted in the attachment to this decision.Is the visa applicant affected by a risk factor in PIC 4014? Based on the information before the Tribunal, including the delegate’s decision record submitted by the review applicant with the review application, the visa applicant last departed Australia on 4 August 2017. She had at that time overstayed her FA 600 visa by more than 28 days as her visa had expired on 30 June 2017. She therefore departed Australia as an unlawful non-citizen. The Tribunal confirmed this with the review applicant at the hearing. The Tribunal finds that as the visa applicant’s visa expired on 30 June 2017 she did not leave the country within 28 days of her last substantive visa. Based on the information before it, the Tribunal finds that the visa applicant last departed Australia without a visa more than 28 days after her visa expired. The Tribunal accordingly finds that none of the exceptions in PIC 4014(5) apply to the visa applicant. Given the above, the Tribunal finds the visa applicant is affected by the risk factor in PIC 4014(4). Was the visa application made more than 3 years after the applicant’s departure from Australia: PIC 4014(1)(a) ? The Tribunal finds that the visa applicant last departed Australia on 4 August 2017 and she applied for the visa which is the subject of this review on 12 December 2017, less than 3 years after her departure. The Tribunal confirmed this with the review applicant at the hearing. As the visa application was made less than 3 years after the visa applicant’s departure from Australia, the Tribunal therefore finds that the visa applicant does not meet PIC 4014(1)(a). Are the waiver provisions in PIC 4014(1)(b) met?

Decision

Reasons for decision

On the basis of the above, the applicant does not satisfy PIC 4014 for the purposes of cl.600.213.DECISION The Tribunal affirms the decision not to grant the applicant a Visitor (Class FA) visa.Jane MarquardMemberATTACHMENTMigration Regulations 1994Schedule 4ATTACHMENT - PIC 40144014(1) If the applicant is affected by the risk factor specified in subclause (4):(a) the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or(b) the Minister is satisfied that, in the particular case:(i) compelling circumstances that affect the interests of Australia; or(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa within 3 years after the departure.(4) Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:(a) an unlawful non-citizen; or(b) the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.(5) Subclause (4) does not to apply to a person if:(a) the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect; or(b) a bridging visa held by the person at the time of departure was granted:(i) within 28 days after a substantive visa held by the person ceased to be in effect; or(ii) while the person held another bridging visa granted:(A) while the person held a substantive visa; or(B) within 28 days after a substantive visa held by the person ceased to be in effect.

Ratio Decidendi

Legal Principle Established

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