WONG (Migration)

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.