Xi (Migration)

[2021] AATA 3545

Xi (Migration) [2021] AATA 3545 (16 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Tingting Xi

VISA APPLICANT:  Mr Hongbin Xi

CASE NUMBER:  1922601

HOME AFFAIRS REFERENCE(S):          BCC2019/3631265

MEMBER:Antonio Dronjic

DATE:16 September 2021

PLACE OF DECISION:  Melbourne

DECISION: The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant satisfies Public Interest Criterion 4014 for the purposes of meeting cl 600.213(1) of Schedule 2 to the Regulations.

Statement made on 16 September 2021 at 10:18am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – risk factor – previous visa overstay and departure on bridging visa granted more than 28 days after substantive visa held – 3-year exclusion – bridging visa held at time of departure granted while holding another bridging visa granted within 28 days of holding substantive visa – criterion does not apply – decision made without hearing – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 600.213(1), Schedule 4, criterion 4014(4), (5)(b)(ii)(B)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 August 2019 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 22 July 2019. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of Public Interest Criterion (PIC) 4014 for the purposes of meeting cl 600.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The review applicant applied to the Tribunal on 14 August 2019 for review of the primary decision and with her application submitted a copy of the primary decision record.

4. At page 2 of the primary decision record, the delegate inter alia wrote:

   You departed Australia on 1/4/2019 as a Bridging Visa E holder having overstayed your visa by more than 28 days. I therefore find that you are affected by the risk factor mentioned in subclause (4).

5. The Tribunal notes that the delegate failed to consider PIC 4014(5) and make findings as to whether PIC 4014(4) apply in this case.

6. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant satisfies the requirements of PIC 4014 for the purposes of meeting cl 600.213(1) to the Regulations.

9. PIC 4014 prescribes as follows:

   (1) If the applicant is affected by either of the risk factors specified in subclauses (2) and (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.

   (2) Subject to subclause (3), a person is affected by a risk factor if the person left Australia after the expiry of a period of grace that applied to the person under section 13 of the Act as in force before 1 September 1994, being a period of grace that expired before 1 September 1994.

   (3) Subclause (2) does not apply to a person who:

   (a) applied for review by the Migration Review Tribunal or the Refugee Review Tribunal; and

   (b) left Australia within 7 days of being notified of the decision on the application for review.

   (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 an entry permit held by the person expired, as the case requires; 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 an entry permit held by the person expired, as the case requires; 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 or an entry permit held by the person expired, as the case may be.

10. Based on the evidence before it, including the visa applicant’s movement records, the Tribunal is satisfied that:

    ·     The visa applicant’s last substantive visa, Subclass 600, ceased on 3 February 2019.

    ·     On 13 February 2019, Mr Hongbin Xi was granted a Bridging visa E which remained valid until 6 March 2019.

    ·     On 26 February 2019, the Department waived condition 8503 that was imposed on the visa applicant’s Bridging visa.

    ·     On 3 March 2019, Mr Xi lodged an onshore application for a Visitor visa.

    ·     On 6 March 2019, he was granted a second Bridging visa E that remained valid until 1 April 2019.

    ·     On 1 April 2019, Mr Xi departed Australia.

11. Pursuant to PIC 4014(5)(ii)(B), the Tribunal finds that PIC 4014(4) does not apply in the present case.

12. The Tribunal finds that Mr Xi’s Bridging visa E held at the time of his departure (on 1 April 2019) was granted while he held another Bridging visa that was granted within 28 days (on 13 February 2019) after a substantive visa held by Mr Xi ceased to be in effect on 3 February 2019.

    DECISION

    The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant satisfies Public Interest Criterion 4014 for the purposes of meeting cl 600.213(1) of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member