Xi (Migration)

The matter concerned an application for a Visitor (Class FA) visa, Subclass 600, made by Mr Hongbin Xi. The dispute arose from the Department's assessment of Mr Xi's eligibility under Public Interest Criterion (PIC) 4014, which relates to previous visa overstays and departures from Australia. The decision under review was made by the Migration Review Tribunal.

The primary legal issue before the Tribunal was whether Mr Xi was affected by the risk factors specified in PIC 4014, which could lead to a 3-year exclusion period from Australia. Specifically, the Tribunal had to determine if Mr Xi's departure from Australia, while holding a bridging visa, fell within the exceptions to the risk factors outlined in subclauses (4) and (5) of PIC 4014.

The Tribunal reasoned that PIC 4014(4) applies if a person leaves Australia as an unlawful non-citizen or the holder of certain bridging visas. However, PIC 4014(5) provides exceptions. The Tribunal found that Mr Xi's last substantive visa ceased on 3 February 2019. He was then granted a Bridging visa E on 13 February 2019, which was within 28 days of his substantive visa ceasing. Subsequently, on 6 March 2019, he was granted a second Bridging visa E, while he still held the first bridging visa. The Tribunal concluded that this second bridging visa, held at the time of his departure on 1 April 2019, was granted in accordance with PIC 4014(5)(b)(ii), as it was granted while he held another bridging visa that was itself granted within 28 days of his substantive visa ceasing. Therefore, Mr Xi was not affected by the risk factor in PIC 4014.

The Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, with the direction that Mr Xi satisfies PIC 4014 for the purposes of meeting clause 600.213(1) of Schedule 2 to the Regulations.