Xiong v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicants sought judicial review of a decision made by the Administrative Appeals Tribunal concerning a Regional Sponsored Migration Scheme visa. The core of the dispute revolved around the interpretation of Public Interest Criterion (PIC) 4013, specifically the commencement date of the three-year period following a visa cancellation. The applicants argued that this period should commence from the date of the Tribunal's decision, while the Minister contended it should run from the date of the original delegate's decision to cancel the visa. The matter was heard by Judge Kendall in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Tribunal had committed jurisdictional error in its interpretation of PIC 4013. Specifically, the Court had to determine when the three-year "preclusion period" under PIC 4013 commences. The applicants contended that if the period began from the Tribunal's decision, they would not meet the criterion, whereas if it commenced from the delegate's decision, they would.

The Court reasoned that PIC 4013 does not prevent an applicant from making a visa application, unlike section 48 of the Migration Act 1958 (Cth). Instead, PIC 4013 imposes a restriction on the *granting* of a visa within three years of a cancellation, unless specific compelling circumstances exist. The Court found that the Tribunal's approach, which considered the delegate's decision date as the commencement of the three-year period, was not a jurisdictional error. The Tribunal had correctly noted that more than three years had passed since the delegate's decision to cancel the applicant's visa on 16 February 2017, meaning the applicants would not be affected by PIC 4013.

The application for judicial review was dismissed.