The Tribunal has no jurisdiction in respect of the secondary visa applicant.

MIGRATION - Visitor (Class FA) visa - Subclass 600 (Visitor) - genuine temporary entrant - remainder of family already in Australia - employment in home country - limited commitments in India - limited income - decision under review affirmed

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth), ss 65, 338

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231-600.233, 600.612; Schedule 8 Condition 8101

Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182

City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135

Dyankov & Ors v Minister for Immigration & Anor [2016] FCCA 2167

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144

Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at 64

1. This is an application for review of a decision made by a delegate of the Minister on 5 March 2024 to refuse to grant the visa applicants' Visitor (Class FA) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicants are Indian residents and citizens who are married to each other. They have one child and live in Bhiwandi, Rajasthan.
3. The visa applicants applied for the visas on 1 February 2024, sponsored by the primary review applicant, who is the brother of the primary visa applicant, and the person whom they intended to visit. At the time the visa applications were lodged, Class FA contained one subclass, Subclass 600 (Visitor), with several different streams. In this case the applicants applied for the visas seeking to satisfy the primary criteria in the Sponsored Family stream.
4. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.
5. The delegate refused to grant the primary visa applicant's visa on the basis that he had not provided sufficient, compelling evidence that he was a genuine temporary entrant for the purposes of cl 600.211. The secondary visa applicant's application was rejected on the basis that they were not a relative of the sponsor or a person who had been granted a visitor visa for the purposes of cl 600.233.
6. The review applicant sought a combined review of the refusals of both the primary and visa applicants' applications.
7. The review applicant appeared before the Tribunal on 25 September 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants. The Tribunal has considered all the evidence and submissions made to it before and after the hearing along with the material in the department file.
8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed**.**

Jurisdiction in respect of the Secondary Visa Applicant

1. The Tribunal addresses the secondary visa applicant's application first as it is not satisfied that it has jurisdiction in respect of that review. That is because the Act and the Regulations operate to limit the class of family members who may be sponsored under the visa applied for. The secondary visa applicant, as the sister-in-law of the sponsor (the review applicant), must, as required by cl 600.233, be related to a person holding a valid sponsored family visa. As her husband, the primary visa applicant, falls outside the scope of relevant Schedule.
2. The Tribunal's review jurisdiction in respect of refusals to grant Sponsored Family visas to non-citizens who are not members of the nuclear family of the sponsor is conferred by s 338(5) of the Act.[1] That provision states:[2]

"A decision to refuse to grant a non-citizen a visa is a reviewable migration decision if ... the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by ... an Australian citizen."

3. Considering the section textually, the Tribunal notes that: first, the words "was sponsored" reflect a past factual condition; and second, the phrase "as required by a criterion" past tense factual proposition. In practice the provision, first, picks up and restricts the scope of 338(5) to the criterion of the sponsored family stream in Schedule 2 (notably cl 600.232) of the Regulations.[3] Second, it limits the category of eligible decisions to those where sponsorship by a person (e.g., an Australian citizen) is not only present at the time of decision but was the form of sponsorship which was required by a criterion of that Schedule.[4] A criterion that does not apply to a person cannot be said to "require" them to meet it, and sponsorship outside the prescribed stream is not the sponsorship 'required' by the clauses of that stream. The structure of s 338 confirms that review jurisdiction is confined to specific visa types and anterior conditions,[5] which for s 338(5) means the existence of a valid sponsorship under cl 600.232 rather than any claim of sponsorship.
4. The relevant conditions for jurisdiction under s 338(5) set out above, are, then, compound: the applicant must fall within 600.232(2), and where not a relative, the specific conditions set out in cl 600.233 must exist.[6] The Tribunal takes this to mean that a decision is only reviewable under s 338(5) where it relates to a non-citizen who has applied for a Sponsored Family (Visitor (Class FA)) visa but is not a relative of the named sponsor, where:
   • Another person who is a relative of the sponsor has already been granted a visa in the Sponsored Family stream (the grantee);
   • The applicant is a member of the same family unit as the grantee, and
   • That person was sponsored by the sponsor in relation to the grantee's visit.
5. The Tribunal's role in confirming these conditions are met is limited to a binary assessment about the existence of facts whose existence precedes and is anterior to the exercise of review power conferred by s 338(5).[7] That is because the decision to grant a visa is not a matter within the discretion of the Tribunal in the excise of its review functions; only the Department can grant a visa to the other person. In the Tribunal's view that makes the above stated criteria jurisdictional facts which must exist for the relevant decision to be reviewable.[8] In simple terms, even if the Tribunal remitted the first visa applicant's decision that does not amount to a grant of a visa, and so the secondary visa applicant would not, for the purposes of the review meet the criteria of cl 600.232; so that the former decision of the Tribunal has no bearing on the latter. From a legislative sense it is clear the Tribunal was not intended to have jurisdiction where the present jurisdictional facts exist in respect of a secondary applicant.
6. At the hearing the Tribunal explained the jurisdiction to the applicants. The review applicant acknowledged the issue but had no substantive submissions to make. The review applicant was invited to make any post-hearing submissions should he wish to but did not do so.
7. Having reviewed the material before it, the Tribunal is satisfied that no grantee meeting the requirements of 600.233 has at any time been granted a relevant visa. That being the case, the other interrelated jurisdictional facts set out above[9] also do not exist. The Tribunal therefore has no jurisdiction to review the refusal of the secondary visa applicant's visa application under s 338 of the Act.
8. If the Tribunal is incorrect, and for the avoidance of doubt, the Tribunal is satisfied that if it did have jurisdiction, the secondary visa applicant would not meet the criteria of cl 600.232 given the primary visa applicant does not hold a valid visa for the purposes of that provision and for the same reasons set out by the delegate in the relevant primary decision.

1. The issue in this case is whether cl 600.211 is met in respect of the primary visa applicant. That provision requires the Tribunal to be satisfied that the primary visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether he has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.
2. In the present case, the primary visa applicant seeks the visas for the purposes of visiting his brother who is an Australian citizen. He intends to bring his wife and child for a period of around three weeks to do so. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.
3. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)). The primary visa applicant has not previously visited Australia. A prior application was refused in 2022. On the evidence before the Tribunal the applicant travelled to Thailand once and complied with the conditions of that visa. The Tribunal treats this immigration history as neutral; there is no adverse compliance, but also no demonstration of complying with an Australian visa or any visa involving a visit to see close family outside of the visa applicant's country of origin.
4. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.612):
   • 8101 - must not work in Australia
   • 8201 - must not engage in study or training in Australia for more than 3 months
   • 8503 - not entitled to a substantive visa, other than a protection visa, while remaining in Australia
   • 8531 - must not remain in Australia after end of permitted stay.
5. Both applicants stated that the primary visa applicant would comply with these conditions. The Tribunal however must look to all the facts and circumstances in determining whether there is a genuine intention to comply.
6. The Tribunal notes the counterpoints in the family dynamic between the review applicant and primary visa applicant. They are brothers with no other siblings, and their parents are currently in Australia on family sponsored visas valid for 12 months; having previously visited and departed lawfully. The review applicant resides with his spouse and child in Victoria and is expecting another child in December 2025. The primary visa applicant's immediate family (wife and child) live with in India, but were included in his original application and his evidence at the hearing was that he would bring them with him to Australia.
7. The Tribunal accepts the applicants' family is close and that the separation between the brothers causes emotional hardship. The family's pattern of travel, however, means that, during the primary visa's proposed visit his entire entire nuclear family, including his spouse, child, brother and parents would be in Australia. That configuration removes most home-country anchors and weighs against an incentive to return on familial grounds.
8. The visa applicant lives in Bhiwadi, Rajashtan. He gave evidence of five to six years' employment with a manufacturing company, residing in company housing. He said that he assists on family agricultural land about five hours away. The land and the family home are registered in his father's name who is alive and, according to the evidence continues to manage the property. The Tribunal considers it implausible that the primary visa applicant regularly visits and works on the property, given how extensive a round trip it would be to get there, and that he has work and family commitments to attend to at his home.
9. An affidavit produced after the hearing confirms the existence of the agricultural land and describes a customary inheritance process by which property will eventually pass to both sons. While the Tribunal accepts that this is a genuine explanation of family practice, it establishes only an anticipated entitlement. The visa applicant holds no current legal or beneficial interest from the land and derives no independent income from it. The Tribunal further notes that the visa applicant's father is in Australia for up to a year, indicating that the property can be managed from overseas. This weighs against treating the property - even if it was the visa applicant's own, which it is not - as constituting a requirement for the visa applicant to return.
10. The post-hearing materials contained a Chartered Accountant's certificate which estimates that the family's total net worth is approximately AUD $465,000. Most of that amount reflects immovable assets owned by the father. The certificate therefore evidence family wealth, but not assets controlled by the applicant personally. The Tribunal also notes that, consistent with the affidavit both sons will inherit, and the review applicant has taken an immigration pathway to citizenship in Australia indicating that the existence of family assets is not an incentive to remain in India. The Tribunal does not weigh the family assets as a positive inducement to return.
11. The post-hearing materials contained an unsworn email that states that the applicant is entitled to leave. The email is brie but appears to be genuine. The Tribunal accepts that the applicant is employed and that his employer permitted a short absence. The delegate found that the primary visa applicant had not provided sufficient evidence of savings or income from his employment. The Tribunal notes payslips and bank statements were provided to the department and is satisfied at the time the matter was before the delegate there was evidence of employment income. However, that income is relatively modest salary of between ₹33,000 to ₹41,000 per month, or an average of around AUD $8,000 a year. The Tribunal also notes that the applicant must live in company accommodation 10 hours round trip from his family's property in Haryana. Given the modest wage, this would objectively be a substantial inconvenience to the visa applicant and his family. That suggests the employment is a practical necessity rather than something which would be an incentive to return.
12. When considered against the relatively modest wage, the Tribunal is not satisfied the visa applicant's employment amounts to a strong financial incentive to return to India when compared with the material advantages and family support in Australia. The applicant's brother in Australia is a settled citizen with substantially higher income and means to support the visa applicant and his family. Indeed, in the original application and in all subsequent submissions the brothers indicated it would be the review applicant who would cover all the costs incurred with the visa applicants' visit to Australia. The Tribunal considers the financial circumstances create a much stronger pull factor towards Australia than to India. Even temporary causal work or informal support from relatives would far exceed the applicant's normal monthly earnings. The Tribunal finds that the applicant's financial circumstances and employment offer minimal assurance of return.
13. The Tribunal notes a relatively strong savings position recorded in the financial materials submitted to the department, between AUD $13000-$16,000. The Tribunal accepts that this indicates some financial prudence by the visa applicant. However, these funds are liquid and accessible internationally. They are not invested in a business, mortgage, or property requiring the applicant's personal presence. Accordingly, they do not constitute an incentive to return. Taken together, the applicant's modest salary, distant and no-proprietary connection to family land and accessible savings points to financial mobility rather than permanency. They are not, in the Tribunal's view, incentives to return to India.
14. The Tribunal does not consider that there are other relevant matters for the purposes of cl 600.211(c) that are not already considered for the purposes of cl 600.211(b).
15. Having regard to all the matters set out in cl 600.211(a)-(c), the Tribunal is not satisfied that the primary visa applicant genuinely intends to stay temporarily in Australia. The Tribunal accepts that the desire to visit family is genuine and understandable, but concludes that the objective indicators, especially the whole-family presence in Australia, but also the primary visa applicant's financial and employment circumstances, lack of present property or business ties to India, and strong comparative advantages available to him in Australia collectively outweigh the expressions of temporary intention.
16. For the above reasons the finds that the primary visa applicant has not met the requirements of cl 600.211.

1. The Tribunal affirms the decision not to grant the primary visa applicant a Visitor (Class FA) visa. The Tribunal has no jurisdiction in respect of the secondary visa applicant.

[1] The only other relevant sub-section applicable to the review of a sponsored family visa is 338(7) but that is restricted to non-citizens who are visiting a "a parent, spouse, de facto partner, child, brother or sister of the non-citizen". As the visa and review applicant are in-laws they fall outside the scope of the provision.

[3] The specific conditions set out for this stream under 600.232 all require sponsorship by different members of the Australian community, including an Australian citizen. In the tourist stream the requirement for sponsorship is at the Minister's discretion.

[4] This is consistent with the finding of the Full Federal Court that the existence of sponsorship is a factual precondition for the exercise of Tribunal jurisdiction under other provisions of s338 mandating sponsorship. Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, [100]-[113] (Katzmann, Robertson and Griffiths JJ.

[5] e.g. the 338(7)(b) requirement that the particulars of the relative are specified in the application.

[6] This is consistent with the finding of the Full Federal Court that the existence of sponsorship is a factual precondition for the exercise of Tribunal jurisdiction under other provisions of s338 mandating sponsorship. Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, [100]-[113]; See also Dyankov & Ors v Minister for Immigration & Anor [2016] FCCA 2167, (Hartnett J) in which the Tribunal was found not to have jurisdiction where a nomination application must actually be on foot, or if it was refused there must be a review on foot at the time of the review. The Tribunal considers that reasoning to extend to excluding jurisdiction where there cannot be a valid nomination at all because of an express exclusion in the schedule that is enlivened by the facts.

[7] That is because the decision to grant a visa is not a matter within the discretion of the Tribunal in the excise of its review functions or otherwise. Only the Department can grant a visa to the other person.

[8] Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144, 179 [56]-[57] (French CJ); City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 148 [28] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at 64 [39]- [42] (Spigelman CJ)

[9] See paragraph ‎12.