MIGRATION - Visitor (Class FA) visa - Subclass 600 (Visitor) - tourist stream - visiting mother - mother's age, physical health and dementia - litigation supporter appointed - genuine temporary entrant and compliance with conditions - incentives to depart or remain - wife and children, house and land, investments, savings and employment - previous compliant travel to another country - direct and credible evidence - decision under review set aside and remitted

Administrative Review Tribunal 2024 (Cth), s 67(1)(b), (1A), (1B), (2), (3)

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222, 600.611(3)

1. This is an application for review of a decision to refuse to grant the applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (Act).
2. Mr Tran applied for the visa on 22 September 2025 for the stated purpose of visiting his mother who was unwell. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.
3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.
4. The delegate refused to grant the visa on the basis that the Mr Tran did not meet cl 600.211 because they were not satisfied that the applicant genuinely intended a temporary stay, as the incentives to remain in Australia were considered to outweigh the demonstrated incentives to return.
5. In reaching that conclusion, the delegate reasoned the applicant's employment had commenced relatively recently, which about six months prior to the delegate's decision, and thus did not demonstrate a stable and sustained period of employment that would serve as a strong incentive for the applicant to depart Australia. The delegate noted that whilst the applicant provided evidence of a term deposit to demonstrate financial capacity, the delegate accorded this little weight because the delegate was not satisfied that the funds were the applicant's own personal funds or genuinely available to him. Consequently, the delegate was not satisfied that the applicant had demonstrated strong economic incentives to return home.
6. The delegate, while acknowledging the applicant has undertaken some international travel, noted that the applicant has not travelled to countries with 'similarly significant incentives to remain' (such as those with comparable economic standing to Australia). The delegate viewed compliance with immigration laws in such countries as a key indicator of a genuine visitor, and the lack of such history was weighed against the applicant.
7. The delegate acknowledged the compassionate purpose of the visit, namely, to see the Mr Tran's mother, Mrs Nguyen, who has health problems. The delegate also acknowledged evidence that the Mr Tran owned land in Vietnam and had family ties outside Australia.
8. However, the delegate concluded that these positive factors were outweighed by the concerns regarding employment, financial history, and travel history. The delegate noted that the onus is on a visa applicant to demonstrate sufficient incentive to depart Australia, rather than merely a valid reason to enter.

1. Mrs Nguyen applied for review of the decision to refuse to grant Mr Tran a visitor visa. Mrs Nguyen is Mr Tran's mother.
2. The review application was heard on 21 January 2026. The review applicant, Mrs Nguyen, attended the hearing, as did the visa applicant, Mr Tran. Ms Tran Thi Ngoc Phuong, Mrs Nguyen's daughter and Mr Tran's sister also attended the hearing. The applicants were represented by Mr Nguyen, a solicitor, at the hearing who made submissions.
3. In response to a direction issued by the Tribunal, the applicants provided medical evidence. The medical evidence comprises reports provided by Dr Ernest Tam, Consultant Physician and Geriatrician, dated 23 November 2024 and 5 April 2025. Dr Tam's assessment concerns the health and capacity of the review applicant.
4. Dr Tam reports that Mrs Nguyen suffers from mixed type dementia, having been diagnosed with Alzheimer's Disease in 2015. The reports note a deterioration in her condition over the three to four years preceding November 2024. Mrs Nguyen demonstrates short-term memory impairment, disorientation, impaired comprehension, and distractibility. A Mini Mental State Examination (MMSE) conducted on 28 September 2024 returned a score of 21/30. I understand that a MMSE score of 23 or lower indicates cognitive impairment.
5. Mrs Nguyen presents with a high risk of falls. Dr Tam attributes this to multiple physiological factors, including a subcortical gait, impaired righting reflexes, bilateral osteoarthritis of the knees, and kyphoscoliosis which has shifted her centre of gravity. While she walks independently, her gait is unsteady. Dr Tam also opined that a DEXA scan suggested that Mrs Nguyen was at an increased risk of fracture upon minimal trauma.
6. Mrs Nguyen has several co-morbidities, including Type 2 Diabetes Mellitus, hypertension, hyperlipidaemia, bilateral renal cysts, and liver impairment marked by elevated enzymes. She is of a non-English speaking background and resides in a rented property with her husband, son, and daughter.
7. In November 2024, Dr Tam recommended increasing Mrs Nguyen's Aricept dosage to 10mg daily and referred her to the Aged Care Assessment Team for a Home Care Package. Upon review on 5 April 2025, Dr Tam opined that there had been no deterioration in Mrs Nguyen's cognitive or medical conditions, and she remained independent in mobility. The prescribed medication regime continued.

1. In view of the medical evidence, at the commencement of the hearing on 21 January 2026, I raised whether it was necessary to appoint a litigation supporter for Mrs Nguyen. Mr Nguyen submitted that such an order was appropriate and that Ms Phuong, Mrs Nguyen's daughter, would consent and be the appropriate person to be appointed.
2. The Tribunal has power to appoint a litigation supporter for a person if the Tribunal considers that the person does not have decision making ability and the appointment is necessary taking into account the availability and suitability of other measures that would allow the party to participate in the proceeding.[1] The power to appoint a litigation supporter is discretionary, as indicated by the inclusion of the word 'may' in s 67(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
3. Section 67(1A) of the ART Act creates a presumption that a party has decision-making ability. Section 67(1B) provides that this presumption is not rebutted solely by the existence of a disability. It is therefore necessary to assess the specific evidence of the party's capacity before making an order for a litigation supporter.
4. At the time of the Tribunal hearing, Mrs Nguyen was 82 years old. As indicated, I have before me medical evidence from Dr Ernest Tam, Consultant Physician and Geriatrician, dated 23 November 2024 and 5 April 2025.
5. The evidence establishes that Mrs Nguyen suffers from Mixed Type Dementia, with a background of Alzheimer's Disease diagnosed in 2015. Dr Tam records a deterioration in her condition over the three to four years preceding late 2024.
6. Dr Tam's clinical findings indicate significant cognitive deficits. Mrs Nguyen is described as 'mentally slow with impaired comprehension'. Mrs Nguyen is said to demonstrates short-term memory impairment, disorientation, and a tendency to get lost. The MMSE conducted on 28 September 2024 returned a score of 21/30, indicating cognitive impairment.
7. To participate effectively in this review, a party must be able to understand the nature of the application, give instructions, and comprehend the implications of the Tribunal's decision. The evidence that Mrs Nguyen suffers from impaired comprehension, disorientation, and distractibility compels the conclusion that she lacks the requisite capacity to engage with the legal and factual complexities of this matter.
8. Accordingly, I find that the presumption in subsection (1A) is rebutted. I find Mrs Nguyen does not have decision-making ability for the purposes of subsection (1)(a).
9. Section 67(1)(b) requires me to consider whether the appointment is necessary, taking into account other available measures.
10. Given the diagnosis of dementia and the specific finding of 'impaired comprehension', adjustments to the Tribunal's procedure, such as simplified explanations or breaks in the hearing, would be insufficient to cure the deficit in capacity. The difficulties that Mrs Nguyen would face are not ameliorated by the presence of an interpreter, in fact, the need to conduct the hearing through an interpreter may well further undermine Mrs Nguyen's capacity to participate in the proceeding, however that is not something about which I consider it is necessary to make a specific finding about given the medical evidence before me. In the circumstances, I am satisfied that Mrs Nguyen requires a person to stand in her place to make decisions and provide instructions.
11. Therefore, I consider the appointment of a litigation supporter is necessary to allow Mrs Nguyen to participate in the proceeding.
12. In appointing a person to act as litigation supporter, I must take into account the party's will and preferences**[2]** and be satisfied that the proposed appointee meets the eligibility criteria contained in s 67(3) of the ART Act.
13. The medical evidence records that Mrs Nguyen attended her consultation with her daughter, Ms Phuong. Ms Phuong was also accompanying her mother to the hearing. This history of reliance suggests that Mrs Nguyen's preference would likely be for her daughter to assist her. I further make the following findings:

(a) there is no evidence to suggest the proposed appointee is under 18 years of age (subsection (3)(a));

(b) there is no apparent conflict of interest (subsection (3)(b));

(c) Ms Phuong consents to the appointment (subsection 3(c)); and

(d) I am satisfied the proposed appointee can act in a manner that promotes the personal and social wellbeing of the party (subsection (3(d)).

1. I find there is no reason why Ms Phuong cannot be appointed as litigation supporter.
2. For those reasons, I am satisfied that the review applicant does not have decision-making ability and that the appointment of a litigation supporter is necessary. Accordingly, I made an order appointing Ms Tran Thi Ngoc Phuong, Mrs Nguyen's daughter who lives in Australia, as the litigation supporter for the review applicant. I propose to make that order nunc pro tunc, that is as operating from the date the review application was lodged.

1. The issue in this case is whether cl 600.211 is met, which requires that I am satisfied:

(a) the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject;

(b) whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and

(c) and any other relevant matter.

1. I must also consider whether Mr Tran 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 must be subject are as follows (cl 600.611(3)):

(a) 8101 - must not work in Australia

(b) 8201 - must not engage in study or training in Australia for more than 3 months.

1. Whilst clause 8101 and 8201 must be imposed, the following conditions may also be imposed:

(a) 8501 - maintain adequate health insurance

(b) 8503 - not entitled to a substantive visa, other than a protection visa, while remaining in Australia

(c) 8531 - must not remain in Australia after end of permitted stay.

1. In the present case, Mr Tran seeks the visa for the purposes of visiting his elderly mother who is quite unwell. I am satisfied that this is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
2. In considering whether a Mr Tran genuinely intends to stay temporarily in Australia for this purpose, I 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)). Whilst the applicant has complied with immigration laws in other countries, Mr Tran has not held a substantive visa for Australia.
3. At the hearing, Mr Tran gave evidence regarding his personal circumstances and his intentions regarding the proposed visit to Australia. He stated that his primary purpose in seeking the visa is to visit his mother.
4. The applicant confirmed that he resides in Vietnam with his wife and their three children, aged 18, 13, and 9. He lives with his family in his own home. Regarding his economic circumstances, Mr Tran gave evidence that he continues to work in Vietnam and regards his employment as stable. He stated that his total earnings are approximately 25,000,000 VND and that he holds additional assets comprising land which he rents out and rubber trees, in addition to his family home.
5. Mr Tran indicated that, if granted the visa, he intends to visit his family for a few weeks before returning to Vietnam. He confirmed that he would have no need, or desire, to remain in Australia for longer than three months. He expressly denied any intention to undertake work or study while in Australia, or to apply for any further visa, including a protection visa, once onshore.
6. When asked if there was any reason he would not return to Vietnam, Mr Tran stated there was 'no reason' to remain for an extended period. He identified his wife, children, house, and stable work as the specific factors ensuring his return. Regarding his travel history, he noted that he had previously travelled to Singapore, though he observed that this occurred a long time ago. He intends to stay with his family during his visit to Australia.
7. I accept the oral evidence of Mr Tran regarding his intentions. When questioned about his proposed conduct in Australia, Mr Tran gave clear and consistent evidence that he intends to visit for a period of a few weeks to see his family, specifically his elderly mother, and then return to Vietnam. He expressly denied any intention to undertake work or study in Australia. He further confirmed his understanding that a visitor visa would not permit him to work and stated that he would not seek to apply for any other visa, including a protection visa, once onshore.
8. I observed Mr Tran to be a candid witness. His evidence regarding his knowledge of the visa conditions was direct and credible. There is no evidence before the Tribunal, such as a history of non-compliance, that would suggest he intends to breach the conditions endorsed on the visa. Accordingly, I am satisfied that he intends to comply with conditions 8101 and 8201.
9. In assessing whether the applicant genuinely intends to stay temporarily in Australia, I have weighed the incentives for him to remain in Australia against the incentives for him to return to Vietnam.
10. I place significant weight on the applicant's strong family ties to Vietnam. Mr Tran resides with his wife and three children, aged 18, 13, and 9. The presence of his immediate nuclear family, particularly his minor children who are dependent upon him, constitutes a powerful incentive to return.
11. Regarding his economic circumstances, the applicant gave evidence that he continues to be employed in Vietnam and regards his employment as stable. I note the delegate's concern that this employment had only commenced in March 2025. However, by the date of this hearing, the applicant has maintained this employment for a sustained period. Furthermore, Mr Tran gave evidence, which I am prepared accept, that he earns approximately 25,000,000 VND and holds assets including a home, land for rent, and rubber trees. I am satisfied that he has established financial and property ties to his home country that act as strong incentive.
12. I acknowledge the general economic disparity between Vietnam and Australia, which can create an incentive for migration. I also acknowledge the applicant's strong desire to visit his mother, Ms Nguyen, who suffers from significant health issues including dementia. However, Mr Tran's evidence was that his purpose is a short-term visit to provide family support, not to settle.
13. The applicant has a history of compliant travel to Singapore. While the delegate placed limited weight on this due to the passage of time, I consider it a neutral to positive factor. It demonstrates that the applicant has previously travelled internationally and returned without incident.
14. Weighing these factors, I find that the strength of the applicant's ties to his wife, children, and established home in Vietnam outweighs the incentives to remain in Australia. I am satisfied that his expression of intent to visit his mother for a short period is genuine.
15. I have also considered whether the applicant would comply with the conditions which may be imposed and, in view of his evidence which I accept, I am satisfied that if the discretionary conditions were to be imposed that he would comply with them.
16. I have also considered all other relevant matters (cl 600.211(c)). There are no other relevant matters that I consider ought be weighed other than those which I have already identified.
17. For the above reasons I am satisfied that Mr Tran genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and I find that the requirements of cl 600.211 are met.

1. The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
   • cl 600.211 of Schedule 2 to the Regulations.

[1] Administrative Review Tribunal Act 2024 (Cth), s 67(1).

[2] Administrative Review Tribunal Act 2024 (Cth), s 67(2).