MIGRATION - Visitor (Class FA) visa - Subclass 600 (Visitor) - tourist stream - genuine temporary entrant and compliance with conditions - teenager resident in Australia from very young age - family, friends and education in Australia and minimal ties to home country - parents' visa histories and intentions for applicant - father's application for ministerial intervention after working visa refused and mother's intention to apply for partner visa with new partner, with applicant as dependant - department's procedures advice manual - intention to apply for further visa does not necessarily indicate not genuine temporary entrant - unexplained delay in issuing bridging visa - consent to decision without hearing - decision under review remitted

Migration Act 1958 (Cth), s 65

Administrative Review Tribunal Act 2024 (Cth), s 106(3)(c)

Migration Regulations 1994 (Cth), Schedule 2, cl 600.211

G v MIBP [2018] FCA 1229

1. This is an application for review of a decision made by a delegate of the Minister on 10 August 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 1 August 2023. 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) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the 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 applicant did not meet cl 600.211 because the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia. The delegate considered the applicant's previous immigration and travel history and concluded that the applicant intended 'something more akin to de-facto residence in Australia' than a genuine temporary visit.
5. The applicant sought review of that decision on 31 August 2023 in the then Administrative Appeals Tribunal (AAT). They did not provide any additional documents at the time of their application for review.
6. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
7. The applicant was represented in relation to the review.
8. For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.

1. The copies of the applicant's birth certificate and biometric information in her Greek passport provided with her application for the visa indicate that the applicant is 13 years old and born in Chios, Greece. She acquired Greek citizenship on 15 July 2011. Copies of their biometric information from the passports provided to the Tribunal indicate that the applicant's mother and father are also Greek citizens. Movement records show the applicant first arrived in Australia on 14 February 2012 and has only been out of the country from September to October 2016 and from July 2022 to January 2023.

Request for a decision to be made without holding a hearing

1. In a letter sent on 19 March 2025, the Tribunal notified the applicants that a hearing by video conference in relation to their application had been scheduled for 29 April 2025. That letter asked the applicants to provide the enclosed 'Response to hearing notice' form within 7 days of receipt of the letter and to provide all further documents the applicants intended to rely on to support their case by 22 April 2025. That letter also noted that the applicants could use the enclosed 'Response to hearing notice' form to request the Tribunal make a decision without a hearing. The Tribunal's letter continued:

please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.

2. On 28 April 2025, the applicant's representative provided the Tribunal with a document setting out the applicant's response to refusal ground and the outcome requested from the Tribunal. That document also stated:

The Applicant and her family respectfully request that the Tribunal determine this matter "on the papers" without the need for a formal hearing, given the minor status of the applicant (13 years old) and the circumstances outlined below.

3. The circumstances outlined in the document included the applicant's:
   1. significant connection to Australia, having attended childcare and preschool in Australia from January 2015 and then attending Kindergarten from January 2017 through to her current enrolment in Year 8 at the same school.
   2. minimal ties to Greece, with only a brief period in 2022 when she returned to Greece but continued her schooling in Australia remotely.
   3. Australian support network and dependence, with the applicant's immediate family, friends, schoolmates, and broader social networks based entirely in Australia, and being dependent on her mother who resides lawfully in Australia and who has a committed relationship with an Australian citizen.
   4. claimed family visa history and hardship, after the applicant's father was refused a Temporary Work (Skilled) visa which left the family in the tribunal system in Australia for an extended period and which they say contributed to the breakup of the applicant's parents' marriage. The applicant's father is currently seeking Ministerial intervention in his case, and her mother is intending to lodge a partner visa application with her new partner.
   5. clear future visa pathway, with the applicant's mother and her Australian citizen partner intending to lodge a partner visa application in the next 3 months after the applicant's mother's divorce proceedings in Greece is finalized. The applicant's mother intends to include the applicant as a dependant on her partner visa application.
4. The representative submitted that, in those circumstances, the applicant's stay in Australia was not uncertain, and a tourist visa would enable the applicant to remain on-shore to facilitate her mother lodging an on-shore Partner visa application and the applicant being added as a dependent on-shore.
5. The applicant's representative requested that the Tribunal set aside the decision to refuse the visa and grant the visa for a period of three months or alternatively grant an extension of time for final evidence to be submitted supporting the future partner visa application.
6. On 20 May 2025 the Tribunal wrote to the applicant inviting them to comment on information in the applicant's movement record which might suggest that the applicant was present in Australia unlawfully. This is discussed further below. The Tribunal also invited the applicant to provide any further information they asked to be considered, including evidence supporting the future partner visa application by the applicant's mother, by 4 June 2025. The Tribunal would then consider the applicant's request that a decision be made without holding a hearing, noting that this may lead to a decision that affirms the decision under review.
7. On 3 June 2025 the Tribunal received an email from the applicant which provided information and documents relating to the Tribunal's invitation to comment on information in the applicant's movement record. The email also stated:

We also reiterate our previous request that, in the alternative, the Tribunal allow time to submit further evidence in support of the applicant's mother's upcoming Partner visa application. If necessary, we are happy to provide an indicative timeframe upon request of 28 days or alternatively ensure that the case is remitted to allow a period of upto (sic) 3 months grant to ensure we successfully prepare the mothers partner visa in a timely manner.

Whether decision to be made without holding a hearing

1. Section 106 of the Administrative Review Tribunal Act 2024 (ART Act) sets out the circumstances in which the Tribunal may make a decision without a hearing. Where, as here, the only parties to the preceding are the applicant and a non-participating party, the Tribunal may reach a decision without a hearing if: either the decision is wholly in favour of the applicant or the applicant requests the Tribunal make its decision without holding a hearing; and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties.[1]
2. As described above, the applicant's request for the decision to be on the papers was contained in a document which included a request for the opportunity to provide further evidence to the Tribunal if a wholly favourable decision was not made. In my view the request to provide additional information did not condition the request that a decision be made without conducting a hearing - it merely requested the opportunity to provide further material to the Tribunal in the absence of a hearing being conducted. This request was reiterated in the email of 3 June 2025 in response to correspondence from the Tribunal indicating that any information received would be considered in determining whether a decision could be made on this matter without holding a hearing. The applicant did not respond to the invitation to provide further information by requesting a hearing be conducted.
3. I am therefore satisfied that the various requests by the applicant detailed above are requests of the Tribunal to make its decision without holding a hearing.
4. In reviewing the decision to refuse the applicant the visa the Tribunal must consider the criteria for the visa set out in Part 600 of Schedule 2 to the Regulations. These relevantly include whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has substantially complied with previous visas, intends to comply with conditions the visa would be subject to, and any other relevant matter.
5. In a recent decision of the Tribunal involving the anonymised applicant BXFHJ,[2] a three-member panel of the Tribunal discussed the requirement in s 106(3)(c) of the Act that, before a decision can be made without holding a hearing, the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding. They referred to the statutory context of that provision which required a Tribunal, in conducting a review without a hearing, to be able, among other things, give a 'proper consideration of the matters before the Tribunal' and make the 'correct or preferable decision'.[3] The Tribunal stated that one or both of these factors may not be possible:

...Where the proceeding involves issues which require an assessment of matters which can only be tested in the presence of the applicant at a hearing because the Tribunal considers that it cannot determine such matters without taking evidence orally from the applicant at a hearing.[4]

6. The Tribunal in BXFHJ gave as an example of an issue which may require taking oral evidence as "where the applicant must satisfy the Tribunal as to the genuineness of their intention to comply with the purpose of a visa or their intention to abide by the conditions of a visa".[5] That example may apply to the issues in this case. However, the examples provided by the Tribunal in BXFHJ were to be distinguished from "a situation where the Tribunal considers that it cannot decide the matter in the applicant's favour due to the evidence which has been provided by the applicant being insufficient to satisfy the Tribunal as to the applicant's claims".[6] Therefore it is not the insufficiency of evidence going to the applicant's intention which might require taking oral evidence but whether, in the circumstances of the particular case, documentary evidence is capable of supporting a finding on the genuineness of the applicant's intention.
7. In this matter the applicant has provided documents and submissions going to their intentions relating to the applicant's stay in Australia, including the various matters the Tribunal is required to have regard to. The genuineness of that intention is said to follow from the circumstances of the applicant and her parents time in Australia, including her mother's intentions, as the applicant's current guardian, to apply for an alternative visa which would enable her and her daughter to continue to lawfully stay in Australia beyond the period of the visa in question in this matter. Testing the applicant's intention is therefore limited in this case to the sufficiency or otherwise of the evidence going to those circumstances.
8. This matter also involves a 14-year-old applicant. Unlike other visas, a visitor visa does not provide any secondary criteria which might apply to the child or dependant of a primary applicant. The applicant must satisfy the criteria for the visa. Given the age of the child it is in my opinion appropriate to assess the relevant intention of the child based on their circumstance and parent's intentions for the child as reflected in submissions provided by applicant's representative. This supports the ability of the Tribunal to make an assessment of the genuineness of the applicant's intentions in this case without holding a hearing.
9. In my view, the applicant has been provided with several opportunities to provide information in support of her application for the visa. These include the opportunity to respond to potentially adverse information in the applicant's movement record which is discussed below. I note the applicant has now twice requested, as an alternative to an unfavourable decision, a further opportunity to provide evidence supporting the applicant's mother's intentions to apply for a partner visa. However, I consider the opportunity, extended on 21 May 2025, for the applicant to provide any further information the applicant would like considered in this matter by 4 June 2025 to have been reasonable.
10. On the basis of the material provided to the Tribunal, including the material in the Department's file, movement records of the applicant and her mother and the submissions and material provided by the applicant, in my view it is possible to determine the genuineness of the applicant's intention without the need for an oral hearing. I therefore consider that the issues for determination in the proceeding can be adequately determined in the absence of the parties, and that the requirements in s 106(3)(c) are met.
11. I will therefore decide this proceeding without conducting a hearing.

1. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that 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; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

1. Under cl 600.221, an applicant for a tourist visa must intend to visit or remain in Australia to visit certain Australia citizens or permanent residents, or for any other purpose that is not related to business or medical treatment.
2. Clause 600.222 restricts the intended purposes of a visa applicant who is in Australia who holds a student visa or has been the holder of a student visa since last entering Australia. The applicant's movement records state that she last arrived in Australia on 1 January 2023 on a subclass 651 eVisitor visa and has not held a student visa since that time. Clause 600.222 therefore does not apply to the visa applicant.
3. In the present case, the visa applicant seeks the visa for the purposes of remaining in Australia while her mother applies for a partner visa. As this purpose is not related to business or medical treatment it is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
4. The applicant's representatives have submitted that the applicant intends to rely on the visitor visa for her stay in Australia for up to 3 months until either she is granted a further visa on the basis of her mother applying for a partner visa, or she leaves the country.

Compliance with conditions of last substantive visa

1. 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)).
2. The last substantive visa held by the applicant was a visitor visa granted on the 1 May 2023. This visa ceased on 1 August 2023. This visa was subject to the conditions that the applicant must not work in Australia and not engage in study or training in Australia for more than 3 months. Therefore, any study that the applicant may have engaged in while holding that substantive visa was for less than a three-month period.
3. The applicant was granted a bridging visa on 2 August 2023 which was subject to the condition that the applicant not work in Australia. There is no evidence suggesting that the applicant engaged in work while in Australia in breach of either her last substantive visa or subsequent bridging visa. There was also no condition on her bridging visa limiting her period of study while in Australia.

1. 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 600.611(3)):
   • 8101 - must not work in Australia
   • 8201 - must not engage in study or training in Australia for more than 3 months.
2. The applicant is seeking a visa for a period of three months. Therefore any study she engages in would not be for a period in excess of three months. The applicant also submits that, given her age, she will not engage in work while the holder of the visa. I accept that the applicant intends to comply with the conditions on the visa.

1. The Tribunal has also considered all other relevant matters (cl 600.211(c)).
2. In her application for the visa, the applicant stated that the reason for her further stay was to spend additional time in Australia to be with her brothers and father. Only her brother Theodorus is listed on the application. However, in submissions to the Tribunal, the applicant states that she is now wholly dependent on her mother who resides lawfully in Australia and is in a genuine, committed relationship with an Australian citizen.
3. The applicant's submission to the Tribunal states that the applicant and her parents have remained in Australia despite financial hardship and difficulties with maintaining substantive visas, which contributed to her parent's separation. The applicant's father is currently seeking the Minister's intervention in his case, and her mother is planning on applying for a Partner visa with her current partner. They are waiting for the applicant's mother to finalise her divorce from the applicant's father divorce proceedings through proceedings in Greece before lodging the application with the applicant as a dependent child. Requiring the applicant to leave Australia would pose extra difficulties for her mother in lodging her partner visa onshore.
4. Movement records for the applicant indicate that the applicant last arrived in Australia on 1 January 2023 on a class 651 eVisitor visa which expired on 1 April 2023. The applicant was then granted a bridging visa on 11 April 2023. This record suggests that the applicant was in Australia without a valid visa for a period of 10 days.
5. On 20 May 2025 the Tribunal wrote to the applicant inviting them to comment on this information. On 3 June 2025 the Tribunal received an email from the applicant's representative which stated that the applicant had applied for a Visitor visa on 31 March 2023 while she still held a valid eVisitor visa. She received a letter from the Department on 31 March 2023 acknowledging her application. The applicant received a bridging visa on 11 April 2023 while her Visitor visa application was being processed. There is no record of the reasons for the delay between the application for the Visitor visa and grant of the bridging visa. The applicant's representative submitted in their email that the Department was likely to have had to issue the bridging visa manually due to system error or delay.
6. Movement records for the applicant's mother confirm that she has been issued 2 Visitor visas since she last arrived in Australia in January 2023 on an eVisitor visa and is currently on a bridging visa. There is no suggestion that the applicant's mother has been present in Australia unlawfully due to the expiry of a substantive or bridging visa or has breached any of the conditions of her various visas while in Australia.

1. The Tribunal notes that the Department's procedural guidelines, Procedures Advice Manual (PAM) 3, includes the following in relation to the grant of a Visitor visa:

Intention to make a further application in Australia

If an applicant applies for a visitor visa but intends to make a further visa application in Australia (whether this intention is stated or not), this does not necessarily indicate that the applicant does not intend a genuine temporary stay and is not a reason in and of itself to refuse the visitor visa. If the Regulations allow an application to be made in Australia by an FA-600 visa holder in Australia, s65 delegates should not be seeking to block this pathway.

In addition, an intention to apply for a further visa in Australia does not necessarily indicate that the person will not leave Australia before the FA-600 visa ceases. The question to consider is not "will this person apply for a visa in Australia" but rather, "if this person does not apply for another visa in Australia, or if they apply and are refused, will they abide by the conditions of the visa and will they leave Australia". The answer to this will help to determine if the applicant intends a genuine temporary stay.

If there is a stated intention to apply in Australia for a visa (such as a Partner visa), s65 delegates should focus on assessing if the applicant intends a genuine temporary stay in relation to the FA-600 visa for which the person have applied - the focus is not on assessing any relationship:

• The genuineness of a relationship will be assessed if and when a Partner application is made. Applying for a Partner visa in Australia is a legitimate visa pathway.
• It is acceptable for a person to apply for an FA-600 visa in order to be with their partner to maintain an established relationship.
• An applicant who discloses an intention to continue a relationship (or, enter into a relationship (as they have not met before)) should not be disadvantaged as a result of that disclosure.

Officers should take a fair and reasonable approach to the genuine temporary stay requirement, particularly if the applicant is in a continuing partner relationship with an Australian citizen or permanent resident and/or there are children involved.

The focus should be on the current intentions of the applicant. Consequently, the genuine temporary stay requirement can be satisfied, even if there is a possibility that the applicant might later attempt to make a further application in Australia, seek permanent residence and/or return to Australia. ...

1. The guidelines are not binding upon the Tribunal but where not inconsistent with the legislation and regulations, I am satisfied that it is appropriate to have regard to the guidelines as a relevant factor to take into account.[7]
2. In the circumstances of this case, these guidelines suggest the appropriate question is not whether the applicant's mother will be able to apply for a Partner visa in the future but whether, if the applicant's mother does not apply, or does apply but is refused, will they comply with conditions of the visa and leave Australia.
3. There are a number of factors which suggest that the applicant has a strong incentive to remain in Australia after the expiry of the visa, if granted. Her submission to the Tribunal states that the applicant attended childcare in Australia in 2015, enrolled in kindergarten in 2017 and is currently in year 8. She has returned to Greece for less than a 6-month period in 2022 when she attended school in Australia remotely. Her immediate family, friends, schoolmates and broader social networks are based in Australia. There is no evidence of the applicant's ties with family back in Greece, or what support might be available for her in Greece if she was forced to return without her mother or father.
4. However, the applicant's age and history suggest that the applicant is likely to remain in Australia only while her mother, or perhaps her father, is able to also remain in Australia to support her. I accept that the applicant's mother has remained in Australia while her visa status allowed, and there is no evidence of her breaching any conditions of her previous visas or remaining in Australia beyond their expiry. I note the submission that the applicant's mother is currently attempting to finalise her divorce in Greece and intends to make an application for a Partner visa. I also accept that the applicant remaining in Australia would assist her mother to be able to make such an application while onshore. The ability of the applicant and her mother to be granted visas in the future, including if one or both of them are forced to leave Australia, would be at least diminished by a breach of visa conditions or remaining in Australia beyond the period of the visa.
5. Even if the applicant remains in Australia there is uncertainty over when the applicant's mother may be able to apply for a Partner visa within the 3-month period sought by the applicant in her application for the visa under review. However, the applicant's history supports the submission that the applicant's mother would leave Australia if her daughter no longer had a valid visa entitling her to remain in the country.
6. I agree with the procedural guidelines set out above that I am not concerned with the likelihood and timing of the applicant's mother being able to apply for a Partner visa or the chances of any application being successful. The lack of evidence going to these matters does not preclude a finding that the applicant intends to remain in Australia only while she has a valid visa. In my view, the applicant's migration history and submissions are sufficient for me to be satisfied that she would leave Australia if she was not the holder of a valid visa.
7. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds 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.

Representative for the Applicant: Mr Gregory Newton (MARN: 1173844)

[2] 2010120 [2025] ARTA 550 ('BXFHJ') with the Tribunal consisting of Justice Kyrou, President, Deputy President S Burford and Deputy President K Dordevic.

[7] See G v MIBP [2018] FCA 1229.