2012152 (Migration)

The Administrative Appeals Tribunal considered an application for review of a decision not to grant a Subclass 870 Sponsored Parent (Temporary) visa. The applicant sought to join their son in Australia, claiming a genuine intention to stay temporarily. The Tribunal was tasked with determining whether the applicant genuinely intended to remain in Australia only temporarily, as required by the visa subclass criteria.

The central legal issue was whether the visa applicant had demonstrated a genuine intention to stay in Australia temporarily, as mandated by clause 870.226 of the Migration Regulations. This required the Tribunal to consider all relevant factors, including the applicant's immigration history, to ascertain the truthfulness of their stated intention. The Tribunal had to weigh the applicant's claims of a temporary visit against evidence suggesting a prolonged and unlawful presence in Australia.

The Tribunal's reasoning focused heavily on the applicant's extensive immigration history. It noted that the applicant had resided in Australia for a significant period between 1994 and 2018, during which they were unlawfully present for the majority of the time. Despite arriving on a three-month tourist visa in 1994, the applicant remained in Australia for over two decades, experiencing multiple periods of unlawful status. While the applicant claimed a lack of knowledge of Australian immigration laws and reliance on informal advice, they conceded awareness of their unlawful status during these periods. The Tribunal found this history highly relevant to assessing the genuineness of the applicant's claimed temporary intention, concluding that the criteria for a genuine temporary stay were not met. The Tribunal affirmed the delegate's decision not to grant the visa.