2316733 (Migration) - [2025] ARTA 1933

2316733 (MIGRATION) [2025] ARTA 1933 (30 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2316733

Tribunal:General Member M Graham
Place:Canberra
Date: 30 July 2025
Decision: 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.

Statement made on 30 July 2025 at 5:58pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – applicant’s migration history – litigation supporter appointed – support for Australian citizen child with disabilities and special needs – providing essential emotional support – approved NDIS support – previous compliant family visits – offer of employment in home country – compassionate and compelling circumstances – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 67, 251
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611; Schedule 4, Public Interest Criterion 4005
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 11 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).
The visa applicant applied for the visa on 4 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.
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.
The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied the visa applicant genuinely intended to stay temporarily in Australia.
The review applicant did not appear before the Tribunal on 23 June 2025 but was represented by [Mr A], his father and guardian living in Australia, who gave evidence and presented arguments on his behalf. [Ms A], the visa applicant, and the mother of the review applicant, also gave evidence. The review applicant, [X] did not attend the hearing or give evidence. The Tribunal hearing was conducted primarily in English with the occasional assistance of an interpreter in the Bengali and English languages.
The applicants had previously been legally represented but on 12 June 2025 the Tribunal was advised that the authorisation for legal representation had been withdrawn. At the hearing the Tribunal discussed the possibility of appointing [Mr A] as the litigation supporter for the review applicant who is a minor and disabled and sought [Mr A’s] consent.
On 4 July 2025 the Tribunal received the completed litigation supporter form from [Mr A] and on 7 July 2025 the Tribunal appointed [Mr A] as litigation supporter to the review applicant in these proceedings under s67 of the Act.

BACKGROUND

The applicant for the visa (the visa applicant) is a citizen of Bangladesh and is [age] years old. The applicant for review (the review applicant) is the visa applicant’s son and he is an Australian citizen. He was born in Australia on [date] and resided in Australia until 2020. His Australian citizenship was granted [in] 2023. He is [age] years old and has been diagnosed with Down’s Syndrome and other health conditions.
The visa applicant holds a [Qualification 1] from a university in Bangladesh. She arrived in Australia [in] May 2008 with her husband on a student visa which ceased [in] May 2009. She subsequently held 3 further student visas to 3 December 2010, 15 March 2013 and 4 June 2014. While in Australia she completed various courses of study, including a [Qualification 2]. Her two sons were born in Australia in [specified years].
She applied for a Temporary Graduate visa (Subclass 485) (Graduate Workstream) on 17 March 2018. Her application was refused on 15 October 2018 because her elder son, the review applicant, could not satisfy Health requirements under PIC 4005.
She applied for a review of the decision with the AAT and on 21 May 2019 the AAT affirmed the decision. [In] June 2019 she lodged an application for judicial review with the Federal Circuit Court, which was dismissed [in] November 2019. She lodged a further appeal [in] January 2020 to the Federal Court, which was dismissed [in] April 2023. [In] May 2023 she filed an appeal to the High Court which dismissed her application for judicial review [in] May 2024. There is one remaining High Court matter, relating to the costs, arising out of the visa applicant’s Subclass 485 visa appeal, which has not yet been finalised.
[In] May 2020 the visa applicant departed Australia to care for her sick father-in-law in Bangladesh, taking her two sons with her. Due to the Covid 19 pandemic the visa applicant was unable to return to Australia.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal considered the visa application, dated 4 August 2023, and supporting information, including Evidence of Citizenship of [X] and a Submission dated 3 August 2023 from the applicant’s legal advisers Parish Patience Legal and Migration Services, copies of the marriage certificate of the applicant and the birth certificates of her two children, copies of 4 property Deeds owned by [Mr A] and two owned jointly by the visa applicant and her husband in Bangladesh, overseas Penal Clearance Certificate from Bangladesh and Australian Federal Police Clearance Certificate for the visa applicant, Bank statements of visa applicant and her husband, letter of support regarding medical condition of the visa applicant’s father-in-law, dated 20 July 2023 and a letter from her younger son’s school about the proposed visit.
The Tribunal also considered movement records provided by the Department, dated 21 May 2025, for [Ms A], [Mr A], [X] and [Y].
On the 18 June 2025 the following submissions were received by the Tribunal:
·     Response to hearing invitation;
·     Acknowledgement of application for Ministerial Intervention;
·     Letter from [Mr A] to Minister Burke;
·     Support Plan for [X] from his school;
·     Change of Contact Details;
·     National Disability Insurance Agency Plan Approval, dated [in] November 2024;
·     Behaviour Support Plan for [X] dated [in] March 2025; and
·     NSW Health Surgery Waiting List approval for [X].
On 4 July 2025 the Tribunal received the following documents from the visa applicant:
·     [Employer 1] Offer of Employment and Job contract, dated 16 March 2021;
·     [Employer 1] Remuneration Increment letter, dated 27 November 2023;
·     [Employer 1] Letter of Support for [Ms A] to take leave, dated 27 June 2025;
·     Letter from [Bank 1], dated 2 July 2025 stating that [Ms A] has a current balance Bank solvency statement in her account of 3,246,737.63 (Thirty Two Lac Forty Six Thousand Seven hundred thirty seven and sixty three Paisa);
·     Pay slips for the March – April for 1,25,000.00 and April - May 2025 for 1,25,000.00 (one Lac Twenty five thousand Taka) for [Ms A];
·     Investors Portfolio Statement from [Business 1], dated 30 June 2025 indicating a current Deposit of 13,023 securities invested in [Business 2], with a market Value of 308,558.83;
·     Rent receipt dated 10 April 2025 for a property at [address], Dhaka, owned by the visa applicant’s father [Mr B] for the sum of 67,300 Taka, including rent, water and gas;
·     Copy of the current passport of the visa applicant’s father [Mr B] and listing his wife as [Ms B]; and
·     Signed Statement from [Mr B] regarding payment of 65000 Taka rent from the above property which is paid monthly to his daughter [Ms A].
On 4 July 2025 the visa applicant’s husband [Mr A] provided :
·     An activity statement for the period April to June 2025 from the Australian Taxation Office;
·     His [Bank 2] Statement for the period 3 June to 4 July 2025;
·     A medical Referral for [X], dated 27 May 2025, from [Doctor A], his GP to [Doctor B], a specialist, including his Mental health Plan; and
·     2025 correspondence from [Hospital 1], NSW Health and [Hospital 2] regarding [X’s] medical conditions and ongoing health management.
On 7 July 2025 the Tribunal received a letter from the visa applicant, dated 2 July 2025, documenting income from all sources, including employment, stock market investments, quarterly rent from various family properties in Bangladesh and tuition fees from her brother, totalling BDT 361,333.33 monthly and the following supporting documents:
·     [Bank 1] Bangladesh statement dated 26/10/2023 -28/2/2024 showing rent paid to the applicant;
·     Summary of Deed 1 and Rental Agreement and Tenant letter and ID;
·     Summary of Deed 2 and Rental Agreement and Tenant letter and ID;
·     Summary of Deed 3 and Rental Agreement and Tenant letter and ID;
·     Summary of Deed 4 and Rental Agreement and Tenant letter and ID;
·     Receipts of land rent;
·     Updated letter from the visa applicant’s father, [Mr B] dated 1 July 2025 regarding transfer of rent from apartment to his daughter; listing the rent amount and confirming accommodation arrangements for the visa applicant and her younger son with him and his wife; and
·     Letter from the visa applicant’s brother, [Brother A], dated 30 May 2025, confirming English tuition work and fee paid to the visa applicant for his two sons, whose birth certificates are provided.
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.
Purpose and Duration of visit
In the present case, the visa applicant seeks the visa for the purposes of visiting her husband and elder son, the review applicant. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
The Tribunal noted that the original purpose of the visa in 2023 had been to accompany the review applicant back to Australia in 2023 to settle him back into school after three and a half years in Bangladesh but that when her visa application was refused she made arrangements for her parents to accompany him in July 2024.
The Tribunal also considered the purpose and duration of the visa, based on evidence provided by the visa applicant, and by the litigation supporter on behalf of the review applicant. The Tribunal is satisfied that the visit is for the purpose of visiting her husband and the review applicant, who reside in Australia, for a period of 2-3 months. The Tribunal also accepts, based on medical evidence, his 2024/2025 NDIS Plan Approval and a Behavioural Support Plan Progress Report, dated [in] March 2025, that the review applicant has been diagnosed with Down Syndrome, Severe intellectual Disability and Congenital Heart Defect and is a child with special needs. The Tribunal also accepts that he is non-verbal and has communication problems.
The Tribunal also accepts, based on evidence from both parents and the review applicant’s behaviour support practitioner, that the review applicant has found the separation from his mother very difficult, since his return to Australia in 2024. The visa applicant and her husband gave evidence that after his arrival in Australia, he initially responded to video calls from his mother and his brother in Bangladesh but subsequently became withdrawn and no longer wants to engage with them. The parents submitted further, he does not understand what has happened and may feel abandoned and this has negatively affected his behaviour and his schooling. Both parents hope that a visit from his mother and his younger brother will restore the review applicant’s overall mood, help him come to terms with the separation and improve his capacity to attend school and benefit from the assistance provided under his NDIS plan.
The Tribunal also gave weight to the view of [Mr C], the review applicant’s behavioural support practitioner, in his progress report, dated [in] March 2025, that “[X’s] emotional distress is heavily linked to his separation from his mother” and that a visit by the review applicant’s mother is needed “to provide the essential emotional support he requires to help stabilise his mental health”.
Compliance with conditions of last substantive visa
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 Tribunal accepts based on movement records provided by the Department, that the visa applicant arrived in Australia [in] May 2008 and departed Australia on four occasions for short periods during 2010, 2013, 2015 and most recently in 2020. The Tribunal also accepts based on the visa applicant’s application and oral evidence, Departmental movement records and written submissions from her legal representative, that the visa applicant held student visas in Australia from 2008 onwards for the purpose of completing various courses, including a [Qualification 2] and that she has always complied with the conditions of her visas.
Her visa (Subclass 485) application was refused on 15 October 2018 because her elder son could not satisfy Health requirements under PIC 4005. During the period that her Subclass 485 visa was being determined she was granted a series of bridging visas. Her last Bridging visa B expired [in] May 2020 when the visa applicant departed Australia to care for her sick father-in-law in Bangladesh, taking her two sons with her. Due to the Covid 19 pandemic the visa applicant was unable to return to Australia.
The Tribunal does not have any evidence before it that the visa applicant has failed to comply with the conditions of the last substantive visa held, or any of the bridging visas referred to above.
The Tribunal also took into account the family history of visa compliance. The Tribunal finds that her husband arrived with the visa applicant in Australia [in] May 2008 and departed for 5 weeks in 2010 and again in 2014. The review applicant, [X] left Australia with his mother in March 2020 and returned with his grandparents in July 2024. His younger brother, [Y], born in Australia on [date], also departed Australia in March 2020 with his mother and has not returned to date. The Tribunal also took into account that the visa applicant’s parents were granted visitor visas to accompany the review applicant back to Australia in July 2024 and complied with their visa conditions.
Based on the evidence above, the Tribunal finds the visa applicant has complied substantially with the conditions of her last substantive visa held and subsequent bridging visa (cl 600.211(a)).
Intention to comply with conditions
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.
The Tribunal discussed with the visa applicant and her husband the importance of complying with the conditions of the visitor visa and not overstaying the time permitted. The visa applicant stated that she would comply with all the conditions of the visitor visa, she has no intention of working or studying in Australia, she only wants to see her family again and check on her son’s wellbeing. She also said she would not overstay because she understands this would affect future visa applications and the family’s application for Ministerial Intervention.
To the extent that it provides an additional incentive for the visa applicant to comply with the conditions of her visitor’s visa, the Tribunal finds that [Mr A], the visa applicant’s husband made an application for Ministerial Intervention under section 251 of the Migration Act 1958 appealing for ongoing residency in Australia for himself to care for his son, the review applicant, an Australian citizen with special needs. The Tribunal referred to the acknowledgement of the application by the Department, dated 23 April 2025, and a letter by [Mr A], the review applicant’s husband to the Honourable Minister Burke, dated [in] May 2025, outlining the immigration and visa history of the family and their difficult circumstances and seeking intervention on compassionate grounds.
The Tribunal, on the basis of the evidence outlined above finds that the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)).

Other relevant matters

The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The Tribunal took into account the visa applicant’s economic circumstances in Bangladesh. Based on oral evidence and documentation submitted by the visa applicant, including an offer of employment letter from the visa applicant’s employer, dated 16 March 2021, confirming her [position], [Employer 1] in Dhaka starting on 1 April 2021, further documentation confirming her remuneration, bank statements and oral evidence provided at the hearing, the Tribunal accepts that the visa applicant has been employed in an ongoing full-time professional position since 2021 with a [business] in Bangladesh, is paid monthly and received a pay rise in April 2024.
The Tribunal also accepts on the basis of a letter and birth certificates submitted by the visa applicant’s brother that the visa applicant receives additional income for tutoring her brother’s two sons in English. The Tribunal was also satisfied by documentation submitted about various properties in Bangladesh owned by the visa applicant’s father, the visa applicant’s husband and jointly with the visa applicant and her husband, that she received rent quarterly from those [properties]. She submitted to the Tribunal that she lives with her son and parents rent free in their residence and that her father has provided her with additional rent income from a commercial property that he owns, to support her living expenses and those of her family in Bangladesh and Australia. Overall the visa applicant estimates, based on her payslips, investment income from [Business 2] securities, her English tuition fees and recent accounts and receipts from tenants of the family owned properties outlined above, that she receives total income of BDT 3,61,333.33 (AUD$4508) monthly in Bangladesh. She is able to pay school fees for her younger son to attend a good school. On the basis of the evidence above the Tribunal is satisfied that the visa applicant’s economic circumstances in Bangladesh are comfortable and she has sufficient funds to pay for her travel and visit to Australia.

The Tribunal also considered the visa applicant’s family ties in Australia and Bangladesh respectively. The Tribunal finds that the visa applicant has immediate family ties of her husband and elder son, the review applicant, living in Australia and her parents, younger son, [her siblings] and their [families] and other extended family living in Bangladesh. Overall the Tribunal accepted the visa applicant’s evidence that she has both economic incentives and close family ties in Bangladesh, as well as her younger son’s future to consider, which provide incentives for her to return at the end of her stay.
The Tribunal also took into account the accommodation and financial resources of the review applicant and his father, the litigation supporter. [Mr A] is the visa applicant’s husband and father of the review applicant. He resides in Australia in a three bedroom rental home with the review applicant and is his primary carer. He works as a self-employed [occupation 1] in between taking his son to school and medical appointments. He submitted a quarterly ATO activity statement from April – June 2025, indicating income from sales after tax of $4,988. He also receives a Centrelink Disability Support Payment of $1058 fortnightly on behalf the review applicant and rental assistance. He submitted his income is sufficient to pay rent, living expenses and health care costs for himself and his son. Based on the evidence above the Tribunal is satisfied that the review applicant’s father is able to accommodate the visa applicant and her younger son during their visit and pay for their living expenses during their stay in Australia.
The Tribunal considered the compassionate and compelling circumstances of the visa applicant, namely that she and her husband have been living apart for the past five years due to her need to return to Bangladesh to care for her seriously ill father in law, which resulted in her leaving Australia in 2020 with her two sons and being unable to return to Australia before her visa expired, due to the Covid -19 pandemic, as well as her elder son’s severe disability and special needs. The Tribunal also noted the evidence of [Mr A], that due to his political views and activism he was unable to return to Bangladesh in 2014 when his mother died or in 2020 when his father was ill and that his wife travelled to Bangladesh in his place. The visa applicant and her husband stated it is in the interests of their elder son to remain in Australia because of the health and educational advantages offered in Australia. The Tribunal took into account the written submissions made by both parents and the review applicant’s medical advisers and other professionals as well as the application for Ministerial Intervention regarding the family’s circumstances.
The visa applicant’s husband submitted that he has applied for protection on the grounds of persecution due to his political beliefs and therefore can’t travel to Bangladesh. If he is not granted permanent residency in Australia he will have to return to Bangladesh with the review applicant, who has no one else to care for him in Australia. He currently holds a bridging visa, has made an application for protection and is awaiting the outcome of a High Court appeal on the issue of a costs order related to the visa applicant’s subclass 485 visa application. He also submitted his elder son would be disadvantaged educationally, have fewer health services and be ostracised by the community if he had to return to Bangladesh. [Mr A] also stated in support of the visit that he misses his wife and his younger son and is also focussed on the best interests of both his sons. He does not want to do anything that would hamper his son’s rights to health and education services in Australia or risk the family’s application for Ministerial Intervention.
The Tribunal accepts, based on country information[1] and submissions by his parents, that the review applicant would not thrive in Bangladesh due to the limited health and educational services available for children with disabilities and special needs. In addition, the Tribunal accepts there are cultural prejudices in Bangladesh against people with disabilities[2]. The visa applicant explained that she and her family are regarded by many in the community as cursed because of her son’s disability. She said she was shunned by some people socially and she stopped going out, except to visit family. During the three years that he lived in Bangladesh, the review applicant attended a school trial for two days but the visa applicant was not able to find a school appropriate for his needs.
[1] DFAT Country information Report: Bangladesh (2025) paras 2.15-2.24.
[2] Ibid, para 2.24
The Tribunal also considered the intention of the visa applicant to visit Australia with her younger son and notes that [Y] is the visa applicant in a related application. The Tribunal accepts, based on written and oral evidence provided by the visa applicant, that [Y], has been living in Bangladesh with his mother and grandparents, and that he is a healthy boy aged [age], who attends school in Bangladesh and is doing well there. Further, he is able to get leave from his school for 2 – 3 months to travel with her to Australia to visit his father and brother and expects to return at the end of the visit.
Towards the end of the hearing, the Tribunal raised concerns about the likelihood of the visa applicant, once in Australia with her younger son, and reunited with her husband and elder son, overstaying the maximum time limit of her visitor visa. The visa applicant was frank about the family’s longstanding attempts to remain in Australia, including a series of court appeals against the decision to refuse her class 485 visa in 2018 and her husband’s application for Ministerial Intervention. The visa applicant was pragmatic as she described the choice they face if her husband’s application for protection fails and he has to return to Bangladesh with the review applicant. She stated that she and her husband have decided it is better for him to remain with the review applicant in Australia for the sake of their elder son’s health and education and for her to remain in Bangladesh with their younger son. The visa applicant also reiterated her history of strict legal compliance with past visa conditions and her intention to return with her son at the end of the permitted stay and not to jeopardise the family’s application for Ministerial Intervention.
The Tribunal also considered the needs and best interests of the review applicant as relevant to the application, insofar as it is related to the purpose of the visit by the visa applicant, and also because all of the family circumstances, when considered together, inform the consideration of whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The Tribunal accepts, based on written and oral submissions, including independent medical evidence and other specialist health and education providers, that the review applicant in this case is [an age] year old boy with Downs syndrome and other health conditions which affect his development and require ongoing management, he is non-verbal and has special educational needs. The Tribunal finds he currently attends [a named] School and has been assessed for and granted a NDIS package for the period [November] 2024 – [October] 2025 valued at $112.516.80. The Tribunal also finds he was granted Australian citizenship in 2023 following ten years of residence in Australia.
During the hearing, the litigation supporter provided the following evidence on behalf of the review applicant:
·     he is a child with disabilities and special needs;
·     at the age of [age] he had heart surgery to repair two holes he had in his heart and may need further heart surgery in future;
·     he has been booked for hospital treatment under anaesthetic for dental care, care for his feet and other health conditions due to his disability;
·     he has lived most of his life in Australia with his mother, father and brother and depends on those close relationships;
·     in 2020 he travelled with his mother and brother to Bangladesh and was unable to return to Australia due to the Covid 19 pandemic and his mother’s inability to obtain a visitor visa;
·     in July 2024 with the assistance of the visa applicant’s parents, who were able to obtain visitor visas, he was able to return to Australia and resume his schooling;
·     the travel was especially difficult for him because of his disability, special needs and because he had never been separated from his mother before;
·     since returning to Australia he has missed his mother very much and has developed behavioural issues that are affecting his education and relationships with family;
·     he has been approved for NDIS support, receives a disability payment of $1058.00 from Centrelink and attends a special school appropriate for his needs; and
·     as it is difficult for him to travel to Bangladesh and this would disrupt the schooling and the disability care he receives in Australia, he would benefit from regular visits from his mother and brother, such as the proposed visit.
Based on the evidence outlined above, the Tribunal is satisfied that it is in the review applicant’s best interests to remain in Australia but also that he has been emotionally affected by the separation from his mother and his brother and that he would benefit from regular visits from the visa applicant.
Based on the evidence above the Tribunal is satisfied in relation to her visitor visa application that the visa applicant is focussed on the long-term wellbeing of the review applicant, her elder son with special needs, hopeful of the success of their application for Ministerial intervention but also cognisant that the family needs to have an alternative plan and consider both her sons’ respective health, education and future lives. The Tribunal accepted the visa applicant’s evidence that if the application for Ministerial intervention is unsuccessful, she will remain in Bangladesh with her younger son, providing economic support to her family and making regular visits to Australia to see her husband and son. The Tribunal also accepted that for these reasons she would not jeopardise the granting of any future visitor visas to herself or other members of the family by overstaying the maximum time granted for the proposed visit.
CONCLUSION
the Tribunal has found that the visa applicant has complied substantially with the conditions of the last substantive visa held and subsequent bridging visa (cl 600.211(a)), that there is a history of family compliance with visa conditions and also accepts that the visa applicant intends to comply with the visa conditions to which the Subclass 600 visa would be subject (cl 600.211(b)).
The Tribunal has weighed the competing factors in this application, namely the immediate family ties of the visa applicant’s husband and elder son residing in Australia and the possibility that she and her younger son will not return to Bangladesh at the end of their stay against the incentives the visa applicant has to return to Bangladesh, including ongoing professional employment, property interests and a secure home with her parents and younger son, who attends school there. There are also the compelling and compassionate circumstances of the visa applicant’s family, in particular the parent’s decision to put the long-term interests of their elder son, an Australian citizen with special needs, ahead of their own preference to live together as a family, which has not been possible since 2020.
The Tribunal accepts that Australia, with its health care system, education services and the NDIS, offers better education and health services for a child with special needs, such as the review applicant, than Bangladesh and that their choice for him to remain in Australia with his father is reasonable in the circumstances. The Tribunal also accepts that this ongoing separation is a difficult situation for the family and would be made easier by regular visits by the visa applicant and her younger son. As the Tribunal is satisfied that the visa applicant’s husband is unable to visit Bangladesh due to his protection visa application, which has not yet been determined, and because it is difficult for the review applicant to travel, even when accompanied by family members due to his mental and physical health conditions, the visa applicant’s visitor visa application should be granted to allow her to visit him in Australia.
Overall the visa applicant has demonstrated sufficient evidence of her economic circumstances, family ties and other incentives in Bangladesh and the Tribunal is satisfied that the visa applicant is highly motivated to return to Bangladesh at the end of her proposed visit because to do otherwise would jeopardise the family’s application for Ministerial Intervention and also the success of future visitors’ visas which may be needed to visit her husband and son in Australia in the coming years.
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.
Guidelines on Ministerial discretion
Noting the visa applicant’s husband has made an application for Ministerial Intervention on his own behalf and as the primary carer of the review applicant, who is an Australia citizen, the Tribunal applied the Minister’s Guidelines for Referral to the visa applicant’s family circumstances and considers it is appropriate to refer the visa applicant’s husband’s application to the Minister for his further consideration on compassionate grounds. As the visa applicant and her husband are offshore it would be inappropriate to include them in the application.
The Tribunal took into account the length of time the family has spent in Australia and the circumstances beyond their control, including the Covid-19 pandemic, which resulted in the family being separated in 2020 and the review applicant and his mother and brother not being able to return to Australia from Bangladesh. The visa applicant’s husband has lived in Australia for seventeen years, has worked and served the community. For the past year he has been the primary carer of his disabled son. Central to the compassionate circumstances of the application for Ministerial Intervention are the review applicant’s disabilities and special needs, including his need to live with and be supported by his father, as well as access the high quality health, education and disability services through the NDIS, which Australia offers.
DECISION
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.
Date of hearing: 23 June 2025