2317073 (Migration) - [2025] ARTA 1922

2317073 (MIGRATION) [2025] ARTA 1922 (16 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2317073

Tribunal:General Member J Wilson
Place:Canberra
Date: 16 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.

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – visiting citizen brother and permanent resident sisters for religious ceremonies after death of father – further visa application made to visit mother in declining health and now recently deceased – age, partner and step-children, share of property, and community activities – established business not affected by current conditions – compliant business travel to other countries – financial support and offer of security bond from review applicant and sisters – consistent and compelling evidence, documentation and detailed submissions – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211, 600.221, 600.222
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
BACKGROUND AND APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 21 September 2023 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with several 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 application, 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 review applicant is a [Age]-year-old male Australian citizen. According to records provided by the Department of Home Affairs (Department) he was born in Myanmar and acquired an Australian permanent protection visa (as a refugee). His late parents were also Australian Citizens. At the time of writing, both parents are now deceased.
The review applicant has been joined in Australia by his two sisters, now both Australian permanent residents, who also obtained their visas by being found to be refugees.
The visa applicant is the remaining brother who has remained resident in Myanmar. He has made a total of three attempts, in 2022, 2023 and 2025 respectively, to seek a visa to lawfully enter Australia to visit his family.
It is the second visitor visa application lodged with the Department on 5 September 2023 which is the subject of this review. The visa applicant made that application to allow him to enter Australia for the purposes of participating in religious ceremonies to honour the life of his late father. The visa applicant had been unable to visit his father prior to his death. The second visitor visa application was refused on the basis that the applicant did not meet cl 600.211 because the delegate was not satisfied the application genuinely intended to remain in Australia on a temporary basis, owing to a view that the applicant had insufficient incentives to return to Myanmar at the conclusion of the visa.
On 24 October 2023, the review applicant lodged a review application for review of that decision in the (then) Administrative Appeals Tribunal (AAT).
As the application for review was not determined by 14 October 2024, when the AAT became the Administrative Review Tribunal (Tribunal), the application is to be determined by the Tribunal in accordance with the provisions of the Administrative Review Tribunal Act 2024 (Cth).
While awaiting the outcome of the Tribunal’s review of the second visa application, the review applicant and the visa applicant made a third visitor visa application in 2025, in a further quest to seek entry to Australia to visit his mother whose health was declining at that time, however that third application was also refused by the delegate.
It is deeply regrettable that the Tribunal’s decision in this application for review could not occur prior to the applicants’ mother passing away in Australia [in] June 2025.
The review applicant appeared before me on 8 July 2025 to give evidence and present arguments. I also received oral evidence from the visa applicant, his two sisters, and his defacto partner. A family friend also appeared at the hearing willing and able to give evidence, however it was agreed that his additional evidence would not be necessary. The hearing was conducted with the assistance of an interpreter in the Burmese and English languages.
The review applicant was represented in relation to the review. The representative attended the hearing.
For the following reasons, I have concluded that the decision under review is set aside and the matter be remitted for reconsideration.
ORAL EVIDENCE GIVEN AT HEARING
The evidence presented from all witnesses was consistent and compelling. The claims made at hearing were supported by detailed pre-hearing submissions prepared by the review applicant’s legal representative.
At the hearing, the family was understandably grieving from the loss of their mother only three weeks prior. It was apparent that the sisters were wearing a form of matching black ceremonial dresses. When I asked if their clothing was of particular importance, one sister explained that they were dressed in that fashion because they were mourning.
The Tribunal was informed that prior to the mother’s death, the review applicant had made his mother a promise to assist his brother gain entry to Australia to visit her. So great was her desire to see the visa applicant that she acted contrary to medical advice (which has been provided to the Tribunal and was previously provided to the Department) and sought assistance from her daughters in early 2025 to take her to the post office to assist her renew her Australian passport to enable her to travel to [City in Country 1], where the visa applicant and his defacto partner were planning to meet her. The visa applicant’s defacto partner told the Tribunal that this trip was planned by the family as an alternative method of the mother seeing her son while he awaited the outcome of his Australian visitor visa applications.
The Tribunal heard further evidence that whilst attempting to organise the passport renewal, the mother had suffered a further medical episode and was re-admitted to hospital in Australia. The Tribunal was told it was not possible for the mother to travel to [City in Country 1] as planned, or anywhere else, as her health declined too rapidly.
The review applicant gave evidence his mother has been cremated in Australia. While the Tribunal has not received a death certificate, the oral evidence is compelling, and the Tribunal is loathed to request any further documentary evidence from the family, in the circumstances.
The applicants claim to be of the Buddhist faith. They have explained that according to the Theravada Buddhist customs it is necessary for them to observe sustained ceremonial prayer periods on the first, third, sixth and 12-month anniversary of their parents’ deaths. Based on the submissions provided, which include educative articles concerning the relevant cultural and religious customs, the Tribunal accepts this to be true.
Observations for the Department
While the visa applicant had originally made the second visa application to visit his father, family circumstances have now changed. The visa applicant is now seeking to enter Australia to partake in the ceremonial prayers for his mother. He has missed the first month anniversary and is now seeking to arrive in Australia by the end of August 2025, to allow him to participate in the family preparations for, and the prayers that will next take place, commencing [in] September 2025, for the three-month anniversary. They seek the visa to be granted for that timeframe and for that purpose. The visa applicant is seeking a three month stay, however oral evidence provided suggests he does not intend to remain in Australia for that full period and will depart once the family matters have completed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the visa applicant seeks the visa for the purposes of visiting family in Australia and specifically, to participate in Buddhist religious ceremonies with his family. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
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.
Has the visa applicant substantially complied with prior visa conditions?
In considering whether the visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).
In this matter, the Tribunal finds that the visa applicant has never travelled to Australia before, therefore has not previously held a substantive Australian visa and has no prior Australian travel history to assess.
For these reasons, the Tribunal applies no weight to this criterion.
Does the visa applicant intend to comply with the visa 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.
In the hearing, the Tribunal asked the review applicant whether he understood the visa conditions that would apply to his brother’s visa if it was granted. The review applicant stated he knew he could not work and could not overstay his visa. I informed the review applicant that it also included the visa applicant not being permitted to undertake training in Australia per condition 8201. In response, the review applicant stated the visa applicant is [Age]-years of age who operates his own business, and that he has no desire, nor need, at this point in his life, to undertake training in Australia.
The Tribunal also took oral evidence directly from the visa applicant. When asked whether he intended to work in Australia, he responded that he would not, mostly because he runs a successful [business] in Myanmar that is easy for him, and that if he came to Australia he would likely be limited to performing labouring work owing to the fact he does not have a working command of English, and that such physical work is not appealing to him. When asked if he would undertake any training in Australia, he gave evidence that he had not studied in a long time and is not inclined to do so now. I later explained the visa conditions to the visa applicant, and he stated he understood the conditions and would comply accordingly.
Notwithstanding the applicants’ positive claims concerning their intention to comply with visa conditions, the Tribunal proceeded to assess whether there would be a need for the visa applicant to work or undertake training in Australia and has found there not to be. The visa applicant gave oral evidence that he had operated his [business] continually for a seven-year period and that he employs four staff. When asked, the visa applicant stated his business has not suffered from the political, security or economic challenges in Myanmar.
The Tribunal has been provided with the visa applicant’s former and current business registration certificate, taxation documentation and financial statements that show regular income and that the visa applicant has savings of approximately AUD57,000. The visa applicant noted his defacto partner has been assisting him with the management of the business, and that she will assist him manage the business for a short period if he visits Australia. The Tribunal took also oral evidence from the defacto partner on this point, who confirmed this intention.
The Tribunal also heard oral evidence from the review applicant that he will, in his words, ‘be responsible’ for the visa applicant if his visa is granted. The Tribunal has also received written financial undertakings from the review applicant and both sisters to the effect that they will provide all necessary financial support to the visa applicant, if required. While the review applicant has agreed to sponsor to the review applicant, on the evidence provided the Tribunal considers that the brother’s visit to Australia is viewed by the family as a joint-family undertaking by all siblings. I also received oral evidence that the Australian-based siblings have jointly purchased a house in Sydney, where they each contribute to the mortgage. The review applicant and the sisters provided separate and consistent evidence that the visa applicant will live with them for the duration of his proposed stay in Australia. The Tribunal received oral evidence that they each have gainful employment and jointly have approximately 90,000AUD in a mortgage offset account available to them. The Tribunal also received documentary evidence that each sibling has some savings available. On that basis, the Tribunal is satisfied that adequate means of support is available to the visa applicant, although it appears unlikely to be required.
On the balance of the evidence, the Tribunal is satisfied the visa applicant has no need to work or undertake any training in Australia and has demonstrated an intention to comply with his visa conditions.
Other relevant circumstances
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The Tribunal recognises that the visa applicant has significant family ties in Australia that may act as a ‘pull factor’. Indeed, the visa applicant is the last remaining relative of the family unit still resident in Myanmar. This factor may act as a strong incentive for the visa applicant to remain in Australia. The Tribunal has also considered the evidence that each sibling acquired refugee status in Australia after obtaining temporary visitor visas, and that on its face that it might suggest that the visa applicant may intend to follow a similar path. I note the process of seeking protection is a separate process to the criteria applicable to the grant of a visitor visa complete with its own applicable legal framework. While the information concerning his siblings may be relevant, the Tribunal has placed more weight on the personal circumstances of the visa applicant.
Having weighed the various considerations and evidence provided, the Tribunal finds the visa applicant has provided sufficient evidence of having several ties to Myanmar that outweigh any concerns about whether the applicant genuinely intends to stay in Australia for the purpose for which the visa is granted. Further reasoning is set out below.
Firstly, on the oral evidence of the visa applicant and his partner, the Tribunal has placed significant weight on the fact that the visa applicant has operated, and continues to operate, a viable business in Myanmar.
Secondly, in addition to his business interests, the visa applicant has provided evidence that his personal circumstances have changed since lodging his visa application. He states he has been in a defacto relationship for approximately 18 months and is planning to marry. The Tribunal received oral evidence from both the visa applicant and his defacto partner that they have mutually agreed to delay their marriage plans while the family is mourning. The visa applicant also gave evidence that he now has, through his relationship, [children] (aged [Ages] respectively) and is involved in daily carer activities. The defacto partner explained to the Tribunal she has three biological children and three adopted children. The Tribunal accepts this to be true and has placed weight on these personal and family ties as a reason the visa applicant will seek to return to Myanmar.
Thirdly, the visa applicant owns real property in Myanmar which presents further ties to Myanmar. The Tribunal has received written and oral evidence that the visa applicant owns an investment property from which he derives rental income and joint ownership of the family home in Yangon, that he shares (at law) with his sisters. The Tribunal has received submissions from the visa applicant’s representative that states he is likely to become the sole legal owner of the family home in Yangon in the future, because his sisters are intending to apply for Australian citizenship, and upon conferral of citizenship the sisters will likely lose their Myanmar citizenship, and consequently any rights to the property (because Myanmar does not permit dual citizenship).
There is no documentary evidence presently before the Tribunal to suggest that the sisters have made applications for Australia citizenship yet, however the Tribunal accepts that the visa applicant has lived in the home for approximately [Number] years, presently has joint-ownership of the property and I consider that alone provides a sufficiently strong incentive for the visa applicant to return to Myanmar.
Additionally, the defacto partner told the Tribunal the visa applicant has a significant network of contacts in Myanmar, both in Yangon, and regionally, owing to his business. She says he is active member of the local community and has dedicated much time to assisting in disaster recovery efforts after the earthquake. The Tribunal received photographic evidence to support these claims and accepts them to be true, accordingly, the Tribunal has placed some weight on this factor.
The visa applicant also gave oral evidence that he had previously travelled to [Countries 1-3] for business purposes. The Tribunal has been provided with a copy of the visa applicant’s passport which contains entry stamps that support the claim. The visa applicant states he complied with the visa conditions on each occasion. There is no information available to the Tribunal to suggest otherwise. Accordingly, the Tribunal accepts the visa applicant has previously complied with other international visas granted to him, however, has only placed a little weight on this factor because it is not supported by verifiable documentary evidence.
The Tribunal put adverse country information to the visa applicant in the hearing, and noted that the challenging political, economic and security situation that exists in Myanmar[1] might be a reason that the visa applicant may not remain in Australia on a temporary basis.
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Myanmar, 7 April 2025.
However, having reviewed the volume of documentary evidence provided, and having heard a range of witness testimonies including the visa applicant’s response, the Tribunal is satisfied that the visa applicant has managed, to his credit, to operate a successful business in Myanmar over a period of approximately seven years and has multiple other reasons to return. The Tribunal considers the visa applicant’s personal circumstances differ from the broader experience of many Myanmar nationals expressed in the country information and does not attribute negative weight to this consideration.

Having accepted that the visa applicant has property, business and genuine family ties to Myanmar, the Tribunal considers the combination of these interests supports the view that the visa applicant is genuinely intending a temporary stay in Australia for the purposes of participating in his family matters and religious customs with his siblings.
Security Bond
The Tribunal took evidence from the review applicant to the effect that he would be willing to lodge a security bond if requested by the delegate. He said he would ‘take full responsibility’ and had AUD10,000 he could lodge immediately, and he could possibly raise more funds with his sisters, if it was required.
CONCLUSION
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.
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: 8 July 2025
Representative for the Applicant: Ms Christina Lam, LAM Partners Lawyers