Gossain (Migration) - [2025] ARTA 915

GOSSAIN (MIGRATION) [2025] ARTA 915 (11 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Hitesh Gossain
Visa Applicant:  Mr Mannu Kumar Gossain
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2316143

Tribunal:General Member Rosa Gagliardi
Place:Australian Capital Territory
Date: 11 June 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 11 June 2025 at 10:03am
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – accompanying aging parents to visit brother and his family – previous compliant travel – parents’ visa granted – no record of income, even though employed – family’s financial and social position and visa applicant’s care for parents and work managing property portfolio – no change to financial and personal circumstances since previous visas granted – no extended family in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211
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 7 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 they considered that the applicant did not appear to have a regular record of income, even though he was employed.
The review applicant appeared before the Tribunal on 5 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Australia.
For the following reasons, the Tribunal has concluded that the decision under review is set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
In the present case, the visa applicant seeks the visa for the purposes of visiting his brother and family in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
cl.600.211(a)
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 visa applicant has travelled to Australia previously with his parents and the review applicant’s wish was to have his brother accompany his parents again as they are ageing and need support during travel. The visa applicant has accompanied his parents to Australia previously on four occasions:
-In November 2011
-December 2015
-March 2017
-April 2019
While the visa applicant’s visa was refused, his parents’ visa was granted.
The Tribunal has taken into consideration that by virtue of the Departmental notes, it is acknowledged that the applicant has complied with his visa conditions on previous visits to Australia. The review applicant’s parents have also complied with their visa conditions and the review applicant has a strong record in inviting persons to Australia who then return to India without breaching their visa conditions. This record extends to the visa applicant. Indeed, on one occasion in April 2019, it emerged at hearing that the visa applicant had only stayed in Australia for 3 days because the review applicant’s wife was grieving a parent and could not cope with having guests, so the visa applicant and his parents went to New Zealand for a short period before returning to India.
The Tribunal places significant weight on the visa applicant’s previous visa compliance. Indeed, as the Tribunal noted at hearing, had the visa applicant wanted to achieve a migration outcome he could have done so well before now, when he was much younger, meaning he could have worked or studied to establish himself in Australia. The applicant never sought to do so, and the Tribunal is satisfied that he will not do so now at the age of almost 50 years.
As the review applicant has stated in his submission to the Tribunal, “He (the visa applicant) has been granted a tourist visa 4 times in the past 12 years with similar financial and personal circumstances. So, if he has been granted the visa before with similar financial/personal circumstances, he should be provided this time as well”. The Tribunal considers this reasoning is sound as the Tribunal has not found that any of the visa applicant’s circumstances have changed since the previous grants of his visas.
cl.600.211(b)
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:
·8101 – must not work in Australia
·8201 – must not engage in study or training in Australia for more than 3 months
·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia
·8531 – must not remain in Australia after end of permitted stay.
The visa applicant is the review applicant’s only sibling. The visa applicant has his own business but from the hearing it emerged that the applicant’s work life was not a significant feature of his life in India overall. The Department noted that the applicant’s personal finances did not reflect someone who had a regular salaried job. Having considered the evidence overall, however, it is evident that the applicant does not have a strong need to work regular hours, or for an employer, given his family’s strong financial position.
The visa applicant’s lifestyle is stress-free in India and his work is more a hobby wherein he spends some of the time taking care of his family’s vast property portfolio. The Tribunal notes that sale deeds were submitted at the time of application for these properties. The review applicant has set out four properties and their worth in a submission to the Tribunal and the Tribunal has no doubt that the sums submitted equate to the properties’ approximate worth. The Tribunal considers that the visa applicant’s family economic and social circumstances in India represent a significant incentive for him to return to his comfortable lifestyle and to continue to help his aged parents with oversight of their properties.
The Tribunal also places significant weight on the review applicant’s evidence at hearing that he and his brother (the visa applicant) had come to an unstated agreement that given the review applicant was not able to care for his parents living and working in Australia, that the visa applicant should always remain in India so that their parents were not left alone. The Tribunal accepts that the visa applicant’s parents want to live their old age in India and that the visa applicant as a bachelor is best placed to care for them as he lives in their home. The Tribunal from the evidence at hearing was persuaded that the visa applicant is strongly committed to his role as a carer for his parents.
The visa applicant’s father is a retired Major General of the Indian Army, and the family is well-educated and law abiding.
From a practical perspective, the Tribunal is satisfied that the applicant at his age would not start a new career in Australia or seek to undertake further study. Nor is the applicant fleeing from any kind of persecution in India as his family is highly respected and a part of the Indian establishment.
cl.600.211(c)
The Tribunal has also considered all other relevant matters (cl.600.211(c)).
The review applicant has demonstrated that he and his wife are in a financially sound position and that there would be absolutely no need for the visa applicant to work in Australia. The review applicant came on a work visa and from all indications has always abided by Australia’s immigration laws and the general laws of the country, making a valuable contribution through his and his wife’s work. They have no extended family in Australia and have two children who wish to see their uncle to spend time with him. The Tribunal is satisfied that this familial connection is important to both the visa applicant and the review applicant and that there is no ulterior motive for the visit, apart from the visa applicant also accompanying his elderly parents on the trip to Australia.
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: 5 June 2025
Representative for the Applicant: N/A