HE (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, subclass 600, Tourist stream. The applicant, a 26-year-old male from China, had resided in Australia for approximately ten years, primarily on student visas. Following the cessation of his last student visa, he applied for a visitor visa, stating an intention to travel within Australia for up to three months before returning to China to care for his mother and manage his deceased father's property.

The central legal issue before the Tribunal was whether the applicant met the genuine temporary stay criterion under clause 600.211 of the Migration Regulations 1994. This required the Tribunal to be satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was sought, considering his compliance with previous visa conditions, his intention to comply with the conditions of the proposed visitor visa, and any other relevant matters. The Tribunal specifically examined whether the applicant had complied substantially with the conditions of his last substantive visa and whether he intended to comply with conditions such as not working (8101) and not engaging in study for more than three months (8201) if granted the visitor visa.

The Tribunal's reasoning focused on several factors. It noted that the applicant had not been enrolled in a course of study since November 2017, despite claiming to wish to continue his studies. Furthermore, the Tribunal found the applicant's claim of being supported by a relative in Australia, without providing evidence, to be unlikely, especially given the extended period since his student visa ceased. The Tribunal inferred that the applicant had likely been working in Australia without authorisation since December 2018 and concluded he would likely continue to do so if granted a visitor visa, thus not intending to comply with condition 8101. Additionally, the Tribunal found the applicant's failure to undertake the extensive travel he had outlined to be unexplained and indicative of an intention to prolong his stay in Australia rather than genuinely travel.

Consequently, the Tribunal found that the requirements of clause 600.211 were not met. The decision under review, which affirmed the refusal to grant the visa applicant a Visitor (Class FA) visa, was therefore affirmed.