Hodgkins (Migration)

This matter concerned an application for a Subclass 600 (Visitor) visa by a visa applicant seeking to visit family in Australia. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the visa applicant met the requirements of clause 600.211 of Schedule 2 to the Migration Regulations 1994 (Cth), which mandates satisfaction that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

The Tribunal was tasked with assessing two primary considerations under clause 600.211: whether the visa applicant had substantially complied with the conditions of their last substantive visa or any subsequent bridging visa, and whether they intended to comply with the conditions of the Subclass 600 visa. The relevant conditions for the Subclass 600 visa included prohibitions on working, engaging in study for more than three months, obtaining a substantive visa while remaining in Australia (other than a protection visa), and remaining in Australia after the permitted stay. The Tribunal also had to consider any other relevant matters, including the applicant's immigration history and family ties in Australia and overseas.

The Tribunal noted the visa applicant's compliance with a previous visitor visa in 2011 and a temporary work (457) visa from 2012. A point of contention arose from the applicant lodging a migration visa application in 2017 while still holding the 457 visa. The Tribunal accepted evidence that this action was lawful and that the applicant had a legitimate expectation of a favourable outcome, which was impacted by subsequent changes to government skills requirements. The applicant subsequently complied with the revised regime and departed Australia with his daughter, who is now completing nursing studies in the Philippines. The Tribunal gave weight to the applicant's past compliance and also considered the presence of siblings in both Australia and the Philippines.

Ultimately, the Tribunal was satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose of a family visit, finding that the requirements of clause 600.211 were met. Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, directing that the visa applicant met the criteria under clause 600.211 and Public Interest Criterion 4011.