Le (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Visitor) (Tourist stream), made by Mr Thanh Ha Le, a national of Vietnam. The applicant sought to visit his married daughter and son, and other family members in Australia for a period of 12 months. The review applicant, Ms Huong Thi Le, is the applicant's daughter residing in Australia. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria under clause 600.211 of the Migration Regulations 1994, specifically whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted.

The Tribunal was required to consider three aspects under clause 600.211: whether the applicant had complied substantially with the conditions of his last substantive visa or any subsequent bridging visa; whether the applicant intended to comply with the conditions of the Subclass 600 visa; and any other relevant matter. The Tribunal noted that the applicant had previously visited Australia and complied with visa conditions, giving weight to this past compliance. The potential conditions for the Subclass 600 visa included not working in Australia, not remaining in Australia after the end of the permitted stay, and potentially a condition preventing the grant of a further substantive visa while remaining in Australia.

In its reasoning, the Tribunal acknowledged the applicant's intention to visit family, a purpose consistent with the Tourist stream. It considered the applicant's personal circumstances, including his wife and a 16-year-old son residing in Vietnam, and his desire to visit his children in Australia. Crucially, the Tribunal took into account evidence that the applicants felt "penalized" for requesting a 12-month stay and indicated a willingness to accept a shorter period. Given the applicant's past compliance with visa conditions and the expressed flexibility regarding the duration of stay, the Tribunal was satisfied that the applicant genuinely intended to stay temporarily in Australia.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria for a Subclass 600 (Visitor) visa for a 3-month period, specifically clause 600.211.