Leyesa (Migration) - [2025] ARTA 2143

LEYESA (MIGRATION) [2025] ARTA 2143 (27 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Elma Sarmiento Leyesa
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2312816

Tribunal:General Member M Graham
Place:Canberra
Date: 27 June 2025
Decision: The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 27 June 2025 at 3:00pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – lengthy stay due to the COVID19 pandemic – care for grandchild – family bereavement – compassionate circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 600.211, 600.221, 600.222, 600.611
CASES
Patel v MICMA [2023] FedCFamC2G 1040
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The primary review applicant (the applicant) is a citizen of the Philippines and is 72 years old. She arrived in Australia on 22 September 2019 on a Visitor visa subclass 600 and extended her stay due to the border closure from 2020. The applicant was subsequently granted a series of onshore visitor visas because her daughter, an Australian citizen, was suffering from cancer and needed her support and assistance. The applicant’s daughter died on 29 October 2022 and on 8 November 2022 the Department of Home Affairs granted the applicant another visa, to remain in Australia after the death of her daughter.
This is an application for review of a decision made by a delegate of the Minister on 28 July 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 applicant applied for the visa on 8 May 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 visa 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 the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia, given the total length of time she has already spent in Australia on temporary visas, or that the applicant has a strong incentive to return to her country of residence.
The applicant appeared before the Tribunal on 3 June 2025 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ryan Chua, the son-in-law of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicant was represented in relation to the review and the representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 applicant seeks the visa for the purposes of a further stay of up 12 months to care for her granddaughter in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
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 Tribunal accepts, on the basis of Departmental records, that the applicant arrived in Australia on 22 September 2019 to visit her daughter and could not return due to the pandemic. The Tribunal also accepts, based on written and oral submissions, that the visa applicant’s daughter, was diagnosed with a metastatic cervical cancer shortly afterwards and that the applicant stayed with her during her cancer treatment, including surgery and chemotherapy. The Tribunal also accepts based on the death certificate provided, that the applicant’s daughter died on 29 October 2022. According to the applicant and her son-in-law, she remained in Australia to help her son-in-law care for his young daughter, then aged six. The Tribunal accepts that she has cared for her daughter and grandchild and worked in the family home during that time and has not studied or worked outside the home. The Tribunal also accepts the applicant’s evidence that she has no income or savings, her daughter paid for her airfare in 2019 and she has lived in the family home in Melomba and her son-in-law has paid for her living expenses while in Australia.
The Tribunal also took into account written and oral submissions made by the visa applicant’s legal representative, including submissions dated 24 June 2025, outlining the applicant’s immigration history. The applicant arrived in Australia on 22 September 2019 on a Visitor visa subclass 600 and extended her stay due to the border closure from 2020. The Department granted her a series of onshore visitor visas because her daughter, an Australian citizen, was suffering from cancer and needed her support and assistance. The applicant’s daughter died on 29 October 2022 and on 8 November 2022 the Department granted the applicant another visa, to remain in Australia after the death of her daughter.
The legal representative submitted that while the applicant has been in Australia for more than five years and is seeking a further 12 months, she has at all times held valid bridging visas and has not overstayed or breached any conditions of her visas. She noted that the applicant had tried to return to the Philippines in December 2023 when her husband became very ill but the Department had refused her application for a Bridging visa B. A copy of the applicant’s plane ticket, dated December 2023, was also submitted, to demonstrate the applicant’s intention to comply with her visa conditions and to not stay in Australia permanently. He legal representative also submitted that the applicant has not applied to remain in Australia permanently. The Tribunal noted that the Bridging visa application decision is still under review.
The applicant also submitted that she travelled to Malaysia in 2010 for two weeks to visit her daughter but did not need a visa on that occasion.
Taking into account the evidence outlined above regarding compliance with previous visa conditions and the reasons why the applicant applied for a series of visitor and bridging visas, the Tribunal concluded the applicant has complied substantially with the conditions of the last substantive visa held and subsequent bridging visas in accordance with cl 600.211(a).
The Tribunal must also consider whether the 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.
The Tribunal took into account the evidence of the visa applicant, her son-in-law as well as legal submissions that the applicant does not intend to stay permanently in Australia and is seeking a visitor visa for a maximum period of 12 months. The Tribunal has no evidence before it that the applicant intends to work or study in Australia and accepts the visa applicant’s evidence that she has been caring for her family, first for her daughter then for her grandchild and that the purpose of the current visa application is to care for her grandchild for a further period. The Tribunal is satisfied that the applicant intends to comply with conditions 8101 and 8201.
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The Tribunal referred to Patel v MICMA in which the Cour held that an applicant’s immigration history, including the total length of time an applicant has spent in Australia on temporary visas is a relevant matter[1], particularly when an applicant has already spent considerable time in Australia. The Tribunal considered the applicant’s previous visa application history and previous travel to Australia and finds, based on Departmental records, that for the period 22 September 2019 – 3 June 2025, the date of the hearing, the total length of time the applicant has spent in Australia is 2082 days.
[1] Patel v MICMA [2023] FedCFamC2G 1040 at [52].
The Tribunal also noted that the applicant has applied for a visitor visa for a further stay of up to 12 months, for the purpose of caring for her granddaughter until she is older and Mr Chua has made alternative childcare arrangements. The Tribunal took into account the applicant’s evidence that she would like to “guide her grandchild until she is able to look after herself”, that she does not intend to stay in Australia permanently, that she would like to return to the Philippines where her husband and other daughter reside, that her husband is elderly and not in good health but also that she does not yet feel ready to leave her granddaughter and will miss her very much if she has to go home.
The Tribunal accepts that the applicant has had conflicting family responsibilities in Australia and the Philippines over the past five years and that the family has experienced difficult circumstances since the cancer diagnosis and death of the applicant’s daughter in Australia. The Tribunal also accepts that since the death of the applicant’s daughter, the applicant has become one of her daughter’s primary carers. However, the Tribunal also notes in relation to the visa applicant’s granddaughter, who is nine years of age, that she will need more than 12 months of childcare before she is able to ‘look after herself’, the applicant’s expressed wish, and finds the applicant’s evidence in this regard is not consistent with the maximum period of 12 months sought for the visitor visa or the intention to stay temporarily in Australia .
The Tribunal also noted that the child’s primary carer is her father, Mr Ryan Chua, the applicant’s son-in-law and an Australian citizen. Mr Chua gave evidence to the Tribunal that he works night shifts at Sydney airport, has a mortgage to pay off and is very grateful to his mother-in-law for staying after his wife died and caring for his daughter. She has been a second mother to his daughter and his daughter has developed a very close relationship to her grandmother. He appreciates that the applicant has been away from her husband and other daughter for a long time but said it was her choice and the family supported her decision.
He also submitted that he has not been able to make alternate childcare arrangements because he has no other family in Australia and since buying his house, lives some distance from friends who might be able to help. Because of his working hours he believes it would be difficult to find alternative childcare arrangements which are suitable and affordable but he has not explored the possibility of formal childcare arrangements. He cannot afford to lose his job to care for his daughter himself.
The Tribunal took into account the compassionate family circumstances of the applicant and accepts that Mr Chua has faced many difficulties since his wife passed away. The Tribunal accepts that Mr Chua works night shifts at Sydney airport and needs childcare arrangements for his daughter while he is at work and that the applicant has provided that care for the child and support to the household since his wife died. However, the Tribunal also notes that Australia has various formal childcare services available to working parents, including out-of-hours and home based care.
In relation to maintaining the family relationships, if the applicant has to return to the Philippines, Mr Chua stated that he is able to pay for his mother-in-law’s airfare back to the Philippines. He also stated that he and his daughter could afford to travel to the Philippines to visit the applicant in future. He is grateful to the Australian government for allowing the applicant to stay so long. He also requests that the applicant, as the closest family member to his wife who has passed away, be allowed to remain a little longer to provide emotional and physical support to his daughter, who has been left without a mother.
The applicant’s legal representative submitted that despite the visa applicant’s total length of stay in Australia, it would be appropriate to grant her a visitor visa for a further twelve months, taking into account the compelling and compassionate circumstances of the family, to allow the applicant to remain in Australia and give Mr Chua, who works nightshifts at the airport, more time to make alternative childcare arrangements. According to the visa application and legal submissions, twelve months is the maximum length of time sought by the applicant for the purpose of preparing her grandchild psychologically for life without her mother. She submitted the applicant has no intention to stay permanently in Australia; she wishes to return to the Philippines to see her other daughter and her husband, who is suffering from various medical conditions and her only wish is to spend more time with her granddaughter in Australia, before she returns.
In making its findings the Tribunal must engage in a difficult weighing exercise, taking into account the visa applicant’s compliance with past visa conditions, her intention to comply with the conditions of a visitor visa, the purpose for which the visitor visa is sought and any other relevant matters including the total length of time already spent in Australia, the duration of the proposed visit and the compelling and compassionate circumstances of the applicant and her family.
In conclusion the Tribunal finds, taking into account the total length of time the applicant has already spent in Australia, namely 2082 days, the further 12 month’s duration of the visit applied for, evidence from the applicant and her son-in-law about the purpose of her visit as well about the difficult circumstances of the applicant’s son-in-law and granddaughter over the past six years, that the applicant does not have a genuine intention to stay temporarily in Australia for the purpose and proposed duration of the visit for which the visa is granted. While the Tribunal accepts that her intention at the time of arrival in 2019 was to stay temporarily in Australia and that the circumstances of her daughter’s illness compelled her to extend her stay, the Tribunal is satisfied, based on evidence provided by the applicant and her son-in-law, that the family situation has now stabilised. In relation to her future intention, the Tribunal gave greater weight to the evidence that the applicant has now become one of her granddaughter’s primary carers, her son-in-law has not sought alternate childcare arrangements and according to her own evidence she wishes to stay in Australia until her granddaughter is older and more independent.
For the above reasons the Tribunal is not 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 not met.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.
Date of hearing: 3 June 2025
Representative for the Applicant: Mrs Marimi Tanag (MARN: 1386887)