Mahawaduge (Migration)

The Administrative Appeals Tribunal considered the applications of two individuals for Visitor (Class FA) visas, subclass 600 (Visitor) in the tourist stream. The primary dispute concerned whether the applicants genuinely intended to stay temporarily in Australia and comply with visa conditions, particularly in relation to visiting family. The Tribunal was tasked with reviewing the delegate's decision to refuse these visas.

The central legal issue before the Tribunal was the interpretation and application of clause 600.211 of the Migration Regulations 1994. This clause requires the Tribunal to be satisfied that a visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. This assessment involves considering whether the applicant has substantially complied with the conditions of their last substantive visa or any subsequent bridging visa, whether they intend to comply with the conditions of the proposed Subclass 600 visa, and any other relevant matters. The specific conditions under consideration were not to work in Australia (condition 8101) and not to engage in study or training for more than three months (condition 8201).

The Tribunal reasoned that the first applicant, a housewife with sufficient funds, intended to comply with the work and study conditions. It also accepted that her intention to accompany her mother, who had a history of compliant visa entries and was dependent on the applicant for travel assistance, provided a substantial measure of comfort that the applicant would depart Australia within the visa's validity. The Tribunal also gave some weight to the second applicant's claimed fish-trading business, which provided income to the first applicant, as an incentive for her return. However, the Tribunal found that it lacked jurisdiction to review the delegate's decision concerning the second applicant, as his relationship to the primary applicant was not specified and the decision was not reviewable under Part 5 of the Migration Act 1958.

Consequently, the Tribunal remitted the applications for reconsideration. The direction was that the first-named visa applicant met the criteria under clause 600.211 for a Subclass 600 visa. The Tribunal explicitly stated it did not have jurisdiction in respect of the second-named visa applicant.