Sfika (Migration) - [2025] ARTA 1037

SFIKA (MIGRATION) [2025] ARTA 1037 (4 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Maria Angeliki Sfika
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2313420

Tribunal:General Member D Stewart
Place:Canberra
Date: 4 July 2025
Decision: The Tribunal sets aside the decision under review and remits the application for a Visitor (Class FA) visa for reconsideration, in accordance with an order that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 04 July 2025 at 4:33pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant and compliance with conditions – teenager resident in Australia from very young age – family, friends and education in Australia and minimal ties to home country – parents’ visa histories and intentions for applicant – father’s application for ministerial intervention after working visa refused and mother’s intention to apply for partner visa with new partner, with applicant as dependant – department’s procedures advice manual – intention to apply for further visa does not necessarily indicate not genuine temporary entrant – unexplained delay in issuing bridging visa – consent to decision without hearing – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(c)
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211
CASES
G v MIBP [2018] FCA 1229
2010120 (Refugee) [2025] ARTA 550

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 10 August 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 1 August 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 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 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 applicant did not meet cl 600.211 because the delegate was not satisfied that the applicant genuinely intends to stay temporarily in Australia. The delegate considered the applicant’s previous immigration and travel history and concluded that the applicant intended ‘something more akin to de-facto residence in Australia’ than a genuine temporary visit.
The applicant sought review of that decision on 31 August 2023 in the then Administrative Appeals Tribunal (AAT). They did not provide any additional documents at the time of their…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sfika (Migration)

Details

AGLC: Sfika (Migration) [2025] ARTA 1037
Case: [2025] ARTA 1037
Decision Date: 4 July 2025

CaseChat Overview and Summary

In Sfika (Migration), the applicant, a 13-year-old Greek citizen, challenged the refusal of her application for a Subclass 600 (Visitor) visa. The primary focus was on whether the applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa was granted, in accordance with the Migration Regulations. The applicant, who had been in Australia since early 2012, sought the visa to remain in the country while her mother applied for a partner visa. The Tribunal considered the applicant's extensive ties to Australia, including her education and social networks, and her minimal ties to Greece. Additionally, the Tribunal noted the Department’s procedural guidelines, which state that an intention to apply for a further visa in Australia does not necessarily indicate a lack of genuine temporary stay intention.

The Tribunal examined the purpose and duration of the applicant's intended stay, finding that her purpose was not related to business or medical treatment and therefore eligible for a tourist visa. The Tribunal also reviewed the applicant’s compliance with the conditions of her last substantive visa, a visitor visa granted on 1 May 2023, which ceased on 1 August 2023. The applicant had complied with the conditions of this visa, which included not working in Australia and not engaging in study or training for more than 3 months. There was no evidence of the applicant breaching these conditions. Furthermore, the Tribunal assessed the applicant’s intention to comply with the conditions of the Subclass 600 visa, considering the Department's guidance on assessing genuine temporary stay intentions.

The Tribunal concluded that the Department’s procedural guidelines appropriately informed the assessment of the applicant’s intention to stay temporarily. The guidelines highlighted that an intention to apply for a further visa in Australia does not necessarily negate a genuine temporary stay intention. The Tribunal was satisfied that the applicant genuinely intended to stay temporarily in Australia for the purpose of her mother’s partner visa application, and that she intended to comply with the conditions of the Subclass 600 visa. The Tribunal set aside the decision and remitted the matter for reconsideration, considering the Tribunal's decision without a hearing due to the minor status of the applicant and the straightforward nature of the case.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.BACKGROUND The copies of the applicant’s birth certificate and biometric information in her Greek passport provided with her application for the visa indicate that the applicant is 13 years old and born in Chios, Greece. She acquired Greek citizenship on 15 July 2011. Copies of their biometric information from the passports provided to the Tribunal indicate that the applicant’s mother and father are also Greek citizens. Movement records show the applicant first arrived in Australia on 14 February 2012 and has only been out of the country from September to October 2016 and from July 2022 to January 2023. Request for a decision to be made without holding a hearing In a letter sent on 19 March 2025, the Tribunal notified the applicants that a hearing by video conference in relation to their application had been scheduled for 29 April 2025. That letter asked the applicants to provide the enclosed ‘Response to hearing notice’ form within 7 days of receipt of the letter and to provide all further documents the applicants intended to rely on to support their case by 22 April 2025. That letter also noted that the applicants could use the enclosed ‘Response to hearing notice’ form to request the Tribunal make a decision without a hearing. The Tribunal’s letter continued:please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision. On 28 April 2025, the applicant’s representative provided the Tribunal with a document setting out the applicant’s response to refusal ground and the outcome requested from the Tribunal. That document also stated:The Applicant and her family respectfully request that the Tribunal determine this matter “on the papers” without the need for a formal hearing, given the minor status of the applicant (13 years old) and the circumstances outlined below. The circumstances outlined in the document included the applicant’s:a.significant connection to Australia, having attended childcare and preschool in Australia from January 2015 and then attending Kindergarten from January 2017 through to her current enrolment in Year 8 at the same school. b.minimal ties to Greece, with only a brief period in 2022 when she returned to Greece but continued her schooling in Australia remotely.c.Australian support network and dependence, with the applicant’s immediate family, friends, schoolmates, and broader social networks based entirely in Australia, and being dependent on her mother who resides lawfully in Australia and who has a committed relationship with an Australian citizen.d.claimed family visa history and hardship, after the applicant’s father was refused a Temporary Work (Skilled) visa which left the family in the tribunal system in Australia for an extended period and which they say contributed to the breakup of the applicant’s parents’ marriage. The applicant’s father is currently seeking Ministerial intervention in his case, and her mother is intending to lodge a partner visa application with her new partner.e.clear future visa pathway, with the applicant’s mother and her Australian citizen partner intending to lodge a partner visa application in the next 3 months after the applicant’s mother’s divorce proceedings in Greece is finalized. The applicant’s mother intends to include the applicant as a dependant on her partner visa application.

Evidence

Evidence Before The Court

I will therefore decide this proceeding without conducting a hearing.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.Purpose and duration of visit Under cl 600.221, an applicant for a tourist visa must intend to visit or remain in Australia to visit certain Australia citizens or permanent residents, or for any other purpose that is not related to business or medical treatment. Clause 600.222 restricts the intended purposes of a visa applicant who is in Australia who holds a student visa or has been the holder of a student visa since last entering Australia. The applicant’s movement records state that she last arrived in Australia on 1 January 2023 on a subclass 651 eVisitor visa and has not held a student visa since that time. Clause 600.222 therefore does not apply to the visa applicant. In the present case, the visa applicant seeks the visa for the purposes of remaining in Australia while her mother applies for a partner visa. As this purpose is not related to business or medical treatment it is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222. The applicant’s representatives have submitted that the applicant intends to rely on the visitor visa for her stay in Australia for up to 3 months until either she is granted a further visa on the basis of her mother applying for a partner visa, or she leaves the country. Compliance with conditions of last substantive visa 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 last substantive visa held by the applicant was a visitor visa granted on the 1 May 2023. This visa ceased on 1 August 2023. This visa was subject to the conditions that the applicant must not work in Australia and not engage in study or training in Australia for more than 3 months. Therefore, any study that the applicant may have engaged in while holding that substantive visa was for less than a three-month period. The applicant was granted a bridging visa on 2 August 2023 which was subject to the condition that the applicant not work in Australia. There is no evidence suggesting that the applicant engaged in work while in Australia in breach of either her last substantive visa or subsequent bridging visa. There was also no condition on her bridging visa limiting her period of study while in Australia.Intention to comply with conditions

Decision

Reasons for decision

Movement records for the applicant’s mother confirm that she has been issued 2 Visitor visas since she last arrived in Australia in January 2023 on an eVisitor visa and is currently on a bridging visa. There is no suggestion that the applicant’s mother has been present in Australia unlawfully due to the expiry of a substantive or bridging visa or has breached any of the conditions of her various visas while in Australia. Conclusion The Tribunal notes that the Department’s procedural guidelines, Procedures Advice Manual (PAM) 3, includes the following in relation to the grant of a Visitor visa:Intention to make a further application in AustraliaIf an applicant applies for a visitor visa but intends to make a further visa application in Australia (whether this intention is stated or not), this does not necessarily indicate that the applicant does not intend a genuine temporary stay and is not a reason in and of itself to refuse the visitor visa. If the Regulations allow an application to be made in Australia by an FA-600 visa holder in Australia, s65 delegates should not be seeking to block this pathway.In addition, an intention to apply for a further visa in Australia does not necessarily indicate that the person will not leave Australia before the FA-600 visa ceases. The question to consider is not “will this person apply for a visa in Australia” but rather, “if this person does not apply for another visa in Australia, or if they apply and are refused, will they abide by the conditions of the visa and will they leave Australia”. The answer to this will help to determine if the applicant intends a genuine temporary stay.If there is a stated intention to apply in Australia for a visa (such as a Partner visa), s65 delegates should focus on assessing if the applicant intends a genuine temporary stay in relation to the FA-600 visa for which the person have applied – the focus is not on assessing any relationship:·The genuineness of a relationship will be assessed if and when a Partner application is made. Applying for a Partner visa in Australia is a legitimate visa pathway.·It is acceptable for a person to apply for an FA-600 visa in order to be with their partner to maintain an established relationship.·An applicant who discloses an intention to continue a relationship (or, enter into a relationship (as they have not met before)) should not be disadvantaged as a result of that disclosure.Taking a fair and reasonable approachOfficers should take a fair and reasonable approach to the genuine temporary stay requirement, particularly if the applicant is in a continuing partner relationship with an Australian citizen or permanent resident and/or there are children involved.The focus should be on the current intentions of the applicant. Consequently, the genuine temporary stay requirement can be satisfied, even if there is a possibility that the applicant might later attempt to make a further application in Australia, seek permanent residence and/or return to Australia. …

Ratio Decidendi

Legal Principle Established

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.Purpose and duration of visit Under cl 600.221, an applicant for a tourist visa must intend to visit or remain in Australia to visit certain Australia citizens or permanent residents, or for any other purpose that is not related to business or medical treatment. Clause 600.222 restricts the intended purposes of a visa applicant who is in Australia who holds a student visa or has been the holder of a student visa since last entering Australia. The applicant’s movement records state that she last arrived in Australia on 1 January 2023 on a subclass 651 eVisitor visa and has not held a student visa since that time. Clause 600.222 therefore does not apply to the visa applicant. In the present case, the visa applicant seeks the visa for the purposes of remaining in Australia while her mother applies for a partner visa. As this purpose is not related to business or medical treatment it is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222. The applicant’s representatives have submitted that the applicant intends to rely on the visitor visa for her stay in Australia for up to 3 months until either she is granted a further visa on the basis of her mother applying for a partner visa, or she leaves the country. Compliance with conditions of last substantive visa 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 last substantive visa held by the applicant was a visitor visa granted on the 1 May 2023. This visa ceased on 1 August 2023. This visa was subject to the conditions that the applicant must not work in Australia and not engage in study or training in Australia for more than 3 months. Therefore, any study that the applicant may have engaged in while holding that substantive visa was for less than a three-month period. The applicant was granted a bridging visa on 2 August 2023 which was subject to the condition that the applicant not work in Australia. There is no evidence suggesting that the applicant engaged in work while in Australia in breach of either her last substantive visa or subsequent bridging visa. There was also no condition on her bridging visa limiting her period of study while in Australia.Intention to comply with conditions