Shinn (Migration) - [2025] ARTA 911

SHINN (MIGRATION) [2025] ARTA 911 (1 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Rickey Dean Shinn
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2313172

Tribunal:General Member Rosa Gagliardi
Place:Australian Capital Territory
Date: 1 June 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 01 June 2025 at 4:32pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – tourist stream – genuine temporary entrant – retired couple with friends and travel – long periods in Australia on previous visitor and bridging visas – no non-compliance – economic and family ties to home country and no relatives in Australia – no restriction on number of visits or time spent – wife’s separate application on similar facts – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211(a)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 9 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 visa 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 several 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 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 it was considered he did not genuinely intend to stay in Australia temporarily for the purposes of visiting only.
The applicant appeared before the Tribunal on 5 May 2025 from the United States by Microsoft Teams to give evidence and present arguments. The Tribunal also received oral evidence from his spouse, Ms Nancy Ward Shinn, to who has her own application for review of the Departmental refusal. This decision should be read in conjunction with decision no: 2313721 for Ms Shinn as the facts of the case are similar.
For the following reasons, the Tribunal has concluded that the decision under review is set aside, and the matter be remitted for reconsideration.
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 visa applicant seeks the visa for the purposes of returning to Australia for a visit sometime in the future to see friends. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.
cl.600.211(a)
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)).
Essentially the delegate was concerned because:
Departmental records have shown that since 18 October 2017 the applicant has spent 2,097 days in Australia utilising Tourist (FA 600) plus bridging visas and 24 days outside Australia.
The applicant and his wife are currently in the United States. They last departed Australia on 3 July 2024. They are a retired couple who have made friends in Australia and at hearing stated that they had developed a profound connection with the Australian landscape as well. Acknowledging that they had spent a good deal of time in Australia they also noted that they had never breached their visa conditions. They were granted multiple visas and availed themselves of the opportunity to travel within the country.
The Tribunal has also observed the applicants’ movement records and there is nothing in them to indicate that they were ever in Australia without a visa or that either applicant was working in contravention of their visa conditions during their stays here.
Given the applicant’s record in terms of maintaining compliance with his Visitor visas and his Bridging visas, the Tribunal is satisfied that this reflects that the applicant genuinely intends to stay temporarily in Australia, on his next visit whenever that may be. The applicant and his wife were most concerned that the refusal had cruelled their chances of being able to return to Australia, even if they had no immediate plans to travel here.
cl.600.211(b)
The Tribunal must also consider whether the visa 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 follow:
·8101 – must not work in Australia
·8201 – must not engage in study or training in Australia for more than 3 months
·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia
·8531 – must not remain in Australia after end of permitted stay.
The delegate had concerns that the applicant’s stay in Australia on Visitor and Bridging visas was akin to him attempting permanent residence in this country. The evidence submitted to the Tribunal confirms the applicant’s claims that at this stage in his life and that of his wife, they had no intention of moving permanently to Australia as they were economically and emotionally tied to the United States, their home country.
The applicant and his wife have, for example, purchased a property recently in Sarasota, Florida and the Tribunal has sighted the relevant title deed. They have also recently purchased a motorcycle. Evidence of substantial savings has also been submitted. The visa applicant had his own business in the US and was doing well. Their individual retirement savings reflect this to be the case.
In addition, evidence of the couple’s US Federal Tax information has been submitted for 2024 showing the benefits the couple were entitled to in in their home country.
At hearing the couple spoke of how prohibitive health insurance for them in Australia was (even though they continued to pay during their visits), while if they continued to reside in the US permanently, they were entitled to use of their Medicare cards (submitted) which meant they could avail themselves of medical facilities in their own country at a significantly reduced cost. Bupa cost them in Australia $AUD300 per month, which was a disincentive to remain in Australia indefinitely.
The visa applicant also stated at hearing that his elderly father lived in the US as did his sister and that these affective ties were important to him. His wife also had siblings in the US whereas neither had family in Australia.
The Tribunal accepts the couple’s assurances that they do not intend to work or study in Australia as that part of their lives is behind them, and that it would be difficult to see in their circumstances what visa they could apply for to remain in the country. In all the circumstances the Tribunal is satisfied that the applicant and his wife intend to adhere to the conditions of their visas on any future travel to the country.
cl.600.211(c)
The Tribunal has also considered all other relevant matters (cl 600.211(c)).
The couple were genuinely confused as to why on this occasion their Visitor visas had been refused, particularly as they had not breached their visa conditions at any time. They were concerned the refusals would mean they would be excluded from Australia for a period at least, and they might not see the good friends they had made here.
The Tribunal finds that the test as to whether an applicant genuinely intends to stay temporarily in Australia is not the number of visits they have had to the country. The regulations make it clear that the circumstances in the applicant’s home country, being their ties to that country, as well as their past conduct in observing the conditions of their visa and their own personal situation are paramount considerations. There is nothing in the regulations about capping an applicant’s visits to Australia.
Conclusion
For the above reasons the Tribunal is 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 met.
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.
Date of hearing: 5 May 2025
Representative for the Applicant: N/A