Thind (Migration) - [2025] ARTA 2109

THIND (MIGRATION) [2025] ARTA 2109 (10 SEPTEMBER 2025)
Review Applicant:  Mr Yadvinder Singh Thind
Visa Applicants:  Mrs Rajinder Kaur
Mr Kuldeep Singh
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2317956
Tribunal:Brendan Gogarty
Place:Melbourne
Date:10 September 2025

CORRIGENDUM
Date of Corrigendum:7 October 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alteration is made to the statement of reasons for the decision:
The final sentence in paragraph 8 of the written statement of reasons for the decision is altered to read:
“For the reasons set out the Tribunal finds that it has no jurisdiction to conduct a review of the secondary visa applicant’s decision because pre-conditions for his entitlement to a visa and therefore review are not met, and these pre-conditions are jurisdictional facts.”
Statement made on 07 October 2025 at 3:16pm
DECISION AND
REASONS FOR DECISION
Applicant:Mr Yadvinder Singh Thind
Primary Visa Applicant:  Mrs Rajinder Kaur
Secondary Visa Applicant:  Mr Kuldeep Singh

Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2317956

Tribunal:Brendan Gogarty
Place:Melbourne
Date: 10 September 2025
Decision: The Tribunal sets aside the decision under review relating to the Primary Visa Applicant and remits the application for a Visitor (Class FA) visa by the Primary Visa Applicant for reconsideration, in accordance with an order that the Primary Visa Applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
·cl 600.211 of Schedule 2 to the Regulations.
The Tribunal does not have jurisdiction in respect of the Secondary Visa Applicant’s application for review.

Statement made on 10 September 2025 at 3:43pm
CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary entrant – combined review of separate decisions – sponsored by an Australian citizen – no existing grant of a visa – farming of rotational crops – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 45, 65, 338
Migration Regulations 1994, Schedule 2, cls 600.211, 600.231-600.233, 600.612; rr 1.03, 1.05, 2.03
CASES
Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Dyankov & Ors v Minister for Immigration & Anor [2016] FCCA 2167
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision to refuse the applicants’ Sponsored Family Visitor (Class FA) visas. The visa applicants are married, and the primary visa applicant is the sister of the review applicant in this decision, who originally sponsored the visa applicants. The application was made on 26 August 2023 pursuant to s 45 of the Migration Act 1958 (Cth) (the Act).
Sponsored Family Stream visas are a subclass of visitor visas (Subclass 600), with specific and applicable general criteria set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). In this case the delegate found, on 20 October 2023, that:
·The primary visa applicant did not satisfy cl 600.211, which requires the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted; and
- The secondary visa applicant (the primary visa applicant’s husband) did not satisfy clause 600.233, which requires that a Sponsored Family stream visa first be granted to a relative of the sponsor before one can be granted to a non-relative applicant.
The delegate therefore refused each application by separate decisions under s 65 of the Act.
On 6 November 2023 the review applicant applied for a review of each of the delegate’s decisions as part of the same application.
The applicants appeared before the Tribunal on 28 July 2025 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
At the hearing the review applicant requested further time to make submissions and present additional documentary evidence. These were received on 13 August 2025.
For the following reasons, the Tribunal has concluded that the primary visa applicant’s decision be set aside and remitted for consideration and that the Tribunal does not have jurisdiction in respect of the secondary visa applicant’s application for review.
Jurisdiction in respect of the Secondary Visa Applicant
In this case the review applicant sought a combined review of the separate decisions made in respect of the primary and secondary visa applicant. Given the nature of the decision and circumstances – specifically the category of relationship between the applicants’ designated by the Act – of the secondary visa applicant the Tribunal addresses that application first. That is because the regime only permits sponsorship of a limited class of family members, some of which require certain preconditions to exist for the visa to be granted. The secondary visa applicant, as the brother-in-law of the sponsor (the review applicant) is a member of such a class of applicants. For the reasons set out the Tribunal finds that it has has jurisdiction to conduct a review of the secondary visa applicant’s decision because pre-conditions for his entitlement to a visa and therefore review are not met, and these pre-conditions are jurisdictional facts.
The Tribunal’s review jurisdiction in respect of refusals to grant Sponsored Family visas to non-citizens who are not members of the nuclear family of the sponsor is conferred by s 338(5) of the Act.[1] That provision states:[2]
"A decision to refuse to grant a non-citizen a visa is a reviewable migration decision if … the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by … an Australian citizen."
[1] The only other relevant sub-section applicable to the review of a sponsored family visa is 338(7) but that is restricted to non-citizens who are visiting a “a parent, spouse, de facto partner, child, brother or sister of the non-citizen”. As the visa and review applicant are in-laws they fall outside the scope of the provision.
[2] Emphasis added.
Considering the section textually, the Tribunal notes that: first the words "was sponsored" reflect a past factual condition; and second, the phrase "as required by a criterion" past tense factual proposition. In practice the provision, picks up and restricts the scope of 338(5) to the criterion of the sponsored family stream in Schedule 2 (notably cl 600.232) of the Regulations;[3] and secondly, it limits the category of eligible decisions to those where sponsorship by a person (e.g., an Australian citizen) is not only present at the time of decision but was the form of sponsorship which was required by a criterion of that Schedule.[4] A criterion that does not apply to a person cannot be said to "require" them to meet it, and sponsorship outside the prescribed stream is not the sponsorship ‘required’ by the clauses of that stream. The structure of s 338 confirms that review jurisdiction is confined to specific visa types and anterior conditions,[5] which for s 338(5) means the existence of a valid sponsorship under cl 600.232 rather than any claim of sponsorship.
[3] The specific conditions set out for this stream under 600.232 all require sponsorship by different members of the Australian community, including an Australian citizen. In the tourist stream the requirement for sponsorship is at the Minister's discretion.
[4] This is consistent with the finding of the Full Federal Court that the existence of sponsorship is a factual precondition for the exercise of Tribunal jurisdiction under other provisions of s338 mandating sponsorship. Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, [100]-[113] (Katzmann, Robertson and Griffiths JJ.
[5] e.g. the 338(7)(b) requirement that the particulars of the relative are specified in the application.
Under cl 600.232(2) sponsorship by an Australian citizen or permanent resident is required when the visa applicant is a ‘relative’ or a ‘member of the family unit’ of a person who is a relative of the sponsor. The secondary applicant, as a brother-in-law of the review applicant is not a relative of the review applicant as sponsor but is a member of the same family unit as the primary visa applicant, who is a relative of the sponsor.[6] In those circumstances, cl 600.233 also applies to require that “a Subclass 600 visa in the Sponsored Family stream has been granted to another person who is a relative of the sponsor and sponsored by the sponsor in relation to the applicant's visit”.
[6] Regulations, rr 1.03, 105.
Regulation 2.03 of the Regulations picks up the criteria in Sch 2 as the “criteria for the grant of the visa”, for the purposes of s 338(5). For the Subclass 600 Sponsored Family Stream, the relevant provisions are:
· Cl 600.233 restricts the operation of cl 600.232(2) where the operation of cl 600.232(2) where the applicant is not a relative. In such cases sponsorship is only permitted and required if a) a relative of the sponsor has already been granted a Sponsored Family visa, and b) that relative was sponsored by the same sponsor in relation to the current applicant’s visit.
A criterion that does not apply to a person cannot be said to "require" them to meet the criterion relevant to the class of persons it does apply to. The relevant conditions for jurisdiction under s 338(5) set out above, are, then, compound: the applicant must fall within 600.232(2), and where not a relative, the specific conditions set out in cl 600.233 must exist.[7]
[7] This is consistent with the finding of the Full Federal Court that the existence of sponsorship is a factual precondition for the exercise of Tribunal jurisdiction under other provisions of s338 mandating sponsorship. Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, [100]-[113]; See also Dyankov & Ors v Minister for Immigration & Anor [2016] FCCA 2167, (Hartnett J) in which the Tribunal was found not to have jurisdiction where a nomination application must actually be on foot, or if it was refused there must be a review on foot at the time of the review. The Tribunal considers that reasoning to extend to excluding jurisdiction where there cannot be a valid nomination at all because of an express exclusion in the schedule that is enlivened by the facts.
The Tribunal takes this to mean that a decision is only reviewable under s 338(5) where it relates to a non-citizen who has applied for a Sponsored Family (Visitor (Class FA)) visa but is not a relative of the named sponsor, where: :
·     Another person who is a relative of the sponsor has already been granted a visa in the Sponsored Family stream (the grantee);
·     The applicant is a member of the same family unit as the grantee, and
·     That person was sponsored by the sponsor in relation to the grantee’s visit.
The Tribunal’s role in confirming these conditions are met is limited to a binary assessment about the existence of facts whose existence precedes and is anterior to the exercise of review power conferred by s 338(5).[8] That is because the decision to grant a visa is not a matter within the discretion of the Tribunal in the excise of its review functions; only the Department can grant a visa to the other person. In the Tribunal’s view that makes the above stated criteria jurisdictional facts which must exist for the relevant decision to be reviewable.[9]
[8] That is because the decision to grant a visa is not a matter within the discretion of the Tribunal in the excise of its review functions or otherwise. Only the Department can grant a visa to the other person.
[9] Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 179 [56]–[57] (French CJ); City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 148 [28] (Gleeson CJ, Gummow, Kirby and Hayne JJ); Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64 [39]-[42] (Spigelman CJ)
On 4 July 2025 the Tribunal wrote to the review applicant to raise its concerns about its jurisdiction to review the decision made in respect of the secondary visa applicant as follows:
“The secondary visa applicant, Kuldeep Singh, may be excluded from a visa or a
Review The Migration Regulations require a person, like the secondary visa applicant, who is not your direct relative (e.g. parent or sibling) to be a member of the same family unit (e.g. related by marriage) of a person who holds a visa sponsored by an Australian citizen (you, as the review applicant).
In your case the secondary visa applicant, Mr Singh, may have been entitled to be sponsored under a family visa if his wife, the primary visa applicant, Ms Kaur (who is your direct relative), held a valid family visa sponsored by you, as an Australian citizen, at the time of application or review. However, the Presiding Member notes that the primary visa applicant has never held a sponsored family visa and does not hold one at the time of review. The Presiding Member is concerned that may mean that Mr Singh, the secondary visa applicant:
·Is not entitled to a review because the Tribunal doesn't have jurisdiction (that is authority to consider) his review as he doesn't meet the preconditions for a visa (which are set out under s 338(5) of the Migration Act and cl 600.232 & 600.232 of Sch 2 of the Migration Regulations); or
·If it does have jurisdiction to review his application, it will still be required to affirm the decision because he will not meet the criteria in the above provisions. That is the case even if the primary visa applicant was successful in her review - the Tribunal cannot grant a visa, only remit a visa matter for reconsideration - meaning the secondary visa applicant would still not be the member of the same family unit as a person who has a valid sponsored visa when the decision is made.”
The review applicant was encouraged to seek appropriate advice and invited to make submissions in writing or at the hearing. No submissions were received before the hearing and the Tribunal sought to explain the jurisdictional issues again at the hearing to each of the applicants. The review applicant indicated that he had not sought advice but understood the jurisdictional issues and had no submissions to make about them. The review applicant provided the Tribunal with post-hearing submissions relating to other matters in respect of the review which did not address the jurisdictional issues in respect of the secondary visa applicant.
Having reviewed the material before it, the Tribunal is satisfied that no grantee meeting the requirements of 600.233 has at any time been granted a relevant visa. That being the case the other interrelated jurisdictional facts set out above,[10] also do not exist. The Tribunal therefore has no jurisdiction to review the refusal of the secondary visa applicant's visa application under s 338 of the Act.
[10] See paragraph ‎12.
If the Tribunal is incorrect, and for the avoidance of doubt, the Tribunal is satisfied that if it did have jurisdiction, the secondary visa applicant would not meet the criteria of cl 600.232 for the reasons set out in its letter to the review applicant on 4 July 2025.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal is satisfied that the primary visa applicant is a person to whom s 338(5), and the relevant provisions of Sch 2 of the Regulations, apply for the purposes of a reviewable decision.
In respect of the primary visa applicant the issue to be determined is whether she genuinely intends to stay temporarily in Australia for the purposes of cl 600.211. That requires the Tribunal to have 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 applicants seek the visas for the purposes of visiting her Australian family. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.
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 primary visa applicant has never held an Australian visa. There is no material before the Tribunal to indicate that she has failed to comply with a visa to any other country. Clause 600.211(a) is satisfied and given a neutral evidential weight.
The Tribunal must also consider whether the primary 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 follows (cl 600.612):
·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 primary visa applicant and review applicant both specifically stated that the primary visa applicant would comply with the conditions of her visa. The review applicant also offered to provide a bond of up to $20,000, which, considered against his family’s salary, assets and expenses, is a substantial commitment indicating his belief that his sister will not breach her visa conditions. The review applicant and primary visa applicant also acknowledged that, if the primary visa applicant was to breach any visa conditions, it may affect the review applicant’s ability to sponsor family in the future.
The primary visa applicant is married to the secondary visa applicant and gave evidence that she shares her income and assets with him. The primary review applicant also submitted that the primary and secondary visa applicant’s financial circumstances should be considered together. The Tribunal accepts that each of the visa applicants is in a married relationship and their assets and income are jointly held. The couple own agricultural land, including a house, vehicles and farming equipment in Kaithal district of Haryana, India. Post-hearing submissions, which the Tribunal accepts, estimate the total value of the couple’s immovable assets at about A$500,000, movable assets at about A$41,000, and liquid funds at about A$28,000. The evidence of all applicants was that the couple are attached to their land and committed to the farm which grows rotational crops through the year. The review applicant explained that there are periods of around 3 weeks between crop rotations when the primary visa applicant would be willing and able to travel but would otherwise desire to and be needed to return to the farm to begin the next harvest. The Tribunal accepts that this evidence collectively constitutes a strong tie to the primary visa applicant’s home country and an incentive to return there.
The applicants explained that the primary visa applicant’s son has left home to study at university but remains very close to his mother. The evidence was that the couple’s son travels from his university to their home eery weekend. The Tribunal accepts the visa applicant’s evidence that she is close to her son and would not wish to stay away from him for substantial periods of time. The Tribunal considers this evidence weighs in favour of her complying with condition 8531.

The review applicant and primary visa applicant separately told the Tribunal that the latter would pay for her own travel costs and that the former will cover her living expenses while visiting Australia. Having reviewed the financial records for both parties before the Tribunal it is satisfied that both parties have sufficient funds for such an arrangement and the primary visa applicant will not need to work while she is here. The primary visa applicant has a lifelong career in agriculture in her home country which appears financially successful and rewarding to her. The Tribunal is satisfied that the primary visa applicant does not need to work while she is visiting family in Australia. Similarly, the primary visa applicant explained she had no interest or need to study or train while she was in Australia Tribunal accepts this testimony as credible and supported by the objective evidence and weighs it positively in respect of conditions 8101 and 8201.
The Tribunal has reviewed the relevant country information, which provides no clear basis for the primary visa applicant to apply for a visa while she is in Australia.[11] The combined evidence of all parties at the hearing alongside the documentary evidence about the visa applicants’ finances and assets indicates that she lives in a relatively comfortable and stable situation. The Tribunal considers the evidence weighs in favour of the primary visa applicant complying with condition 8503.
[11] DFAT Country Report – India (September 2023).
The Tribunal does not consider that there are any other relevant matters that weigh against the applicant being a genuine temporary entrant for the purposes of cl 600.211(c).
Having considered the evidence, the Tribunal is satisfied that the primary visa applicant 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 applications for Visitor (Class FA) visas for reconsideration, in accordance with an order that the visa applicants meet the following criteria for a Subclass 600 (Visitor) (Class FA) visa:
·cl 600.211 of Schedule 2 to the Regulations.
The Tribunal does not have jurisdiction in respect of the Secondary Visa Applicant’s application for review.
Date(s) of hearing: 28 July 2025
Representative for the Applicant: N/a