1513935 (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600, before the Migration Review Tribunal. The applicant sought reconsideration of a decision regarding their eligibility for the visa.

The primary legal issue before the Tribunal was whether clause 600.215 of the Migration Regulations 1994 applied to the applicant's case. This clause requires exceptional circumstances for the grant of a visa if the applicant would be authorised to stay in Australia for more than 12 consecutive months as the holder of one or more Visitor visas, or specific working holiday visas. The Tribunal also considered whether clause 600.223(1) was met, which applies to applicants in Australia who held a substantive temporary visa at the time of application, provided it was not a subclass 426 or 403 visa.

The Tribunal reasoned that clause 600.215 did not apply because the applicant's presence in Australia for approximately 22 months, including periods on Visitor visas and Bridging visas, did not constitute more than 12 consecutive months as a holder of a Visitor visa. The Tribunal found that the period on a Bridging visa broke the continuity required by the clause. Consequently, the requirement to demonstrate exceptional circumstances was not triggered. However, the Tribunal found that clause 600.223(1) was satisfied, as the applicant was in Australia at the time of application and held a Subclass 600 Visitor visa, which was not one of the excluded visa subclasses.

The Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration by the Department, with the direction that the applicant met the criterion under clause 600.223(1).