Burns (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, where the applicant sought to remain in Australia for a period exceeding 12 consecutive months. The applicant's stated reasons for the extended stay included obtaining a rescue dog and undertaking a road trip around Australia, while also noting family ties to the United States. The decision under review was made by the Tribunal, presided over by Member Nathan Goetz.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 600.215 of the Migration Regulations 1994. This clause mandates that if granting a visa would result in the holder remaining in Australia for more than 12 consecutive months under specific visa types, including visitor visas, there must be "exceptional circumstances" for the grant of the visa. The Tribunal was required to determine if the applicant's circumstances constituted such exceptionality.

In reaching its decision, the Tribunal considered the meaning of "exceptional circumstances," drawing on dictionary definitions and relevant case law. It noted that "exceptional" means unusual or extraordinary. The Tribunal referred to *An v Minister for Immigration and Citizenship* [2007] FCAFC 97, which held that "exceptional circumstances" are unusual or atypical, and to *Wang v Minister for Immigration and Multicultural and Indigenous Affairs* [2005] FMCA 918, which approved comments from *Hatcher v Cohn* [2004] FCA 1548 stating that exceptional circumstances are those that are unusual or out of the ordinary, and may include factors that set a person apart from others in a comparable situation. The Tribunal also considered departmental policy, which suggests exceptional circumstances might include serious illness or death of a close family member requiring the applicant's presence, or unforeseen changes in circumstances causing significant hardship to an Australian resident or citizen. Applying these principles, the Tribunal found that the applicant's desire to obtain a rescue dog and travel around Australia did not constitute circumstances that were atypical, out of the ordinary, or unusual. Consequently, the Tribunal was not satisfied that exceptional circumstances existed.

The Tribunal affirmed the decision not to grant the applicant a Visitor (Class FA) visa, subclass 600, as the requirements of clause 600.215 were not met.