Chen (Migration)

The Administrative Appeals Tribunal considered whether to affirm a decision not to grant a Visitor (Class FA) visa, subclass 600, Tourist stream, to the applicant. The applicant sought to remain in Australia for more than 12 consecutive months, which triggered a specific criterion under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 600.215 of Schedule 2 to the Migration Regulations 1994. This clause mandates that exceptional circumstances must exist for the grant of a visa if it would result in the applicant being authorised to stay in Australia for a total period exceeding 12 consecutive months through one or more specified visas. The Tribunal also considered the applicant's previous visa applications for permanent residence, which raised a risk factor under Public Interest Criterion 4011.

The Tribunal reasoned that the applicant's history of numerous visits to Australia, including extended stays, indicated a pattern that would lead to a total consecutive stay exceeding 12 months if the current visa were granted. While acknowledging the applicant's desire to care for her granddaughter and her application for a Contributory Parent visa, the Tribunal found that these circumstances did not constitute "exceptional" in the ordinary English meaning of the word, which implies something unusual or extraordinary. The Tribunal relied on the ordinary meaning of "exceptional" and noted the lack of specific judicial authority on this precise clause, but drew analogy from the interpretation of "exceptional circumstances" in other visa contexts, such as in *An v Minister for Immigration and Citizenship* [2007] FCAFC 97.

The Tribunal affirmed the decision not to grant the Visitor (Class FA) visa.