Cleary (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream), by an 85-year-old national of the Republic of Ireland. The applicant had been in Australia lawfully for a period exceeding 12 consecutive months, having entered on 26 October 2018 and subsequently held a subclass 600 Visitor visa and a Bridging visa 010. The dispute before the Tribunal was whether exceptional circumstances existed for the grant of a further visa, as required by clause 600.215 of the relevant regulations.

The primary legal issue before the Tribunal was to determine if the applicant met the criteria under clause 600.215, which mandates the existence of exceptional circumstances for the grant of a visa when an applicant has been in Australia for more than 12 consecutive months on certain types of visas, including visitor visas. This clause requires the applicant to demonstrate that exceptional circumstances justify their continued stay in Australia.

The Tribunal found that exceptional circumstances did exist. It was explained that at the time of the initial application, the applicant's family was experiencing extenuating circumstances that prevented them from providing detailed evidence to satisfy the delegate of the exceptional circumstances. Furthermore, the applicant was unrepresented at that time. The Tribunal was persuaded by submissions that the advent of COVID-19 and subsequent travel restrictions led to a more flexible approach by the Department. Crucially, the applicant's age, coupled with medical evidence demonstrating vulnerability to COVID-19, the presence of a heart pacemaker, and signs of cognitive decline, constituted exceptional circumstances. Additionally, the applicant's daughter, who intended to accompany him to his home country to provide care, had her own personal circumstances preventing her from doing so, further contributing to the exceptional nature of the situation.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa for reconsideration, with a direction that the applicant met the criteria under clause 600.215 of Schedule 2 to the Regulations.