Cristobal (Migration)

The Administrative Appeals Tribunal considered the case of a visa applicant seeking a Visitor (Class FA) visa, subclass 600 (Visitor) in the Tourist stream. The applicant had arrived in Australia on 12 October 2016 and had remained in the country beyond the validity of her initial visa. She applied for a further stay, which, if granted, would result in her remaining in Australia for more than 12 consecutive months. The central dispute concerned whether exceptional circumstances existed to justify granting the visa under clause 600.215 of the Regulations.

The Tribunal was required to determine if the applicant's circumstances met the threshold of "exceptional circumstances" as contemplated by clause 600.215. This clause mandates that exceptional circumstances must be present if granting a Visitor visa, or certain other visas, would permit the applicant to remain in Australia for a total period exceeding 12 consecutive months. The applicant's stated reasons for the extended stay were her intention to marry an Australian citizen and to remain in Australia for Christmas.

In its reasoning, the Tribunal referred to policy guidelines, as the Act does not define "exceptional circumstances." These guidelines suggest that exceptional circumstances may include significant family illness or death requiring the applicant's presence, or unforeseen changes in circumstances beyond the applicant's control that would cause significant hardship to an Australian resident or citizen if a visa were not granted. The applicant explained that her planned marriage date of 12 October 2017 had to be postponed because her divorce proceedings in Australia were not finalised in time due to difficulties serving her husband, who resides in the Philippines. She further testified that she could not obtain a divorce in the Philippines and would need an annulment to remarry there, even after an Australian divorce. Her marriage to her Australian fiancé was rescheduled for 15 June 2018. The Tribunal found that these circumstances constituted exceptional circumstances, satisfying the requirements of clause 600.215.

Consequently, the Tribunal remitted the application for a Visitor (Class FA) visa, subclass 600 (Visitor) (Tourist stream), for reconsideration. The Tribunal directed that the visa applicant met the criteria under clause 600.215 of Schedule 2 to the Regulations.