Devi (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream), made by the applicant who had been onshore in Australia since 28 July 2017. The applicant had been granted four consecutive Visitor visas during this period and sought a further visa that would extend her stay beyond 12 consecutive months. The delegate had refused the visa, and the applicant sought review of that decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 600.215 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if there were "exceptional circumstances" for the grant of the visa, as required by subclause 600.215(1) when subclause 600.215(2) applied, which it did in this case due to the applicant's intention to remain in Australia for more than 12 consecutive months. The applicant did not dispute that the grant of the visa would result in her being authorised to stay in Australia for more than 12 consecutive months.

The Tribunal reasoned that the term "exceptional circumstances" should be interpreted according to its ordinary English meaning, signifying something unusual or extraordinary. While not previously considered in the context of clause 600.215, the Tribunal referred to judicial interpretations of "exceptional circumstances" in other visa contexts, which generally understood the term to mean unusual or atypical circumstances that set a person apart from others in a comparable situation. After considering the applicant's claims individually and cumulatively, the Tribunal was not satisfied that exceptional circumstances existed. Consequently, the applicant failed to meet the requirements of clause 600.215.

The Tribunal affirmed the delegate's decision not to grant the Visitor (Class FA) visa to the applicant.