Ho (Migration)

The Administrative Appeals Tribunal considered an application for a Visitor (Class FA) visa, Subclass 600, made by an elderly applicant who had been in Australia since October 2019. The applicant sought to remain in Australia for a period exceeding 12 consecutive months, which engaged a specific provision requiring the Tribunal to be satisfied that exceptional circumstances existed for the grant of the visa. The applicant's circumstances included being recently widowed, having multiple chronic and deteriorating medical conditions, and being vulnerable to COVID-19 with no family support in her home country. She relied on the financial and emotional support of her son and his wife, who were Australian citizens.

The primary 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 a visa grant would result in the applicant holding certain visas for more than 12 consecutive months, then exceptional circumstances must exist for the visa to be granted. The Tribunal was required to interpret the meaning of "exceptional circumstances" in this context, noting that it is not a defined term and should be given its ordinary English meaning of "unusual" or "extraordinary." The Tribunal also referred to previous judicial interpretations of "exceptional circumstances" in other visa contexts, which indicated that such circumstances are those that are unusual or out of the ordinary, and can include factors that set a person apart from others in a comparable situation.

The Tribunal reasoned that the applicant's situation presented a confluence of factors that qualified as exceptional. These included her advanced age, recent widowhood, significant and worsening health issues, vulnerability to a global pandemic, and lack of support network in her home country, contrasted with the strong familial support available in Australia. The Tribunal considered these factors in light of the Department's Procedures Advice Manual, which provides examples of exceptional circumstances, such as serious illness of a family member in Australia requiring the applicant's presence, or unforeseen changes in circumstances causing significant hardship. The Tribunal concluded that the applicant's circumstances were unusual and out of the ordinary, and therefore met the criteria under clause 600.215.

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