James (Migration)

This matter concerned a review of a decision to refuse a Visitor (Class FA) visa, Subclass 600, for an applicant who had been in Australia for over 12 consecutive months. The applicant sought to remain in Australia for a further period, citing the impact of the COVID-19 pandemic and the impending birth of another child. The review was conducted by a Tribunal member, Peter Papadopoulos.

The primary legal issues before the Tribunal were whether the applicant would be authorised to stay in Australia for more than 12 consecutive months if the visa were granted, and if so, whether exceptional circumstances existed to justify the grant of the visa. Departmental records indicated the applicant had been in Australia since January 2020, holding a subclass 601 visa and a bridging visa, both of which were prescribed visas for the purpose of the 12-month calculation.

The Tribunal reasoned that the applicant would indeed be authorised to remain in Australia for more than 12 consecutive months. In considering whether "exceptional circumstances" existed, the Tribunal noted the absence of a statutory definition and referred to judicial interpretations from other contexts. These interpretations generally understood "exceptional circumstances" to mean unusual or atypical situations that distinguish an individual from others in a comparable position. While acknowledging the applicant's circumstances, including the pandemic's impact and the family situation, the Tribunal was ultimately not persuaded that these constituted exceptional circumstances warranting the grant of the visa.

Consequently, the Tribunal affirmed the original decision not to grant the applicant a Visitor (Class FA) visa.