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 had arrived in Australia on 20 February 2020 and had remained in the country since then, holding a subclass 601 visa and a bridging visa. The Tribunal was required to determine whether the grant of the subclass 600 visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months, and if so, whether exceptional circumstances existed to justify the grant of the visa.

The Tribunal first considered whether the applicant would be authorised to remain in Australia for more than 12 consecutive months. Department records confirmed the applicant's continuous presence in Australia since February 2020, and that both the subclass 601 visa and the bridging visa held were prescribed visas for the purposes of clause 600.215 of the Regulations. Consequently, the Tribunal found that granting the subclass 600 visa would indeed result in the applicant being authorised to stay in Australia for more than 12 consecutive months. The central legal issue then became whether "exceptional circumstances" existed for the grant of the visa.

In determining what constitutes "exceptional circumstances," the Tribunal noted that the legislation does not provide a definition. It referred to existing case law, including *An v Minister for Immigration and Citizenship* [2007] FCAFC 97, which described "exceptional" as meaning unusual or atypical. The Tribunal also drew upon comments from *Wang v Minister for Immigration and Multicultural and Indigenous Affairs* [2005] FMCA 918 and *Oreb v Wilcox* (2004) FCA 1520, which characterised "exceptional circumstances" as elastic instructions requiring something unusual or different to take a matter out of the ordinary, and that factors setting a person apart from others in a comparable situation may qualify. Despite considering the applicant's circumstances, individually and cumulatively, the Tribunal was not persuaded that exceptional circumstances existed for the grant of the visa.

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