Lemaistre Brentot (Migration)

This matter concerned an application for a Visitor (Class FA) visa, Subclass 600 (Tourist stream), made by the applicant. The core dispute revolved around whether the applicant satisfied clause 600.215 of Schedule 2 of the Migration Regulations 1994, which requires exceptional circumstances for a grant of the visa if the applicant seeks to remain in Australia for more than 12 consecutive months. The decision was made by the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the applicant had demonstrated exceptional circumstances justifying a stay in Australia exceeding 12 consecutive months, and whether the applicant's medical condition, the COVID-19 pandemic, and the parties' desire to remain in Australia with their son constituted such exceptional circumstances. The Tribunal was required to consider the applicant's stated reasons for travel, her subsequent applications for further visas, and the evidence presented regarding her health and family ties.

The Tribunal considered the applicant's history of travel to and from Australia, noting that she and her husband had travelled annually or more frequently from France to Australia since 2017. It found that they were aware of the distance involved and had not been assured of extended stays. The Tribunal also noted that the parties had ample time to depart Australia before travel restrictions were imposed and that the applicant's surgery had occurred after the need for her to depart had arisen. While acknowledging the applicant's desire to spend time with her son and his partner in Australia, and her retirement, the Tribunal found that the applicant's medical condition had resolved and that relatives remained in France. The Tribunal concluded that the parties appeared to have planned for some years to emigrate to Australia, and that their current wish to live permanently in Australia, due to no longer having reasons to live in France, was submitted as an exceptional circumstance.

The Tribunal concluded that the matter should be remitted for reconsideration.