Mai (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Department of Home Affairs to refuse the applicant a Visitor (Class FA) visa, subclass 600 (Tourist stream). The applicant, a citizen of Vietnam, applied for the visa on 3 May 2023. The delegate refused the visa on 23 June 2023, finding that the applicant did not satisfy clause 600.215 of Schedule 2 to the Migration Regulations 1994 (Cth). The applicant sought review of this decision by the Tribunal.

The central legal issue before the Tribunal was whether the applicant satisfied clause 600.215 of Schedule 2 to the Regulations. This clause requires that exceptional circumstances exist for the grant of the visa if granting it would result in the applicant being authorised to stay in Australia for more than 12 consecutive months on certain types of visas, including visitor visas. The Tribunal considered the applicant's visa history, her current stay in Australia, and the circumstances relating to her children.

The Tribunal reasoned that while the applicant had a history of travel to Australia and had been in the country for approximately 19 months at the time of the decision, her situation involved exceptional circumstances. Specifically, the Tribunal noted that the applicant had significant carer responsibilities for her Australian citizen child, whose condition was considered a serious medical condition. The Tribunal found that refusing the visa would deprive the child of the care currently provided by the applicant, who does not work in Australia and has primary responsibility for assisting her child due to the child's father's work commitments. Consequently, the Tribunal was satisfied that exceptional circumstances, being out of the ordinary, were present.

Based on these findings, the Tribunal set aside the delegate's decision to refuse the visa. The Tribunal remitted the visa application back to the delegate for reconsideration, with a direction that the applicant satisfies clause 600.215 of Schedule 2 to the Migration Regulations 1994.