Nguyen (Migration)

This matter concerned an application for review of a decision to refuse a Visitor (Class FA) visa, subclass 600 (tourist stream), made by Ms Nguyen. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria under cl.600.215 of the Migration Regulations 1994, which mandates exceptional circumstances for the grant of a visa if it would result in the applicant being authorised to remain in Australia for more than 12 consecutive months.

The central legal issue before the Tribunal was the interpretation and application of the term "exceptional circumstances" within the context of cl.600.215. The Tribunal considered the ordinary English meaning of "exceptional" as unusual or extraordinary, and drew upon existing case law, such as *An v Minister for Immigration and Citizenship* [2007] FCAFC 97, which held that "exceptional circumstances" are unusual or atypical. The Tribunal also noted the comments in *Wang v Minister for Immigration and Multicultural and Indigenous Affairs* [2005] FMCA 918, which approved of Kiefel J's statement in *Hatcher v Cohn* [2004] FCA 1548 that exceptional circumstances are those that set a person apart from others in a comparable situation.

The Tribunal found that the applicant, a citizen of Vietnam, had entered Australia on 2 August 2018 and had remained onshore continuously for approximately three and a half years, having been granted two subsequent Visitor visas. The applicant's stated reasons for seeking further stay included providing care for her daughter and grandchild, concerns about COVID-19 in Vietnam, and eligibility for a booster shot. However, the Tribunal noted that no evidence was provided to support the claim of exceptional circumstances, despite a request from the Tribunal. The Tribunal concluded that the applicant's circumstances, including the need for childcare and the desire to remain in Australia for an extended period, did not constitute "exceptional circumstances" as required by the regulation.

Consequently, the Tribunal affirmed the decision under review, finding that the applicant had not satisfied the criteria for the grant of the visa under cl.600.215.