Nguyen (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600 (Tourist stream). The applicant sought to remain in Australia for more than 12 consecutive months, which required the existence of exceptional circumstances for the grant of the visa under clause 600.215 of the Migration Regulations. The Tribunal, presided over by Angela Cranston, considered whether the applicant's medical conditions of grandchildren constituted such exceptional circumstances, particularly in light of the global COVID-19 pandemic.

The primary legal issue before the Tribunal was to determine whether exceptional circumstances existed to justify granting the visa, given that the applicant's stay would exceed 12 consecutive months. The Tribunal also considered the procedural fairness of conducting the hearing by telephone, as permitted by the COVID-19 Practice Direction for Migration and Refugee Division, to ensure the review process was fair, just, economical, and quick.

The Tribunal reasoned that the term "exceptional" is not defined in the Migration Act or Regulations but, drawing on dictionary definitions and judicial pronouncements, understood it to mean "unusual" or "out of the ordinary." The Tribunal referred to the Full Federal Court's decision in *An v Minister for Immigration and Citizenship* [2007] FCAFC 97, which held that "exceptional" is a simple, non-technical word meaning "unusual" or "atypical." The Tribunal also noted the comments in *Wang v Minister for Immigration and Multicultural and Indigenous Affairs* [2005] FMCA 918, which cited Kiefel J in *Hatcher v Cohn* [2004] FCA 1548, stating that exceptional circumstances are those that are unusual or out of the ordinary, and can include factors that set a person apart from others in a comparable situation. The Tribunal found that the applicant was afforded a fair opportunity to present all desired evidence and arguments.

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