Xia (Migration)

This matter concerned an application for a Visitor (Class FA) visa, subclass 600, by an applicant from China. The applicant sought to enter Australia for orthopaedic surgery and to attend to her son's medical condition. The decision under review was made by the Administrative Appeals Tribunal (AAT).

The primary legal issues before the AAT were whether the grant of the 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 for the grant of the visa. The applicant applied under the Tourist stream of the Subclass 600 visa, with the relevant criteria set out in clause 600.215 of Schedule 2 to the Migration Regulations 1994.

The AAT found that granting the visa would indeed result in the applicant being authorised to stay in Australia for more than 12 consecutive months. In considering whether exceptional circumstances existed, the Tribunal referred to dictionary definitions of "exceptional" and guidance from the Department's Procedures Advice Manual, which provided examples such as the serious illness of a close family member in Australia requiring the applicant's support. The Tribunal concluded that the applicant had met the requirements of clause 600.215.

Consequently, the AAT remitted the application for reconsideration by the Minister, with the direction that the applicant had met the criterion specified in clause 600.215.