Letter of Advice on Exceptional Circumstances in Australian Migration Law

This letter of advice explains the meaning of exceptional circumstances in Australian migration law and provides guidance on appealing for an extension of stay in Australia. It discusses the case of Yassa and the requirements for fulfilling exceptional circumstances. The policy, statutory interpretation, and extrinsic materials related to exceptional circumstances are also discussed. The letter concludes by addressing the unsuccessful outcome of the applicant's case and suggesting the possibility of applying for a medical visa.

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Australian Migration Law

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Table of Contents
Letter of Advice.........................................................................................................................3
Introduction............................................................................................................................3
Progression and analysis of your case....................................................................................3
Conclusion..............................................................................................................................5
Bibliography...............................................................................................................................7

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Letter of Advice
To
Name: Please Insert
Address: Please Insert
Date: Please Insert
Phrase-exceptional circumstances
This letter of advice is being addressed to you in terms of the explanation of the meaning of
exceptional circumstances with regard to migration law of Australia on the basis of your
issue. Such an aspect would be taken into consideration since your situation is related to the
case of Yassa as far as the facts and circumstances are concerned. As a result, the term
exceptional circumstances would be analysed with reference to your case as far as the
extension of your stay in Australia is concerned. It would result in a comprehensive solution
for you if you appeal provided that credible evidence is furnished by you within the maning
of exceptional circumstances. Similar to Yassa case, the application made by you for the
extension of your stay in Australia would be taken into consideration if the exceptional
circumstances are furnished and presented accordingly by you.
The concept of exceptional circumstances as per Schedule 2 of the Migration Regulations of
1994 implies the fulfilment of the requirements of Sub-clause 2 of Clause 600.215 of the
Migration Regulations of 1994 with regard to the extension of the visa for the immigrant
concerned as far as the aspect of Sub-clause 1 of Clause 600.215 of the Migration
Regulations of 1994 is concerned1. With regard to business visitor as per Subclass 600, the
definition of business visitor activity as per Regulation 1.03 of the Migration Regulations of
1994 is to be interpreted2. In the case of Yassa (Migration), the Administrative Appeals
Tribunal of Australia rejected the grant of extension of visa to the applicant since it found that
the conditions enshrined and envisaged under Clause 600.215 of the Migration Regulations
of 1994 were not complied with in the manner concerned taking into consideration the facts
and circumstances in a detailed manner3. The situation in your case is quite similar with
regard to your holding of tourist and bridging visas for the past two and a half years.
1 Migration Regulations (Cth) 1994 sch. 2
2 Migration Regulations (Cth) 1994 reg. 1.03
3 Yassa (Migration) [2019] AATA 1078

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Regulation 1503 of the Migration Regulations of 1994 implies that visa under Subclass 600
cannot be granted if the stay of an immigrant in Australia would be in excess of a year unless
there are exceptional circumstances as observed in the case by the Administrative Appeals
Tribunal of Australia. In your case, the official of the Department of Home Affairs was not
satisfied with the conditions of your extension with regard to the granting of the appropriate
visa along with the length of your stay.
There are various kinds of instances which can be categorized as exceptional circumstances.
The key thing in this aspect would be the factors beyond the control of the aggrieved party.
The Administrative Appeals Tribunal of Australia found in the Yassa case that the applicant
had intentions to stay in Australia permanently and was the holder of bridging visa which
implies temporary stay in Australia. As a result, it is imperative that the term “exceptional
circumstances has a very broad meaning.
Policy
The policy pertaining to Procedures Advice Manual issued by the Department of Immigration
implies that the phrase “exceptional circumstances” implies that the visa applicant can be
granted stay in Australia for a more than year to support a close member of a family on
grounds of death serious injury or illness. The policy also implies that the grounds of
exceptional circumstances are to be compassionate in nature. The detrimental effect in terms
of physical and mental health of the person also implies the aspect of exceptional
circumstances. It also implies the changes in the circumstances of the applicant. Such kinds
of changes are to taken place not only in the absence of any anticipation by you but they
should be beyond your control. Additionally, you also need to provide evidence that returning
to your home country would cause various kinds of issues and obstacles. Such a policy
simply sets out the direction to be issued with regard to “exceptional circumstances” and does
not provide any specific definition. As a result, the Tribunal referred to the case of Wang v
Minister of Immigration and Multicultural and Indigenous Affairs to come to a conclusion.
Statutory interpretation
The literal rule relating to statutory interpretation was used with regard to the interpretation of
the phrase “exceptional circumstances” taking into account of Section 137 L of the Migration
Act of 1958 of the Migration Act of 1958 in the case of Wang v Minister of Immigration and

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Multicultural and Indigenous Affairs 4. The Administrative Appeals Tribunal of Australia
also took into consideration Section 65 of the Migration Act of 1958 as far as the satisfaction
of the condition with regard to granting of the visa which includes the satisfaction of the
criteria pertaining to health. The discretion in this matter lies with the Minister5. It further
implies that as per the literal rule of statutory interpretation, the word is to be construed in
terms of what it means in general sense. In the case of Project Blue Sky v Australian
Broadcasting Authority, it was held by the High Court of Australia that words mean what
they speak about and vice-versa6. As a result, the Administrative Appeals Tribunal of
Australia applied the literal rule of statutory interpretation.
Extrinsic materials
The extrinsic material used by the Administrative Appeals Tribunal of Australia in order to
assist the Member of the Tribunal was the President’s Direction on Conducting Migration
and Refugee Reviews. The extrinsic materials used in the case by Administrative Appeals
Tribunal of Australia also include the cases of An v Minister for Immigration and
Citizenship, Hatcher v Cohn and Wang v Minister of Immigration and Multicultural and
Indigenous Affairs.
Applicant unsuccessful
It is imperative that the main reason of the failure of the applicant in his case was the non-
fulfilment of the requirements stipulated by Sub-clause 2 of Clause 600.215 of the Migration
Regulations of 1994 as far as the conclusive decision of the Administrative Appeals Tribunal
of Australia in Yassa’s case is concerned7. It is implied that in order to take into
consideration the expression of “exceptional circumstances”, the requirements of Sub-clause
2 of Clause 600.215 of the Migration Regulations of 1994 are to be met by you in order to be
successful in the filing of appeal as far as your case is concerned. With regard to the decision
made in your case, you have not been successful since the Administrative Appeals Tribunal
of Australia observed that the aspect of exceptional circumstances cannot be applied in your
case. Like the Yassa case, the medical conditions were not taken into consideration by the
Administrative Appeals Tribunal of Australia8. As a result, it can be concluded by stating
4 Migration Act 1958 (Cth) 1958 s. 137 L
5 Migration Act 1958 (Cth) 1958 s.65
6 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
7 Migration Regulations (Cth) 1994 cl. 600.215 (2)
8 Katherine A. Daniell and Adrian Kay (eds.), Multi-level governance: conceptual challenges and case studies
from Australia. (ANU Press, 2017)

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that the term “exceptional circumstances” would be applied in your case when the
requirements of the categories of visas under Sub-clause 2 of Clause 600.215 of the
Migration Regulations of 1994 are met. You have to prove that your situation is not ordinary
if you want to proceed further by filing an appeal to set aside the decision of the
Administrative Appeals Tribunal of Australia in your case. In this regard, securing a medical
visa may be viable for you as far as your grievous injuries are concerned9. Please feel free to
contact me if you want to file an appeal.
Kind Regards
XYZ
9 Migration Regulations (Cth) 1994 cl. 600.212 (6)

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Bibliography
Hatcher v Cohn [2004] FCA 1548
Katherine A. Daniell and Adrian Kay (eds.), Multi-level governance: conceptual challenges
and case studies from Australia. (ANU Press, 2017)
Migration Act 1958 (Cth) 1958 s. 137 K
Migration Act 1958 (Cth) 1958 s. 137 L
Migration Act 1958 (Cth) 1958 s.65
Migration Regulations (Cth) 1994 reg. 1.03
Migration Regulations (Cth) 1994 sch. 2
Migration Regulations (Cth) 1994 cl. 600.212 (6)
Migration Regulations (Cth) 1994 cl. 600.215 (2)
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
Wang v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FMCA 918
Yassa (Migration) [2019] AATA 1078