1509861 (Migration)

The Administrative Appeals Tribunal considered an application for a Student (Temporary) (Class TU) Subclass 571 visa made by a citizen of China while they were in Australia. The applicant had arrived in Australia on a visitor (subclass 600) visa and subsequently applied for the student visa. The Tribunal's decision under review was the refusal to grant this visa.

The central legal issue before the Tribunal was whether the applicant satisfied clause 571.227 of the relevant regulations. This clause mandates that an applicant for a Subclass 571 visa, who applies in Australia and whose assessment level is other than level 1, must demonstrate exceptional reasons for the grant of the visa, particularly if they held certain specified visas at the time of application. In this instance, the applicant's assessment level was determined to be level 3, and they held a subclass 600 visa when they lodged their application in Australia.

The Tribunal reasoned that, given the applicant's circumstances, the requirement to establish exceptional reasons for the visa grant was triggered. Drawing on the principles from *Kim v MIAC* [2008] FMCA 1577, the Tribunal understood "exceptional reasons" to mean that positive justifications must be identified to warrant the visa's grant. The Tribunal found that while the applicant had enrolled in a secondary school in Australia and commenced studies, they had only attended for approximately one month before ceasing due to insufficient English language skills. Although the applicant subsequently attended an English language course and enrolled in another school, the Tribunal was not satisfied that these circumstances constituted exceptional reasons for granting the student visa. The Tribunal noted that the applicant had not sat the Senior High School Entrance Exam in China, which was a relevant consideration given the timing of their application.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) Subclass 571 visa, finding that the applicant had not met the requirements of clause 571.227. The Tribunal also noted that other subclasses within the Class TU visa class had similar requirements for applicants in Australia who did not hold a substantive visa at the time of application, and the applicant did not meet those requirements either.