1511560 (Migration)

This matter concerned an application for a Subclass 573 Higher Education Sector visa by a Namibian passport holder who was in Australia on a Subclass 600 Visitor visa. The applicant had initially applied for a Subclass 572 Vocational Training and Education Sector visa while in Australia, but subsequently enrolled in a Bachelor of Engineering degree, making Subclass 573 the relevant visa class at the time of the decision. The core dispute revolved around whether the applicant had established "exceptional reasons" for the grant of the visa while remaining in Australia, as required by Clause 573.227 of the Migration Regulations.

The Tribunal was required to determine the meaning and application of the "exceptional reasons" criterion under Clause 573.227. This involved considering whether the applicant's personal circumstances could constitute exceptional reasons, and how such reasons should be assessed by a decision-maker. The Tribunal noted that the criterion does not require the applicant to depart from the normal characteristics of those subject to the restriction, but rather to positively identify reasons that justify granting the visa. The Tribunal also had to consider the discretion afforded to the decision-maker in assessing these circumstances.

In its reasoning, the Tribunal referred to established case law, including *Kim v MIAC*, which clarified that "exceptional reasons" are not narrowly defined and can encompass personal circumstances. The Tribunal emphasised that the decision-maker has a broad discretion to consider whether an applicant should be an exception to a ban on granting a visa within Australia. The Tribunal concluded that the applicant had indeed established exceptional reasons for the grant of the visa, finding that the applicant met the requirements of Clause 573.227.

Consequently, the Tribunal remitted the application for a Student (Temporary) (Class TU) visa for reconsideration. The reconsideration was to proceed with the direction that the applicant had met the criteria under Clause 573.227 of Schedule 2 to the Regulations.