Ma (Migration)

[2017] AATA 1928

Ma (Migration) [2017] AATA 1928 (12 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duolong Ma

CASE NUMBER:  1707872

DIBP REFERENCE(S):  BCC2016/1998174

MEMBER:Tim Connellan

DATE:12 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration with the direction that the applicant meets the following criteria for a subclass 572 Vocational Education and Training Sector visa.

· cl.572.227 of Schedule 2 to the Regulations.

Statement made on 12 October 2017 at 3:27pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Exceptional reasons – Change of Visa

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 572.227

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 March 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 June 2016. The delegate refused to grant the visa on the basis that the applicant had failed to establish exceptional reasons for the grant of a visa and therefore did not satisfy clause 572.227.

3. The applicant appeared before the Tribunal on 5 October 2017 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether exceptional circumstances exist for the grant of a student visa.

5. The applicant lodged a student visa application onshore on 8 June 2016 while holding a temporary graduate subclass 485 visa.

6. In prehearing submission the applicant’s agent referred to PAM 3 specifically where it states:

   If the applicant holds a “temporary residence” visa, under policy, exceptional reasons exist if they:

   ·have previously held a student visa, and

   ·while still in Australia as the holder of the student visa, were granted a class of temporary residents visa listed in clause 57X.211 (two) and,

   · now wish to change back from temporary residence status to a student visa to undertake further study

7. Given the circumstances of the current case reflect the situation referred to in PAM3 above, the Tribunal finds that exceptional reasons exist and the applicant therefore satisfies clause 572.227.

8. In the circumstances the Tribunal will remit the matter to the Department for reconsideration

   DECISION

   The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration with the direction that the applicant meets the following criteria for a subclass 572 Vocational Education and Training Sector visa.

   ·cl.572.227 of Schedule 2 to the Regulations.

   Tim Connellan

   Member