Wu (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 573, made by an applicant in Australia. The applicant's previous student visa had ceased, and they had not departed Australia. The applicant had subsequently held a series of temporary visas, including a Visitor visa (subclass 600), and had entered into an 18-month rental tenancy agreement. The primary dispute before the Tribunal was whether the applicant had established exceptional reasons for the grant of the subclass 573 visa, as required by regulation 573.227.

The legal issue before the Tribunal was to determine whether the applicant had satisfied the requirements of regulation 573.227, specifically whether they had established "exceptional reasons" for the grant of the subclass 573 visa, given that the application was made in Australia and the applicant was subject to Assessment Level 3. The applicant had claimed that a medical condition, sinusitis, prevented them from travelling and necessitated the onshore application for the student visa.

The Tribunal considered the applicant's submission that sinusitis and an inability to travel constituted exceptional reasons, supported by a medical certificate. However, the delegate had found that while the applicant was unable to fly, they should have applied for an appropriate visa under those circumstances. Applying departmental policy, the delegate determined that the applicant's circumstances did not meet the criteria for exceptional reasons, particularly as they had not been granted their previous Visitor visa while holding a student visa. The applicant's agent argued that the inability to depart due to illness was exceptional, and that it was inconsistent and unfair to require the applicant to demonstrate exceptional reasons when former student visa holders who obtained skilled graduate visas and then applied for another student visa onshore were not subject to the same requirement. The Tribunal ultimately found that the applicant did not satisfy clause 573.227 of Schedule 2 to the Regulations.

The Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.