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Unfair Coincidental Circumstances

The Applicant and dependent travelled to Australia on an Electronic Travel Authority (Class UD) visa with the intention of pursuing further studies. Shortly after, the Applicant applied to undertake a business course at TAFE NSW, and intended to rely upon this to make an application for a temporary student visa. The Applicant had already paid her complete fees for the first part of the course when her Electronic Travel Authority visa ceased. The Applicant subsequently applied for a Vocational Education and Training (subclass 572) visa but this was refused. The Applicant lodged an application for review of the Department’s decision to the MRT, however the MRT affirmed the primary decision as the legislation did not grant the Tribunal the power to consider the circumstances of why the applicant did not satisfy the specific criteria of cl.572.211 which states that the applicant has to be a holder of a substantive visa when applying for this visa’ or the last substantive visa held by the applicant is a specified visa class which is prescribed in the visa clause.

It was due to unfair coincidental circumstances and lack of cooperation by TAFE that the Applicant was unable to finalize her enrolment and receive the CoE until shortly after her substantive visa had expired. The Applicant’s situation was further aggravated by what she claimed to be inconsistent information given to her by the customer service officers at the Department of Immigration and Border Protection, who advised the Applicant that she could apply for a student visa 28 days after the cessation of her last substantive visa. Accordingly, the Applicant lodged an application for a student visa after this period, relying on the advice she received earlier in the week.

The basis of the refusal was that the Applicant was not a holder of a substantive visa and her last substantive visa was not one which was prescribed under 572.211(3) (b) therefore she was not afforded a 28 day post-cessation period to make a valid application for this class of visa. The Applicant had completely relied upon the information given to her by the Department and had trusted them completely to steer her in the right direction. The Applicant lodged an application for review of the decision to the MRT. The MRT affirmed the DIBP decision to refuse the Applicant’s visa and noted that it was the Minister, not the Tribunal that the applicants had to persuade due to the legislation failing to grant the Tribunal a power to consider these circumstances.

Immigration Solutions Lawyers (ISL’) accepted the tribunal’s contentions and the MRT decision and assisted the Applicant in acting in accordance with the Tribunal member’s wishes by raising her matter directly with the Department and Minister. ISL submitted that the Applicant’s predicament was the result of unfair occurrences which were beyond her control. The Applicant requested that the Minister consider her circumstances under compassionate and humanitarian grounds. The Applicant was given the wrong information and after that was subjected to unfair and unjust circumstances as a consequence of her reliance. In addition to this, the Applicant had already adjusted well to the Australian way of life and had already formed a life here. She had established relationships, connections with potential employers as well as connections to the country.

The Assistant Minister decided to exercise her public interest power and substitute the decision of the MRT with a more favourable decision by granting the Applicant a Visitor (Tourist) visa so that the applicant may apply for a student visa and continue her studies in Australia.

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