1500812 (Migration)

[2015] AATA 3024

1500812 (Migration) [2015] AATA 3024 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs MARSELA GAVOCI
Mr ILIR GAVOCI
Mr ILGMAR GAVOCI

CASE NUMBER:  1500812

DIBP REFERENCE(S):  BCC2014/3128774

MEMBER:Tim Connellan

DATE:2 July 2015

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 02 July 2015 at 12:32pm

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 13 January 2015 to refuse to grant the visa applicants Mrs Marsela Gavoci as primary applicant and her husband Mr Ilir Gavoci and their son Mr Ilgmar Gavoci as secondary applicants, Student (Temporary) (Class TU) Subclass 572 visas under s.65 of the Migration Act 1958 (the Act).

2. Mrs Gavoci applied for the visa on 20 November 2014 nominating her intended studies as a Certificate III and a Certificate IV in Dental Assisting.

3. The delegate refused the application on the basis that Mrs Gavoci did not satisfy cl.572.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because her reasons for the grant of a visa were not exceptional.

4. The applicant applied to the Tribunal on 20 January 2015 for review of the delegate’s decision.

5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act. The Tribunal finds that the applicants have made a valid application for review under s.347 of the Act.

   RELEVANT LAW

6. To be eligible for the grant of a subclass 572 Vocational Education and Training 3 Higher Education Sector visa an applicant must satisfy clause 572.227 which relevantly states:

   If:        the application was made ; and

   (a)subject to clause 572.227A, the applicant is subject to the highest assessment level for the relevant course of study; and

   (b)at the time of application, the applicant met the requirements of clause 572.211:

   (i)      as the holder of a visa of one of the following classes:

   (A)      Border (Temporary) (Class TA);

   (B)      ;

   (C)      Cultural/Social (Temporary) (Class TE);

   (D)      Educational (Temporary) (Class TH);

   (E)      Electronic Travel Authority (Class UD);

   (F)      ;

   (G)      ;

   (H)      ;

   (I)      ;

   (IA)      Maritime Crew (Temporary) (Class ZM);

   (J)      Medical Practitioner (Temporary) (Class UE);

   (K)      Retirement (Temporary) (Class TQ);

   (L)      ;

   (LA)      Superyacht Crew (Temporary) (Class UW);

   (M)      ;

   (N)      Temporary Business Entry (Class UC);

   (NA)      Tourist (Class TR);

   (NB)      Visitor (Class TV);

   (O)      Working Holiday (Temporary) (Class TZ); or

   (ii)      as the holder of a special purpose visa; or

   (iii)      as the holder of a visa of one of the following subclasses:

   (A)      Subclass 303 (Emergency (Temporary Visa Applicant));

   (B)      Subclass 427 (Domestic Worker (Temporary) — Executive); or

   (iv)      as a person:

   (A)      who was not the holder of a substantive visa; and

   (B)      who, immediately before ceasing to hold a substantive visa, was the holder of a visa mentioned in subparagraph (i), (ii) or (iii);

   the applicant establishes exceptional reasons for the grant of a Subclass 572 visa.

   Background

7. According to movement records the primary applicant Mrs Gavoci first arrived in Australia on 15 October 2014 as the holder of a subclass 600 (Visitor) visa current until 26 November 2014.

8. On 20 November 2014, she applied for a subclass 572 visa, the subject of this review.

9. On 21 November 2014 an email was sent to Mrs Gavoci explaining that to be eligible for the grant of a first student visa applied for onshore, it was necessary to demonstrate exceptional reasons. She was invited to submit evidence in support of her application regarding her circumstances.

10. She responded stating that new techniques and methods are constantly changing in medicine and dentistry and she was keen to study to gain new skills.

11. On 13 January 2015 a delegate of the Minister made the decision to refuse the visa application on the basis that the reasons provided were not exceptional.

12. On 20 January 2015 the applicant applied to the Tribunal for review of that decision.

13. On 11 February 2015 the Tribunal wrote to Mrs Gavoci and invited her to a hearing scheduled for 26 March 2015 to give evidence and present arguments relating to the issues arising in her case.

    The Hearing

14. The hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

15. The Tribunal explained by reference to the primary decision, a copy of which she had provided with her review application, that to be eligible for the grant of a first student visa having applied onshore, she needed to satisfy clause 572.227 which required her to establish exceptional reasons as defined, which created a high threshold for grant of a visa.

16. The Tribunal discussed Mrs Gavoci’s history and background.

17. In Albania, she had completed a five-year Bachelor of Dentistry degree and a two-year Master of Dentistry and had spent the last 7 years working as a dentist in Albania. Her husband was a builder and they were financially comfortable.

18. She came to Australia to visit relatives and became aware of training courses in Dental Assisting in Australia that were not available in Albania.

19. She said she was keen to study these courses not so much for personal development but with a view to taking them back to provide training in Albania.

20. The Tribunal took oral evidence from Mr Bill Gani, the president of the Albanian community in Dandenong.

21. He told the Tribunal he had discussions with Mr Edmond Panaariti, the Albanian Trade Minister who had recently visited Australia looking at bilateral trade opportunities between Australia and Albania.

22. One of the areas of interest was in education. And while Australia was not currently well recognised in Albania as a study option destination, he believed significant opportunities existed for growth in this area.

23. Increased Albanian migration over recent generations had resulted in a community of approximately 15,000 in the greater Melbourne area. This community was well organised and keen to support any international students who chose to come and study in Australia.

24. He believed that Mrs Gavoci’s experience could be used as a forerunner and an example promoted in Albania as how tertiary studies can successfully be undertaken in Australia.

25. Mr Gani said he was returning to Albania in August 2015 and had a meeting organised with Minister Panariti at which he intended revisiting the benefits of bilateral tertiary student exchange between Australia and Albania.

    Findings and reasons

26. To be eligible for the grant of a subclass 572 student visa, an applicant must satisfy cl.572.227 which requires an applicant applying in Australia while holding a subclass 600 visa to provide exceptional reasons for the grant of a student visa.

27. The Tribunal was impressed by the openness and honesty of Mrs Gavoci and the testimony of Mr Gani suggesting that Mrs Gavoci’s studies in Australia could be used as an example of successful tertiary studies in Australia and in discussions with an Albanian government Minister about the benefits of bilateral tertiary student exchange.

28. The Tribunal finds that the evidence presented represents exceptional reasons for the grant of a subclass 572 visa and therefore finds that the applicant satisfies the requirements of cl.572.227. Having found she satisfies cl.572.227 the Tribunal will remit the matter to the Department for further consideration. .

    Decision

29. 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:

    ·cls.572.227 of Schedule 2 to the Regulations.

    Tim Connellan
    Member