1510460 (Migration)

[2015] AATA 3804

1510460 (Migration) [2015] AATA 3804 (3 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Elvis Marinaj
Ms Jessica Doriguzzi Bozzo

CASE NUMBER:  1510460

DIBP REFERENCE(S):  BCC2015/1731112

MEMBER:Antonio Dronjic

DATE OF ORAL DECISION:  3 December 2015 at 14.17

DATE OF WRITTEN STATEMENT:         3 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 03 December 2015 at 6:09pm

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 July 2015 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 June 2015 to undertake study in Australia. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575), or whether the applicant has the support of the relevant Minister (Subclass 576).

3. The delegate in this case refused to grant the visas on the basis that the primary visa applicant (the applicant) did not satisfy the requirements of cl.570.227 Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the primary applicant, who is citizen of Albania, applied for student visa in Australia being a holder of a subclass 600 (visitors’) visa. As the primary applicant is subject to assessment level 3 and considering the proposed course of study in Australia, the delegate found that the applicant needed to establish exceptional reasons for the visa grant but has failed to do so.

4. The applicants applied to the Tribunal on 3 August 2015 for review of the delegate’s decision and with enclosed a copy of the primary decision record.

5. On 11 November 2015 the Tribunal wrote to the review applicants advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 3 December 2015.

6. On 2 December 2015, the applicants’ representative provided legal submissions conceding that the primary applicant is the subject of assessment level 3 and arguing that the exceptional reasons for the grant of subclass 570 visa are:

   ·he has permanent residency in Italy;

   ·he spent 66% of his life in Italy; and

   ·he can obtain Italian passport at any time.

7. The applicants appeared before the Tribunal on 3 December 2015 via telephone conferencing to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages. The applicants were represented in relation to the review by their registered migration agent.

8. This is a summary of the primary applicant’s oral evidence:

9. He arrived in Australia on 3 August 2014 as a holder of a subclass 600 visa that was valid until 23 December 2014. His partner, Ms Bozzo was already in Australia as a holder of a working holiday visa and he came to visit her.

10. The departmental movement record indicated that the primary applicant was granted further subclass 600 visas on 9 October 2014 and 23 December 2014. The last visitor’s visa remained valid until 3 August 2015.

11. On 20 July 2015 he enrolled into English language course at Adelaide Institute of Business and Technology. His student visa application was refused by the Department on 29 July 2015 and soon after (beginning of August 2015) he cancelled the enrolment.

12. He stated that he is neither currently enrolled into any course of study nor he has an offer of enrolment.  

13. I explained to the primary applicant that one of the requirements for the visa grant that must be satisfied at the time of the Tribunal decision is contained in cl.570.232 and requires the applicant to be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course and of a type that was specified for Subclass 570 visas by the Minister in a legislative instrument. He stated that he was not aware of this requirement.

14. I noted that he is and has been represented by migration agent who should have informed him of this requirement. 

15. I noted that his representative provided submissions arguing the existence of the exceptional reasons for the grant of subclass 570. The stated reasons are that he has permanent residency in Italy, spent most of his life in Italy and can obtain Italian passport. I asked if there is any other exceptional reason for the grant of subclass 570 that he would like to advance. He stated that he feels Italian and that he applied for Italian passport two years ago. I noted that no evidence of application for Italian passport was provided to the Tribunal. I further noted that in her submissions, the representative stated that the applicant ‘can apply for Italian passport at any time’ which contradict his statement that he applied for Italian passport to years ago. He confirmed that he holds Albanian passport and citizenship.

16. I proceed to give the applicants oral decision affirming the primary decision on the basis that, at the time of my decision, the primary applicant is not enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application.

17. In addition, based on the evidence before me, I gave the applicants oral decision that I was not satisfied that the primary applicant established exceptional reasons for the grant of the visa. Accordingly, I found that the primary applicant does not meet cl.570.227.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue before the delegate was whether the applicant met the criterion in 570.227.

19. The 'exceptional reasons' for the grant of the visa applies where the visa application was made in Australia; the applicant is subject to assessment levels 2, 3, 4 or 5 at the time of application; the applicant was either the holder of a specified temporary visa; or if the applicant did not hold a substantive visa, immediately before ceasing to hold a substantive visa, the applicant held a specified visa. The term 'exceptional reasons' is not defined in the Act or Regulations. An applicant subject to cl.570.227 must establish that there are exceptional reasons for the grant of the visa.

20. When lodging the application to the Tribunal the applicants provided a copy of the delegate's decision record which indicates that at the time of the lodgement of the visa application, the primary applicant was the holder of a Subclass 600 (Visitor) visa, which is one of the specified visa classes listed in cl.570.227.

21. The applicant is a citizen of Albania and is subject to Assessment Level 3. The Tribunal finds, therefore, that the applicant must satisfy cl.570.227 of Schedule 2 to the Regulations.

22. I consider the reasons as argued by the applicants and their representative. I am not satisfied that having permanent residency in Italy where the primary applicant claims to have spent most of his life; together with his claim that he can obtain Italian passport, amounts to  exceptional reasons for the visa grant.

23. I am not satisfied on the evidence that there are exceptional reasons for the grant of the visa. Accordingly, I find that the primary applicant does not meet cl.570.227.

    No enrolment

24. The additional issue was raised with the applicants at the hearing. The primary applicant gave evidence that he cancelled his enrolment into English language course in early August 2015 and is currently not enrolled in, or is the subject of a current offer of enrolment in any course of study in Australia.

25. With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’, and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

26. There is no evidence before the Tribunal that the principal applicant is now enrolled in, or has a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

27. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

28. The Tribunal also affirms the decision not to grant the second named applicant a Class TU visa as there no evidence that she meets the secondary visa criteria to be a member of the family unit of a person who holds the relevant visa and there is no evidence that she meets the primary visa criteria in her own right.

29. For these reasons, the decision under review must be affirmed.

    DECISION

30. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Antonio Dronjic
    Member