Klinavicius (Migration)

[2019] AATA 1940

Klinavicius (Migration) [2019] AATA 1940 (7 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Martynas Klinavicius

CASE NUMBER:  1718499

HOME AFFAIRS REFERENCE(S):           BCC2017/2146451

MEMBER:Damian Creedon

DATE OF ORAL DECISION:  7 June 2019

DATE OF WRITTEN STATEMENT:         9 June 2019

PLACE OF DECISION:  Perth

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 500 (Student) visa:

·cl.500.212(a) of Schedule 2 to the Regulations.

Statement made on 09 June 2019 at 3:30pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine temporary entrant – evidence persuasive – credible and truthful witness – significant ties to Lithuania – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.211-500.218

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 and Border Protection on 14 August 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 June 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant was assisted in relation to the review by their registered migration agent.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant satisfies cl.500.212(a).

2. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)the applicant’s circumstances; and

   (ii)the applicant’s immigration history; and

   (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)any other relevant matter; and

   (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

Does the applicant intend genuinely to stay in Australia temporarily?

1. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction, which is attached to this decision, requires the Tribunal to have regard to a number of specified factors in relation to:

   ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

   ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

   ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

   ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

2. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

Overview of evidence

1. The applicant is a 40-year-old Lithuanian national who first arrived in Australia on 26 March 2013 as the holder of a Student (subclass 572) visa.

2. The Tribunal had before it a copy of both the delegate’s decision, which the applicant provided to the Tribunal, and the Department’s file in relation to the application.

3. The Tribunal also had before it a number of documents provided by the applicant.  Save as required for the purposes of this decision it is unnecessary to list these documents in detail.  Relevant documents will be referred to as required.

4. The applicant’s Provider Registration and International Student Management System (PRISMS) record (as clarified with the applicant) shows that he has successfully completed the following courses since arriving onshore:

Course Name	Date Commenced	Date Completed
General English (Beginner to Advanced)	01/04/2013	21/04/2013
General English (Beginner to Advanced)	27/05/2013	14/06/2013
Certificate IV in Marketing	29/07/2013	26/01/2014
Diploma of Marketing	10/02/2014	13/07/2014
Certificate III in Fitness	03/10/2014	16/04/2015
Certificate IV in Fitness	02/10/2015	29/09/2016
Diploma of Remedial Massage	06/10/2017	17/04/2019

1. PRISMS also records that the applicant is presently enrolled in a Diploma of Sport and Recreation Management which he is due to commence on 12 July 2019 and complete on 9 July 2020.

2. The applicant appeared before the Tribunal on 7 June 2019 to give evidence and present arguments.  Where relevant, the applicant’s evidence to the Tribunal is referred to in its analysis below.

3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Analysis and findings

1. The Tribunal found the applicant to be a credible and truthful witness who, where possible, supported his oral statements with documentary evidence.  The Tribunal found the applicant’s oral evidence to be consistent throughout and in giving his evidence he did not convey an impression of concoction or recent invention.

2. At the hearing, the Tribunal discussed with the applicant his written submissions in support of his application.  In summary the applicant provided the following information, as clarified at the hearing:

   1. He states that in 2012 he was living and working in Vilnius, Lithuania for a company called Premmier Group as “a top level manager”; the company was in a growing phase and started to export to other European countries.  Although he holds a Bachelor’s degree in Management and Business Administration, by itself this was “insufficient” to assist growing the business in foreign markets where English language skills were paramount.  He states that his manager at Premmier Group recommended that he undertake further studies “which would be provided in English” both to expand his professional skill set and improve his English language skills.
   2. He states that marketing was the “most interesting field” for his future studies, and the area of knowledge where he had the “biggest gaps”.  He states that his goals in undertaking study at this time were “to get valuable [i.e. useful] knowledge [for the business] and learn proper English”.
   3. He considered colleges in the UK, USA and Australia and claimed that “after September 11” he did not want to study in the USA and the UK is “just too cold”.  He states that his education agent recommended marketing studies at a registered course provider in Perth, Western Australia. 
   4. He states that after researching Australia, Perth and the course provider he determined that the feedback was good and he decided to apply.  He claims that among the deciding factors for him were “English as a native language”, a high quality of studies and affordable tuition fees with a pleasant climate as “an additional benefit”.
   5. He states that the “management style” and IT technologies used by Premmier Group enabled him to continue working remotely as he studied and his manager agreed to cover his study fees in marketing.  
   6. He states that his “expectations were fulfilled” in that he achieved a Certificate IV and Diploma in Marketing from his course provider and he improved his English.
   7. However, he claims that his time studying “far from home, family, workplace and friends” reminded him of his “love [of]sports and physical activities overall”.  He felt he was not gaining personal fulfilment from his work as a manager and “decided to make a big and drastic change” and to gain qualifications as a Personal Fitness Trainer and Massage Therapist.  
   8. He states that “there are plenty of Personal Fitness Trainers and Massage Therapists in Lithuania and Europe but in my life I have never met [a] person [in Lithuania] combining both”.
   9. He states:

   There are a number other of reasons why I chose to study fitness and massage in Australia. Firstly I became familiar to the country, culture and people. My level of English during Marketing studies increased very much and I wanted continue. I am fluent in Russian (I am Lithuanian) and one of my goals became to reach the same level in English. I also think for a fitness and massage student, Australia is a perfect place to study considering access to gyms, healthy foods, enough time to train and improve skills, as well as enough holidays in between studies to remain be not too stressed.

   My plan after finishing fitness studies is to come back to Lithuania and open my own business positioning myself as Personal Trainer and Massage Therapist at the same time. I have done my research, spoke [sic] to potential clients, professionals from Fitness and Massage industries and found there is perfect niche for me in Lithuania. It would save a lot of time, effort and money to my clients if they choose me - I would be the same person who would train them and later treat them. Big part of miscommunication which happens between specialists would be excluded as well.

3. At the hearing the Tribunal raised with the applicant its concern, shared by the delegate, that the applicant appears to be studying in a field unrelated to their previous studies or employment.  The applicant stated, in effect, that his time studying in Australia had led him to reconsider this career trajectory and that he had seen an opportunity to combine his “passion” for sport and fitness into a business model in his home country.  When pressed by the Tribunal he claimed to the effect that the fitness industry as it is understood in Australia is virtually non-existent in Lithuania; he stated that he saw an opportunity to combine his qualifications as a personal trainer with those he has obtained in remedial massage and to establish a “one-stop shop”.  When further pressed as to the details of his proposed business, the applicant stated to the effect that he had inherited land in Lithuania from his grandfather and that his plans are to build a combined house and gym/clinic on the land.  His evidence to the Tribunal is that he presently has planning applications before the relevant authorities in Lithuania for the structures and has applied for finance.  Overall, the Tribunal found this evidence persuasive.

4. The Tribunal raised a further concern with the applicant in that it was unclear why, with his extensive qualifications and experience as a business manager, he required to complete a Diploma of Sport and Recreation Management in Australia.  The applicant’s evidence was that his existing qualifications are in connection with operating within large organisations and that, in his part-time work as a massage therapist in Australia, he came to realise that he did not have the necessary skills to start and run his own small business in the fitness sector.  He states that there are no equivalent courses in Lithuania and that he believed that obtaining these skills was necessary for this future business endeavours.  In all of the circumstances the Tribunal considers the applicant’s evidence in respect his motives for undertaking the Diploma to be reasonable and persuasive.

5. As to the applicant’s present circumstances in Australia, the applicant’s evidence is that he works remotely for Premmier Group and his salary covers his tuition fees and living expenses.  He stated that he works casually in accordance with his visa conditions in order to gain practical experience for establishing his business in his home country.   This did not raise any concerns in Tribunal's mind that the applicant is using his temporary visa status to build a career in Australia. 

6. The Tribunal also found the applicant’s evidence as to his ties to his home country persuasive.  His evidence is that he has significant ties to Lithuania, beyond those already stated, in the form of his two teenage children.  He states that he was married to, but is now divorced from, his children’s mother and that they have worked out an agreement for custody of the children which allows the applicant to return to spend the Lithuanian summer holidays with them each year.  He states that he has deferred his studies from time-to-time to allow for the maximum time possible with his children.

7. There is no evidence that the applicant has entered into any relationship of concern or that they have significant ties to Australia other than his commitment to his studies.  In contrast, the applicant has strong family and economic ties to his home country providing him with a significant incentive to return there.

8. There is no evidence before the Tribunal of any military service or civil or political incidents that would act as a clear incentive for the applicant to remain in Australia. There is also no evidence that the applicant, or a relative of the applicant, has not complied with previous visas or previously held visas that were refused, cancelled or considered for cancellation.  The applicant’s immigration history does not raise concerns for the Tribunal. 

9. The Tribunal has had the benefit of speaking to the applicant which has enabled it to obtain more information regarding their circumstances and genuineness in the presentation of their evidence.  The Tribunal has assessed all of the evidence before it, including that the applicant is currently enrolled, has previously completed the courses claimed in Australia, has said he will return home on completion of his studies, has strong family and economic ties to his home country and all the other matters he has raised.

10. Overall the Tribunal is persuaded that the student visa programme is not being used by the applicant to circumvent the intentions of the migration programme.  For the reasons outlined above the Tribunal accepts that the applicant is undertaking his current study or future study for the reasons he claims.

11. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. It follows that the applicant meets cl.500.212(a).

12. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

13. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

1. 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 500 (Student) visa:

   ·cl.500.212(a) of Schedule 2 to the Regulations.

Damian Creedon

Member

Attachment – Direction No.69

DIRECTION NUMBER 69 – ASSESSING THE GENUINE TEMPORARY ENTRANT CRITERION FOR STUDENT VISA AND STUDENT GUARDIAN VISA APPLICATIONS

(Section 499)

I, PETER DUTTON, Minister for Immigration and Border Protection give this Direction under section 499 of the Migration Act 1958 (the Act).

Dated: 18 April 2016

Peter Dutton

Minister for Immigration and Border Protection

Note: Section 499(1) of the Act empowers the Minister to give a written direction to a person or body having functions or powers under the Act if the directions are about the performance of those functions; or the exercise of those powers. Under section 499(2) of the Act, the direction must not be inconsistent with the Act or the Migration Regulations 1994. Under section 499(2A) of the Act, the person or body must comply with the Direction.

Part 1 of Direction No. 69 - Preliminary

Name of Direction

This Direction is Direction No. 69 - Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications.

It may be cited as Direction No. 69.

Commencement

This Direction commences on 1 July 2016.

Interpretation

Act means the Migration Act 1958.

Genuine temporary entrant means a person who satisfies the genuine temporary entrant criterion for Student visa or Student Guardian visa applications.

Genuine temporary entrant criterion refers to clause 500.212(a), 500.312(a) and 590.215(a) at Schedule 2 to the Regulations.

Home country has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Regulations mean the Migration Regulations 1994.

Relative has the same meaning as the definition of that term in regulation 1.03 in Part 1 of the Regulations.

Spouse has the same meaning as the definition of the term in section 5F of the Act.

Student visa means a Subclass 500 (Student) visa

Student Guardian visa means a Subclass 590 (Student Guardian) visa.

Application

This Direction applies to delegates performing functions or exercising powers under section 65 of the Act in relation to assessing an applicant’s temporary entrant criterion for Student visa applications in Schedule 2 to the Regulations.

This Direction also applies to members of the Administrative Appeals Tribunal who review the decisions of primary decision-makers in relation to a Student visa or a Student Guardian visa application.

The genuine temporary entrant criterion must be satisfied by all applicants who make an application for either a Student visa seeking to satisfy the primary criteria for a Student Guardian visa.

Preamble

The Australian Government operates a student visa programme that enables people who are not Australian citizens or Australian permanent residents to undertake study in Australia. A person who wants to undertake a course of study under the student visa programme must obtain a student visa before they can commence a course of study in Australia.  A successful applicant must be both a genuine temporary entrant and a genuine student.

An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.

The genuine temporary entrant criterion for Student visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

a.the applicant’s circumstances; and

b.the applicant’s immigration history; and

c.if the applicant is a minor — the intentions of a parent, legal guardian or spouse of the applicant; and

d.any other relevant matter.

This Direction provides guidance to decision makers on what factors require consideration when assessing the above paragraphs a to d, to determine whether the applicant genuinely intends to stay in Australia temporarily.

Decision makers must take a reasonable and balanced approach between the need to make a timely decision on a Student visa or Student Guardian visa application and the need to identify those applicants who, at time of decision, do not genuinely intend to stay in Australia temporarily

Part 2 of Direction No. 69 - Directions

Assessing the genuine temporary entrant criterion

1. Decision makers should not use the factors specified in this Direction as a checklist. The listed factors are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

2. Decision makers should assess whether, on balance, the genuine temporary entrant criterion is satisfied, by:

   a.considering the applicant against all factors specified in this Direction; and

   b.considering any other relevant information provided by the applicant (or information otherwise available to the decision maker).

3. Decision makers may request additional information and/or further evidence from the applicant to demonstrate that they are a genuine temporary entrant, where closer scrutiny of the applicant's circumstances is considered appropriate.

4. Circumstances where further scrutiny may be appropriate include but are not limited to:

   a.information in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the department indicates the need for further scrutiny;

   b.the applicant or a relative of the applicant has an immigration history of reasonable concern;

   c.the applicant intends to study in a field unrelated to their previous studies or employment; and

   d.apparent inconsistencies in information provided by the applicant in their Student visa application.

5. An application for a Student visa or a Student Guardian visa should be refused if, after weighing up the applicant’s circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.

The applicant’s circumstances

1. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

2. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

3. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

The applicant’s circumstances in their home country

1. When considering the applicant’s circumstances in their home country, decision makers should have regard to the following factors:

   a.whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there. Decision makers should allow for any reasonable motives established by the applicant;

   b.the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to their home country;

   c.economic circumstances of the applicant that would present as a significant incentive for the applicant not to return to their home country. These circumstances may include consideration of the applicant’s circumstances relative to the home country and to Australia;

   d.military service commitments that would present as a significant incentive for the applicant not to return to their home country; and

   e.political and civil unrest in the applicant’s home country. This includes situations of a nature that may induce the applicant to apply for a Student visa or Student Guardian visa as means of obtaining entry to Australia for the purpose of remaining indefinitely. Decision makers should be aware of the changing circumstances in the applicant’s home country and the influence these may have on an applicant’s motivations for applying for a Student visa or a Student Guardian visa.

2. Decision makers may have regard to the applicant’s circumstances in their home country relative to the circumstances of others in that country.

The applicant’s potential circumstances in Australia

1. In considering the applicant’s potential circumstances in Australia, decision makers should have regard to the following factors:

   a.The applicant’s ties with Australia which would present as a strong incentive to remain in Australia. This may include family and community ties;

   b.evidence that the student visa programme is being used to circumvent the intentions of the migration programme;

   c.whether the Student visa or Student Guardian visa is being used to maintain ongoing residence;

   dwhether the primary and secondary applicant(s) have entered into a relationship of concern for a successful Student visa outcome. Where a decision maker determines that an applicant and dependant have contrived their relationship for a successful Student visa outcomes, the decision maker may find that both applicants do not satisfy the genuine temporary entrant criterion; and

   e.the applicant’s knowledge of living in Australia and their intended course of study and the associated education provider; including previous study and qualifications, what is a realistic level of knowledge an applicant is expected to know and the level of research the applicant has undertaken into their proposed course of study and living arrangements.

Value of the course to the applicant’s future

1. Decision makers should have regard to the following factors when considering the value of the course to the applicant’s future:

   a.whether the student is seeking to undertake a course that is consistent with their current level of education and whether the course will assist the applicant to obtain employment or improve employment prospects in their home country. Decision makers should allow for reasonable changes to career or study pathways; and

   b.relevance of the course to the student’s past or proposed future employment either in their home country or a third country; and

   c.remuneration the applicant could expect to receive in the home country or a third country, compared with Australia, using the qualifications to be gained from the proposed course of study.

The applicant's immigration history

1. An applicant’s immigration history refers both to their visa and travel history.

2. When considering the applicant’s immigration history, decision makers should have regard to the following factors:

   a.Previous visa applications for Australia or other countries, including:

   i.if the applicant previously applied for an Australian temporary or permanent visa, whether those visa applications are yet to be finally determined (within the meaning of subsection 5(9) of the Act), were granted, or grounds on which the application(s) were refused; and

   ii.if the applicant has previously applied for visa(s) to other countries, whether the applicant was refused a visa and the circumstances that led to visa refusal.

   b.Previous travels to Australia or other countries, including:

   i.if the applicant previously travelled to Australia, whether they complied with the conditions of their visa and left before their visa ceased, and if not, were there circumstances beyond their control;

   ii.whether the applicant previously held a visa that was cancelled or considered for cancellation, and the associated circumstances;

   iii.the amount of time the applicant has spent in Australia and whether the Student visa or Student Guardian visa may be used primarily for maintaining ongoing residence, including whether the applicant has undertaken a series of short, inexpensive courses, or has been onshore for some time without successfully completing a qualification; and

   iv.if the applicant has travelled to countries other than Australia, whether they complied with the migration laws of that country and the circumstances around any non-compliance

If the applicant is a minor— the intentions of a parent, legal guardian or spouse of the applicant

1. If the primary or secondary applicant for a Subclass 500 Student visa is a minor, decision makers should have regard to the intentions of a parent, legal guardian or spouse of the applicant.

Any other relevant matters

1. Decision makers should also have regard to any other relevant information provided by the applicant (or information otherwise available to the decision maker) when assessing the applicant’s intention to temporarily stay in Australia. This includes information that may be either beneficial or unfavourable to the applicant.