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3Aug

STUDENT VISAS TO AUSTRALIA – MORE COMPLICATED THAN MEETS THE EYE

By Migration Agent Sydney | Migration Agent Sydney, Immigration Agent Sydney, Visa Appeals, Student Visas, Student Visa Applications | 3 Aug 2016

 

 

International Students are required to meet the Genuine Temporary Entrant requirement for their Australian student visas.

The ‘GTE’ is an issue that has arisen on multiple occasions in the Federal Courts over the last year and remains an issue under the Subclass 500 Student visa that came into effect on 1 July 2016.

International Students are still required to convince the Department of their intention to ‘genuinely stay in Australia temporarily’ as per Regulation 500.212

Over the last two weeks, there have been decisions from the courts that Migration Agents preparing student visa applications need to be aware of.  

The first of these decisions was the High Court’s Khannacase, which came before Judge Manousaridis of the Federal Circuit Court on 21 July 2016.  In his decision, Judge Manousaridis held that the Tribunal had committed jurisdictional error by interpreting the “genuine temporary entrant” requirement to mean that an applicant could not satisfy the criterion if she/he has an intention of seeking to remain in Australia beyond the period of the student visa if a further visa pathway should become available. 

Judge Manousaridis’s held that it is necessary for the Tribunal, in assessing whether an applicant for a student visa meets the genuine temporary entrant requirement, to identify the applicant’s plans if a further visa pathway does not present itself.

If a student visa applicant was to state they would return to their home country if a further visa is not granted, then they could satisfy the genuine temporary entrant requirement. However, if the student visa applicant was to disclose to the Tribunal that they would intend to remain in Australia even if a further permanent visa pathway did not become available, then they would not meet the requirement. 

Immediately following the above decision, the Department of Immigration and Border Protection appealed Judge Manousaridis’s decision to the Federal Court.  In that appeal, the Department of Immigration claimed that Judge Manousaridis’s approach to the interpretation of the genuine temporary entrant requirement had been incorrect. 

The result of the above case was that it left the question of whether a student visa applicant can hold a subjective intention to pursue a further visa pathway if it should become available and still be able to satisfy the genuine temporary entrant requirement unresolved?’

The second case under analysis is  Saini v Minister for Immigration and Border Protection [2016] FCA 858 (29 July 2016), where Judge Cameron took the view that the genuine temporary entrant requirement does not contemplate “anything other than an unqualified intention to stay temporarily” and rejected the idea that “an applicant may harbor the hope of something more than a temporary stay”. 

The Department of Immigration have now adopted a position that was consistent with Judge Manousaridis’s opinion in Khanna (the first case). That is, it’s “possible for a visa-applicant to hold both an intention to remain in Australia temporarily and a desire to remain in Australia permanently if an opportunity arises”. 

In Saini, Judge Logan stated that it is his view that the preferred interpretation of the genuine temporary entrant requirement is a s follows: It is permissible tor an applicant for a student visa to have a subjective intention to seek, at some time in the future, a further visa which would enable a further temporary stay in Australia – for example, a 485 visa, or perhaps a 457 visa, or some other temporary visa. 

In His Honour’s opinion, if an applicant has a “settled intention” at the time of decision to seek a visa at some time in the future that would lead to anything more than permanent residence, then a conclusion can safely be drawn that the applicant does not satisfy the genuine temporary entrant requirement. 

If you would like to discuss how we can help your Australian Student Visa, please contact our Principal Migration Agent in Sydney to discuss.

 

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