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Posted by on in General

The debate about the proper interpretation of the “genuine temporary entrant” for student visas is continuing in the Federal courts, with no definitive resolution on the horizon. 

On one side of the debate, there is the view of Judge Manousaridis of the Federal Circuit Court as stated in the Khanna case.  In Khanna, Judge Manousaridis held that it is not inconsistent with being a genuine temporary entrant for a person to harbor a subjective hope, wish or plan to remain in Australia after the completion of a course of study if a further visa pathway should become available. 

On the other side of the debate is the view of Judge Cameron, also of the Federal Circuit Court, as stated in the Saini case: namely, that the intention to stay only temporarily must be “unqualified”.  Therefore, under Saini, holding an intention to remain in Australia following the conclusion of one’s studies is incompatible with being a “genuine temporary entrant”.  

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Posted by on in General

Quiz! 

Assume the following scenario: 

Your client is in Australia on a student visa. 

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Posted by on in General

Suppose that you have a client whose application for a Subclass 820 Partner (Temporary) visa is refused in the first instance by the Department on the basis that the Department refuses to “waive” Schedule 3 criteria. 

Suppose further that an application for merits review against the refusal of this visa application is taken to the Administrative Appeals Tribunal.  And suppose that the Tribunal decides that the Schedule 3 criteria should have been waived, the application for the Subclass 820 visa is remitted to the Department and then granted. 

At that point, is it time to relax, pop the champagne corks and assume that since the Department has made a determination when reviewing the Subclass 820 visa application that your client is in a genuine spousal relationship, that the ultimate grant of a Subclass 801 Partner (Residence) visa is a sure thing?  

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The Department of Immigration and Border Protection has adopted new regulations which will give the Department authority to refuse applications for sponsorship of temporary partner visa applications in circumstances where the proposed sponsor has been convicted of an offence involving family violence, or of other “relevant offences”. 

The new regulations have been introduced through the Migration Legislation Amendment (2016 Measures No. 3) Regulation 2016 and are scheduled to come into force on 18 November 2016. 

Here is a link to the Explanatory Statement.

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Must the Minister consider whether Australia has non-refoulement obligations before proceeding to cancel a person’s visa on character grounds? 

This complicated and difficult question was addressed in a decision that was handed down last Friday,

9 September 2016, by a panel of the Full Court of the Federal Court in the case of Minister for Immigration and Border Protection v Le (2016) FCAFC 120.   

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