Australian Immigration Daily News

In an article that I posted last week, I reviewed a decision of the Federal Circuit Court which involved the “genuine temporary entrant” requirement for student visa applicants. In that case, Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971 (20 July 2015), the Court held that an applicant can satisfy the requirement to be a genuine temporary entrant even if they have a desire or wish to remain in Australia following the completion of their studies if a viable pathway should become available.

In other words, according to the decision in Khanna, a person can have “dual “or “overlapping” intentions 1) to return to their home country at the end of their course of studies if there is no further visa option; and 2) to remain in Australia if the further visa option can be realized – and holding these two intentions does not disqualify a person from being characterized as a “genuine temporary entrant”.

Interestingly enough, the “genuine temporary entrant” criterion was put to the test in a different context in another case that was decided by the Federal Circuit Court in May 2015. And again, in this earlier case – Jung v Minister for Immigration &  Anor, (2015) FCCA 1096 (4 May 2015), it was found that a person can simultaneously hold seemingly “inconsistent” or “contradictory” intentions with respect to remaining in Australia and yet nonetheless meet the genuine temporary entrant criterion.

The factual background of the Jung case was that the visa applicant, Mr Jung, had originally come to Australia from South Korea on a student visa, to pursue a doctoral degree in theology. While he was pursuing his studies at Flinders University in Adelaide, he was severely injured in a car accident. He then applied for a “medical treatment” visa. It was one of the criteria for this visa that the applicant demonstrate a genuine intention only to “visit” Australia.

Mr Jung’s application was initially refused by the Department on the grounds that he had not adequately demonstrated that he was obtaining medical treatment in Australia. However, on review, the MRT affirmed the refusal of the visa on the different ground that Mr Jung had not satisfactorily proven that he intended only to visit Australia. 

The MRT was led to this conclusion on the basis of answers that Mr Jung gave during the hearing at the MRT, when he was question by the Tribunal member concerning his “future intentions”.  Mr Jung was asked by the member about his “longer term plans” and about what he intended to do “over the next few years” and responded by stating that he had a “plan to resume my thesis at Flinders University from next year”.  When asked whether he intended to return to Korea, he said: “Not sure now. After my thesis I’m going to do another course…After that I will decide…but I now I am not sure.”  Further, when he was asked by the Tribunal member about possible difficulties he might encounter in Korea as a result of the injuries he had suffered, Mr Jung stated: “In Korea environment for disabled persons is very poor, so if it is available I would like to stay here….So if I can get the opportunity…I would like to stay here for my study.”  Lastly, at the hearing Mr Jung stated that “After thesis I will be back” – apparently meaning that he planned to return to Korea following the completion of his thesis.

On the basis of his replies that he intended to remain in Australia to finish his thesis, the MRT was not satisfied that Mr Jung met the criterion for the medical treatment visa, namely that he genuinely intended to “only visit Australia”.

The Federal Circuit Court held that it was “inherently unreasonable” for the MRT to conclude that   Mr Jung did not genuinely intend to return to Korea because he had also expressly stated a wish to remain in Australia to complete his doctoral studies.  To put it another way, the Court did not see anything wrong with a person’s simultaneously holding two seemingly “contradictory” or “inconsistent” plans for the future – in the case of Mr Jung, to return to Korea upon completion of his medical treatment if a student visa path were no longer open, but to remain in Australia, complete his degree, and then go back to Korea if a visa pathway enabling that course of action were to become available. 

The Court thus determined that since the decision by the MRT did not have an “evident and logical justification”, the MRT had fallen into jurisdictional error, and that its decision to affirm the refusal of the visa should be “quashed” or set aside.

On a certain level, the story of Mr Jung’s case seems like a chronicle of bureaucracy running completely out of control, and of the decision-making process failing to take practical account of the realities of Mr Jung’s personal circumstances.  At the time of his application, Mr Jung was already in Australia undergoing medical treatment relating to the injuries he had suffered in Australia while here lawfully on a student visa. So one has to wonder why, and on what basis, it would be at all sensible for a person in these circumstances to be refused a medical treatment visa.  After all, Mr Jung’s circumstances were completely different from that of a person who is overseas and is seeking to come to Australia in the first instance for a course of medical treatment.

Furthermore, the issue of whether Mr Jung should be considered a “genuine temporary entrant” would already have been tested in the context of his original application for a student visa.  So one has to question why there would be any need for that question to be “re-examined”. In any event, the evidence given before the MRT should have been sufficient to persuade the Tribunal that  Mr Jung’s intentions were to stay in Australia only temporarily: when asked about this point during the hearing before the Tribunal, he said that his plans were to go back to Korea after his studies were finished. And indeed, one should presume that in a rational world, a person whose studies have been interrupted by a completely unforeseeable event like a car accident should be able to get a further student visa to conclude their studies, if such a visa proves to be necessary.

In view of all of these circumstances, the Court’s ultimate determination that the decision that was made by the MRT in this case was “unreasonable” was itself perfectly reasonable!

 Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. ,     Tel: (02) 8068 8837