Australian Immigration Daily News

One of the most confounding aspects of Australia’s migration laws is the requirement that applicants for student visas demonstrate that they “intend genuinely to stay in Australia temporarily”.  This requirement is a common criterion for all categories of student visas – ranging from the Schools Sector (subclass 570) right through to the Post Graduate Research Sector (subclass 574).

Nonetheless, it is well known to everyone that one of the most common pathways to permanent residency and citizenship in Australia is for students to come from overseas and then to obtain a further visa after completing their educations, enabling them to remain here to work and live. Without even looking at statistics, once can be confident that many hundreds of thousands of people have followed this exact course.  And, in view of Australia’s ongoing “skills shortage”, one would think that Australia would want people who get their educational qualifications here to stay and participate in the Australian workforce and the advancement of the Australian economy. Viewed from this perspective, the “genuine temporary entrant” criterion for student visas seems to be a strange one indeed.

Given how attractive Australia is, there can be little doubt that a large number of people entering Australia on student visas would say that they would like to stay in Australia after finishing their studies if an opportunity existed for them to do so. It is therefore very legitimate to ask whether possessing a desire to stay in Australia on a permanent basis, if possible, would disqualify an applicant from obtaining a student visa, on the grounds that they fail the test of being a “genuine temporary entrant”.

The Federal Circuit Court of Australia (per Judge Manousaridis) had an opportunity to consider this exact question in a judgment that was delivered just this week, on 20 July 2015.  The case was Khanna & Ors v Minister for Immigration & Anor (2015) FCCA 1971.

The answer that was given was an unqualified “No”. 

The Court held that there is not any inconsistency at all in a student visa applicant meeting the “genuine temporary entrant” criterion and at the same time having a desire to stay in Australia if the opportunity presents itself.  Moreover, the Court held that there is no problem whatsoever for a student visa applicant to state this wish to remain openly and expressly.

The factual background of the Khanna case was that the applicant, Ms Khanna, was an Indian national who had originally entered Australia on a student visa. She had originally enrolled in certificate courses in “hairdressing” and “hairdressing salon management” and had then completed diploma courses in management.  She then sought a further student visa to take a Bachelor of Business degree at Macquarie University. However, her application for this visa was refused.  She then appealed the refusal of the student visa application to the Migration Review Tribunal.

At the hearing before the MRT, Ms Khanna gave evidence that “she would like to settle in Australia in the long-term if given the chance”.  On the basis of this statement, the MRT was not satisfied that Ms Khanna had a genuine intention of staying in Australia only temporarily. It thus affirmed the refusal of her application.

In her appeal to the Federal Circuit Court, Ms Khanna, who was self-represented, argued that there was “nothing wrong” with her having an intention to remain in Australia if she ultimately qualified to do so through an available visa pathway.  She argued that the MRT had incorrectly concluded that her statement that she wanted to stay in Australia if she could implied that she did not intend to stay in Australia temporarily.  Judge Manousaridis agreed with this submission.

It was the Court’s reasoning that a student visa applicant can simultaneously hold two separate “intentions” with respect to staying in Australia: 1) to depart from Australia at the conclusion of their student visa period if they do not obtain some further visa that would entitle them to stay; and 2) to remain in Australia following the conclusion of their student visa provided that they obtain a visa which allows them to do so lawfully.  Judge Manousaridis concluded that there was no necessary “inconsistency” between these two “intentions”.

The Court determined that the MRT had committed “jurisdictional error” by determining Ms Khanna’s case on the basis that her intention to remain in Australia if given the opportunity necessarily implied that she did not have a genuine intention to stay in Australia temporarily.  It was Judge Manousaridis’s finding that the MRT had failed to undertake a relevant inquiry, namely whether the applicant intended to return to her home country at the end of her student visa period if she did not gain some further visa entitlement to remain in Australia.  Accordingly, His Honour decided that it was appropriate to “quash” (overturn) the decision of the MRT.

It is not, in my opinion, an exaggeration to describe the Court’s decision in Khanna as being “hugely significant”.  The decision clears away some “conceptual underbrush” that can stand in the way of perfectly legitimate student visa applications. It demonstrates that there is nothing in the world wrong with a student visa applicant’s having a subjective desire to stay in Australia on a more permanent basis if a visa pathway becomes available. Under the Khanna decision, having such a perfectly reasonable desire does not disqualify an applicant from satisfying the criteria for getting a student visa.  The only qualification is that the applicant must hold an intention to return home at the end of their student visa period if a pathway does not present itself.

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