Australian Immigration Daily News

In the last couple of months, we have seen that some judges of the Federal Circuit Court have differing views concerning how the criteria for the grant of a student visa should be applied.

In late July, Judge Manousardis held, in Khanna & Ors v Minister for Immigration & Anor, (2015) FCCA 1971 (20 July 2015) that having a desire to settle in Australia on a long term basis if an appropriate visa pathway become available is not inconsistent with having a genuine intention to stay in Australia only temporarily (if the applicant is not ultimately successful in obtaining a visa to remain in Australia at the end of the student visa period).

Indeed, in my post about the Khanna case, I commented that Judge Manousardis’s interpretation is consistent with what I believe is a very widely-held perception of the student visa program, namely that there are many tens of thousands (if not more!) people who originally came to Australia as students, and who then decided to stay here to work and live after they were able to gain further visas either of a temporary or permanent kind.  And indeed I would suspect that if most student visa holders were asked about their “subjective intentions”, they would say that they would like to stay in Australia after their studies are completed if there is a viable pathway for them to do so.  Furthermore, the very structure of Australia’s visa system certainly seems to contemplate that people who come here as students may be allowed to remain, with the “Temporary Graduate” visa (subclass 485) being a prime example!

Nonetheless, in a decision that was handed down about 5 weeks after Khanna, called Saini & Anor v Minister for Immigration & Anor (2015) FCCA 2379 (3 September 2015), Judge Cameron took an entirely different view of the matter.  In Saini, Judge Cameron held that the phrase that appears in the criteria for student visas, that the “Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily”, does not leave any room for a person to hold a desire to stay in Australia if an appropriate visa pathway presents itself.  In his opinion in Saini, Judge Cameron held that the student visa criteria should be read in such a way that holding an intention to remain in Australia if qualified to do so at the end of a student visa would necessarily amount to having a lack of a genuine intention to stay “temporarily”.  Consequently, it was Judge Cameron’s view, as stated in Saini, that there is no scope for an applicant to “harbor the hope of something more than a temporary stay”.

A third “judicial voice” has now been added to this debate.  In a judgment that was handed down at the end of last week, Singh v Minister for Immigration & Anor (2015) FCCA 2441 (24 September 2015) Judge McGuire held that the “correct test” was the one that was stated by Judge Manousardis in Khanna.  

Ironically enough, though, Judge McGuire also held in Singh that the Tribunal did not commit jurisdictional error in reaching a conclusion that the applicant did not genuinely intend to stay in Australia only temporarily.

In the event, it was the particular facts of the case that proved fatal to the applicant’s student visa application.

Those facts were as follows: After having originally arrived in Australia as the holder of a subclass 572 student visa in 2009, and after having been granted a further student visa that was valid until 2013, the applicant applied for a third student visa. This third application stated that the applicant wished to undertake courses in commercial cookery and hospitality.  This application was refused by a Departmental officer on the grounds that the officer was not satisfied that the applicant met the requirement to be a genuine temporary entrant.

The Tribunal affirmed the Department’s refusal of the student visa application.  It found that the applicant had not expressed any “particular passion” for the food/hospitality business beyond saying that he was “interested in cooking”, and that, although he had claimed that it was his goal to open a restaurant, he had not been able to provide any detail about what type of restaurant, or how he would operate it competitively. Further, the Tribunal considered that the evidence that the applicant had given, to the effect that he would be “better off in Australia than if he returned to India”, as adverse to his case.

Of consequence, the Tribunal specifically ruled that expressing sentiments that he wished to apply for permanent residency did not “automatically” cause the Tribunal to conclude that the applicant did not genuinely intend to stay in Australia temporarily. However, having regard to the evidence as a whole, the Tribunal determined that the “applicant was seeking to use the student visa program as a means of maintaining ongoing residence in Australia”. 

It will be interesting to follow how this issue is sorted out before the courts, and whether there will be a definitive pronouncement about how the genuine temporary entrant criterion should be applied.

My own opinion is that the interpretation stated by Judge Manousardis in the Khanna  case represents the better approach, and is the one that will ultimately be consistently used.

What do you think?      

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