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Australian Immigration Daily News
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Judge v Judge
Earlier this year a Federal Circuit Court judge set aside a decision of the MRT affirming a decision by the Department to refuse a student visa.
The judge held that a student visa applicant wishing to (ultimately) settle in Australia did not fail to meet the requirement that overseas students must have an intention to “genuinely to stay in Australia temporarily.”
Below is an extract from his judgement
38 The Tribunal made a jurisdictional error by assuming that the applicant’s wishing to settle in Australia in the long term, if given the opportunity, implied that the applicant did not intend genuinely to stay in Australia temporarily. The Tribunal thus failed to consider whether the applicant intended to return to her home country at the end of the period for which the Subclass 573 visa she applied for would be valid.
http://www.austlii.edu.au/au/cases/cth/FCCA/2015/1971.html
However another judge has disagreed -below is part of the judgement:
23. There is no reason to believe that cl.572.223 (1) (a) contemplates anything other than an unqualified intention to stay temporarily. The sub-clause talks only of an intention “genuinely to stay in Australia temporarily”, a form of words which does not suggest that an applicant may harbour the hope of something more than a temporary stay. The clause’s use of the word “genuinely” reinforces the impression that the applicant must unqualifiedly intend his or her stay to be temporary.
Its use points only to that conclusion. I therefore respectfully disagree with Judge Manousaridis’s statement in Khanna that an intention to remain in Australia if qualified to do so at the end of a student visa would not necessarily amount to the lack of an intention to stay temporarily. I find that it would amount to the lack of such an intention because the intention to stay temporarily would not be unqualified as cl.572.223 (1) (a) requires.
http://www.austlii.edu.au/au/cases/cth/FCCA/2015/2379.html
Applicants and AAT members are therefore left with a confusing situation that will take a decision from a higher court to resolve.
This news is published with permission from Peter Bollard: LEWIS & BOLLARDSolicitors & Migration Experts
Immigration blog
The second case referred to in the article above from Lewis & Bollard is Saini & Anor v Minister for Immigration & Anor [2015] FCCA 2379 (3 September 2015) which can be accessed through the link provided in the main article. I believe that the better interpretation is the one adopted in Khanna, which takes the view that it is perfectly consistent with a genuine intention to stay in Australia only temporarily to also harbour a subjective desire to remain if a further visa pathway becomes available. No doubt thousands of overseas students hold such intentions and in fact 485 visas are really designed for the express purpose of enabling overseas students to remain and work in Australia once their studies here are completed. In my opinion it is clearly in Australia's own interests to allow students who have gained skills and competencies while here to remain in Australia and to contribute to the economy, and as the Khanna decision illustrates, there is certainly a reasonable reading of the legislation that will facilitate this outcome. I would reckon that the overseas student population would fall dramatically if the door were to be closed on every person who held a subjective desire to seek to remain in Australia if a viable migration pathway were to become available!