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Important Decisions About Student Visas and the GTE!!!
What is the proper interpretation of the genuine temporary entrant requirement for student visas?
This is a question that has been hotly litigated in the Federal courts over the last year.
And it is one that remains highly relevant under the new student visa framework that came into force on 1 July 2016. That is because the genuine temporary entrant criterion has been carried forward into the new Part 500 of Schedule 2: new clause 500.212 reads as follows:
“500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily….”
Over the last two weeks, there have been decisions from the courts that anyone who is assisting an applicant for a student visa needs to know about.
The first of these decisions was the High Court’s disposition of the Khanna case, which occurred on 21 July 2016.
The Khanna case originally came before Judge Manousaridis of the Federal Circuit Court. In his decision, Judge Manousaridis held that the Tribunal had committed jurisdictional error by interpreting the “genuine temporary entrant” requirement to mean that an applicant could not satisfy the criterion if she/he holds a subjective hope or intention of seeking to remain in Australia beyond the period of the student visa if a further visa pathway should become available.
It was Judge Manousaridis’s view in Khanna that it is necessary for the Tribunal, in assessing whether an applicant for a student visa meets the genuine temporary entrant requirement, to inquire as to the applicant’s plans and intentions are if a further visa pathway does not present itself: if an applicant states that they would return to their home country if a further visa is not granted, then they could satisfy the genuine temporary entrant requirement, but if they disclose to the Tribunal that they would intend to remain in Australia even if a further permanent visa pathway did not become available, then they would not meet the requirement.
That seems fair enough, as far as it goes, doesn’t it?
Well, what happened in Khanna was that the Department appealed Judge Manousaridis’s decision to the Federal Court. In that appeal, the Department claimed that Judge Manousaridis’s approach to the interpretation of the genuine temporary entrant requirement had been incorrect.
At the Federal Court level, Judge Reeves found that the Tribunal had properly found that the student visa applicant did not satisfy the genuine temporary entrant requirement, and that the Tribunal had thus acted properly in affirming the Department’s refusal of the student visa application. Interestingly enough though, Judge Reeves did not find it necessary to consider whether Judge Manousaridis’s interpretation of the genuine temporary entrant requirement was correct or incorrect.
The applicant in Khanna then tried to take the case to the High Court. However, the High Court refused the applicant’s application for “special leave” to have her case considered.
So the ultimate result of the litigation in Khanna was that it left the question of whether a student visa applicant can hold a subjective intention to pursue a further visa pathway if it should become available and still be able to satisfy the genuine temporary entrant requirement open and undecided.
And to make matters even more confusing and unsettled, at the same time that the Khanna case was working its way through the courts, a second case, posing the same question about how the genuine temporary entrant requirements should be interpreted, was also winding its way through the court system.
This was the Saini case: Saini v Minister for Immigration and Border Protection [2016] FCA 858 (29 July 2016)
And when Saini was before the Federal Circuit Court, Judge Cameron arrived at an interpretation of the genuine temporary entrant requirement that is in direct conflict with Judge Manousaridis’s interpretation in Khanna. Judge Cameron took the view that the genuine temporary entrant requirement does not contemplate “anything other than an unqualified intention to stay temporarily” and rejected the proposition that “an applicant may harbor the hope of something more than a temporary stay”.
Finding yourself a bit confused? Keep reading.
First, another layer of complication and confusion!
When the Saini case was appealed to the Federal Court by the applicant, the Department appeared to have adopted a position that was consistent with Judge Manousaridis’s opinion in Khanna!
That’s right! Surprising (astonishing) as it may seem, the Department made submissions that the genuine temporary entrant requirement could be interpreted to mean that it was “possible for a visa-applicant to hold simultaneously an intention to remain in Australia temporarily and a desire to remain in Australia permanently if an opportunity arises”.
Read that again! Yep, before the Federal Court in Saini, the Department was (apparently!) accepting the exact same interpretation that it had fought against in Khanna.
Ok, last chapter, and the one that tells us how at least one judge of the Federal Court, Judge Logan, believes that the genuine temporary entrant requirement really should be interpreted.
In Saini, Judge Logan stated that it is his view that the preferred interpretation of the genuine temporary entrant requirement is a s follows: It is permissible tor an applicant for a student visa to have a subjective intention to seek, at some time in the future, a further visa which would enable a further temporary stay in Australia – for example, a 485 visa, or perhaps a 457 visa, or some other temporary visa.
However, in Judge Logan’s view, this is where the line should be drawn. In His Honour’s opinion, if an applicant has a “settled intention” at the time of decision to seek a visa at some time in the future that would lead to anything more than temporary residence, then a conclusion can safely be drawn that the applicant does not satisfy the genuine temporary entrant requirement.
So, this is where the law presently stands.
It’s my own view that this decision is problematic, and that the correct approach was the one adopted by Judge Manousaridis in the original Khanna decision.
It’s of course a well-known fact that many tens of thousands, if not hundreds of thousands, of Australia citizens originally came here as international students, and have then remained after getting permanent work visas (ENS, 189, 190 or previous equivalents). And does not Australia want students who have earned their qualifications and skills to remain here and to contribute to the economy and the life of the community?
And here is a dilemma for anyone who is assisting a student visa applicant: Suppose you have an applicant who does have a desire, wish or dream to stay permanently in Australia after they finish their studies. How do you counsel them to respond if they are asked about their intentions directly by the Department or at the Tribunal stage? Wouldn’t you be remiss in your obligation to your client if you didn’t tell them that if they disclose a desire to remain in Australia permanently, rather than temporarily, that their student visa application is bound to be rejected?
Your thoughts?
Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
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Tuesday, 02 August 2016The other option - which I would totally disagree with - is that if they are intent on preventing anyone who has ever held a student visa from being eligible for any type of permanent visa would be to amend the Act accordingly or put something into Schedule 1 as they have done for "unauthorised maritime arrivals" (although why on earth would they want to exile "unauthorised maritime arrivals" to Siberia by making a SHEV the only possible pathway is beyond me. Suppose an "unauthorised arrival" happens to be a person with great talent and ability - should they be barred from the possibility of permanent residency other than by way of the equivalent of Siberia? Meanwhile my view is that the genuine temporary entrant requirement for student visas is hopelessly tangled now, is far too subjective and frustrates legitimate progression from student to contributing citizen. Is that really the objective of the Department/the legislation? And who can explain why the Department fought the Khanna case and then made submissions consistent with the holding of Khanna in the Saini case. That makes no sense whatsoever to me!
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Wednesday, 03 August 2016
This is because Minister direction 54 and Minister direction 69 are different.
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Wednesday, 03 August 2016
Having had 6 offshore refusals in the last 3 months including 2 minors on GTE, I can't say am anywhere closer to understanding the requirement...and I agree it is applied far too subjectively.
For example in the case of the minors, based on a 2 minute conversation with the father who got apparently 'hesitated' when asked the date of births of his children, and got one of the children's year of birth incorrect, which he then corrected immediately, the CO refused the visas for failure to meet the GTE requirements .."I could not be satisfied that the respondent was indeed the father of the 2 children applying to study in Australia"...despite having been provided birth certificates, ID's etc. The CO did not even ask the father what his intentions were in sending the children to study in Australia, which is what I thought this requirement was all about. I guess if the CO wasn't satisfied she was speaking to the father of the children it follows she couldn't be satisfied of the 'parent's intention'.
Or of the case of the same CO refusing 3 other secondary applicants based on GTE with nothing but "given your spouse is currently studying in Australia, I find that you have significant ties in Australia more than in your home country" and as such refused under GTE...no comment given or weight given on the balance of evidence provided in support including evidence of significant economic ties including significant business investments, balance of family, financial capability etc.
Thank you for sharing this decision I will read to see if I can find other helpful guidance for I sure need it at the rate of refusals on GTE. -
Wednesday, 03 August 2016
This is an interesting post indeed! Thank you Concordia Pacific for this post.
I also noted that the student visa uses similar method in assessing genuinely stay in Australia temporarily as a student and genuinely stay in Australia as visitor.
Nevertheless, in my opinion this issue create a better opportunity for us as professional and prevent non registered migration agent or non migration lawyer to pollute the market. -
Thursday, 04 August 2016
Registered migration agents and migration lawyers are still scratching their heads over the interpretation of this regulation, doesn't weed out anything. It's not supposed to be defined otherwise DIBP wouldn't have absolute power.
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Wednesday, 03 August 2016
I do agree that the GTE has very ambiguous interpretation. Moreover, the decision makers have unlimited discretion when assessing that criterion. And there is no review rights for offshore applicants which gives the officers even more power. No need to mention about the procedural fairness. It seems that we have a very big hole in the law here which has to be fixed.
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Thursday, 04 August 2016
Confusion worse confounded!
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Thursday, 04 August 2016
The law is rubbish and was only placed there to give case officers the power to refuse a student visa application for any reason they like under the GTE's broad interpretation. Same goes with Tourist visas. DIBP decisions have become a joke.
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Friday, 05 August 2016
After the case officer gets their power fix the tribunal member rips the applicant's heart out and rubber stamps it with 'refusal decision affirmed'. Why bother having a GTE when a visa is called 'temporary'. Doesn't it imply that it is 'effective for a time only; not permanent'? Does the start and end date not manage the stay period effectively enough? Get rid of it and confusion is gone. it's a win win for all! (the case officers won't be happy but who cares!)
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Tuesday, 14 February 2017
Recently i got a visa refusal and gave me a reason only they are not satisfied by my profile.In my profile i have a all documents with governments proofs i passed B.tech in Mechanical with first class in all semester and also i got all approval which needed in immigration process and got secure 5.5 bands so university gave me 10 weeks elly course.Than why immigration give me a visa refusal??i dont understand there reason, i fullfilled all requirements than how could they told me my intentions are not good to live in Australia for temporary entrants??please tell me how many chances in relodgement of visa files for visa??for that i already send all appropriate docs and proofs,for proove my intention.
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Thursday, 04 May 2017
Hi friend one of my friends got same what is ur further step Please reply to this no 8686186611 this is saikirangoudbodige my Facebook name please reply for helping him thank you
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Saturday, 01 April 2017
My visa was rejected on 31st March 2017 showing the same reason Migration Act 1994. I had already mentioned in the final SOP that I would return to my home country after the completion of my study over there. Indeed my SOP was far better than my other friends as well I would do many mores progress and developments in the field of Information Technology(IT) in my home country, Nepal.However the Australian High Commission rejected my visa for no any weaker points...
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Friday, 20 April 2018
Then you apply second time???
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Saturday, 08 April 2017
Qualifications: Slc 74%/2013 ~ +2 59.10%/2015,science
Ielts: 6 not less than /5.5-
1 yr gap: Training on computer hardware,networking,blogging,adsense.
Applied in holmesglen tafe Melbourne-IT(Certificate IV)
Docs:
1.Annual Income:18 lakh
2.Bank Balance:40 cash deposit/landsold
{Visa Refuse}
Reasons: “I am not satisfied that clause 500.212 in schedule 2 of the immigration regulation is satisfied.
*This clause is also known as the Genuine Temporary entrant criterian.
Ministerial direction no.69 section 499 of the immigration act.
I had already mentioned in the final SOP that I would return to my home country after the completion of my study over there.
??????? Is there any mindReader machine??????????
1.What Should I change in documentation?
2.According to my profile which method should I follow plz suggest me? -
Monday, 05 June 2017
My student visa has been refused today on the basis that I do not satisfy GTE criteria under clause500.2.2.1 . As I don't have ties to my country because I am not married & don't have assets on my name . I would like to ask Visa officer that how many Australians are married till age of 20 years & how many assets they make till they turn 18 .
then how they can refuse an application on these basis .
There is something wrong with the government policies for sure or they have been ordered to not grant Visa's & find any reason to refuse . Any way I don't have interest in going to Australia any more as I believe they don't have any ethics or sense what they are doing .
Is there anyone who can advise , how I can take this matter to their department even though I lost interest in this country but there will be plenty like me who want to appeal against it & don't have the clue how yo do it. -
Tuesday, 06 June 2017
is the GTE the same as SOP?
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Sunday, 09 July 2017
Yes mate thats the same
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Sunday, 23 July 2017
My visa got refused clause 500.215 related to OSHC insurance coverage. For which i have provided as per they request within the time period. They told me to go for merit review.
what i am suppose to do. -
Friday, 20 October 2017
Hello everyone. It seems that we all have faced the same problem. I was accepted for a PhD program in the Sydney university and I applied for visa subclass 500 while I hold score 7 in the academic IELTS. I also paid for the OSHC in advance. With 5 scientific publications, and a letter of job offer from an employer in my home country, I got refused. My boyfriend and I did really not expect a refusal after 9 weeks. Here is the reason of disapproval:
As clause 500.212 is not met by the applicant, I find the criteria for the grant of Student visa are not met by the applicant. Therefore, I refuse the application by the applicant for Student visa.
I find that you have not demonstrated sufficient personal, financial or employment circumstances which may act as incentives to return to your country and comply with the conditions of a Student visa for Australia. On balance the combination of all these factors demonstrates that you do not meet the genuine temporary entry criterion!!!!!
Now I really need to know if anybody has received a positive feedback after re-lodging/ reapplying or not??
Immigration blog
I would think that if this were actually a problem...that is the possibility that an applicant might want to apply for PR,then condition 8534 would be mandatory on all student visas. That condition would, in the absence of a waiver, preclude the making of any application other than a protection visa.