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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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Wednesday, 08 November 2017MY VISA IS REFUSED TODAY.
The reason given: I am not satisfied that clause 500.312 in Schedule 2 of the Migration Regulations is satisfied. This clause provides that: 500.312 The applicant is a genuine applicant for entry and stay as a member of the family unit of a person who holds a student visa, having satisfied the primary criteria for that visa, because
a)(b)the applicant intends genuinely to stay in Australia temporarily, having regard to (i)(ii)(iii)(iv)the applicant’s circumstances; and the applicant’s immigration history; and if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and any other relevant matter; and the applicant intends to comply with any conditions subject to which the visa is granted, having regard to: (i) (ii) the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any) and the applicant’s stated intention to comply with any conditions to which the visa may be subject and of any other relevant matter. This clause is also known as the genuine temporary entrant criterion.
please tell me what will be my next way to apply and what are the chances to come. -
Thursday, 09 November 2017
Persons who are seeking advice about their specific situations should contact help@migrationalliance.com.au for referral to a Registered Migration Agent/migration lawyer.
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Tuesday, 28 November 2017
My visa application was rejected yesterday solely based on my nationality regardless of the documents provided.
The CO put many unreal and lame reasons as to why the application was refused such as being single or using my own bank account.
It is a real shame to see how a 1st world country discriminate and judge applicants based on their home country rather than their qualification. -
Friday, 09 February 2018
what is the meaning of gte approval by uni and college if visa is rejected within criteria of gte again....??just irritating to capable one
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Friday, 08 June 2018
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, 08 June 2018
My visa application was rejected today , 2nd time... same reason !!! --- > I am not satisfied that the applicant meets Clause 500.212 in Schedule 2 of theRegulations. This clause provides that: 500.212The applicant is a genuine applicant for entry and stay as a student because
a) the applicant intends genuinely to stay in Australia temporarily, having regard toi) the applicant’s circumstances; and(ii) the applicant’s immigration history; and(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of theapplicant; and(iv) any other relevant matter; and(b) the applicant intends to comply with any conditions subject to which the visa is granted,having regard toi) the applicant’s record of compliance with any condition of a visa previously held by theapplicant (if any); and(ii) the applicant’s stated intention to comply with any conditions to which the visa may besubject; and(iii) of any other relevant matter.Ministerial Direction No. 69 “Assessing the genuine temporary entrant criterion for Studentvisa and Student Guardian visa applications” sets out the factors that must be takeninto account when assessing the genuine temporary entrant criterion for Student visa applications.
I don't understand why???!! completed all their requirements but still ?? what's the point of having EXPO in my country from different AUS Universities to convince international students to study in Australia if the immigration officer will just kept on denying applicants from other countries??? first I got refused " bec. she noted that , i haven't attached my business papers.. but TRUELY all my business documents was fully attached together with my application. so I re-apply and unfortunately got deny again, 2nd refusal reason that above mentioned. paying for visa fee is not a joke its big .. how come they do like that???!!! -
Friday, 08 June 2018
Hello you aslo second time try
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Friday, 08 June 2018
Plz give me information 1 time reject second time try to apply
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Friday, 08 June 2018
My visa was rejected on 4 june 2018 showing the same reason Migration . 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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Monday, 11 June 2018
I think Australian high commission is playing with feelings of overseas students. I am from nepal, I secured 69% in +2 and 68% in SLC...being a genuine student I had fulfilled all criteria for student visa to Australia. My family have good income source as my both father and mother works on reputed cooperatives in our hometown. I have submitted all my documents with proofs from the government authorities despite my efforts I was rejected on June 3 2018, what is this...I am speachless I never thought it will happen to me because from all aspects I was genuine student. Can anybody help me how to dealt with clause 500.212...love from Nepal to this page...
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Wednesday, 04 July 2018
how will visa officer know that by reading all the documents students is genuine and they will not return back to their home country.
Visa officer are bullshit -
Wednesday, 11 July 2018
well ! everyone are on the same boat, I got tourist visa refusal, in which immigration mentioned that I do not meet the GTE requirement, however, I visited Australia once (got visa first time). After three months I applied for student visa and not a single university gave me offer letter as they all said that I do not meet GTE requirement. This is not fair I am eligible, genuine and convinced them in my SOP but still all replied same. Sorry but, Australian rules sucks.
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Thursday, 04 April 2019
Do we get refund?
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Friday, 31 January 2020
Some over suspecting make the cases worst.I cannot understand why people cant coming with proper personal character and skills for intention of applying PR.There is a skill and requirement assessment at the student requirement , that can filer the cases that is not satisfy the future requirements.Some time it may miss the talented peoples that can contribute high to the country.I think there should be a logical and clear method to selecting that can understand and proper control to get the chance to studies than current uncleared method.One of my closest friend affected the uncleared refusal after long time of preparation period and that is affection further to another visa application to any other country. Friend has a good character and skills. With a uncleared decision make end up her future life carrier improvement.Please suggest a good method to make the people life successful than destroying their life with unreasonable decisions.
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Friday, 28 August 2020
sir my student visa application was refused on 16 march 2020 due to clause 500.212 ministerial direction number 69.
can i reapply for australian student visa application?
what should i do to improve my visa application? -
Thursday, 16 February 2023
I got refusal reason migration act
My profile is
10th passout in 2019 with 70%
12 in 2021 with 72%
One years diploma of business accounting
Fund 33 lac
3 cr itr
Immigration blog
Hi maahi.. then you apply again your visa?? Plz reply me i have a same problem