Australian Immigration Daily News

The debate about the proper interpretation of the “genuine temporary entrant” for student visas is continuing in the Federal courts, with no definitive resolution on the horizon. 

On one side of the debate, there is the view of Judge Manousaridis of the Federal Circuit Court as stated in the Khanna case.  In Khanna, Judge Manousaridis held that it is not inconsistent with being a genuine temporary entrant for a person to harbor a subjective hope, wish or plan to remain in Australia after the completion of a course of study if a further visa pathway should become available. 

On the other side of the debate is the view of Judge Cameron, also of the Federal Circuit Court, as stated in the Saini case: namely, that the intention to stay only temporarily must be “unqualified”.  Therefore, under Saini, holding an intention to remain in Australia following the conclusion of one’s studies is incompatible with being a “genuine temporary entrant”.  

The Department evidently did not like the interpretation used by Judge Manousaridis in Khanna, because it appealed that decision to the Federal Court.  However, when Khanna was decided at the Federal Court level, the Court (Judge Reeves) did not decide which of the two conflicting interpretations is correct. 

So at this stage, because there are two strands of judicial interpretation that go in different directions, the issue remains: “up in the air”. 

The continuing controversy about the genuine temporary entrant criterion brings to mind the lyrics from the Joni Mitchell song, “The Circle Game”: 

“We're captive on the carousel of time
We can't return we can only look behind
From where we came
And go round and round and round
In the circle game” 

Are we destined to keep going round and round and round on this issue?     

Well, a fairly recent decision from the Federal Circuit Court  (August 2016) in the case of Bajwa v Minister for Immigration & Anor (2016) FCCA 2266 suggests that we are likely to go around at least a bit more, and maybe a lot more – who knows? 

In Bajwa, the Federal Circuit Court (Judge Riley) applied the Saini decision, and did not refer to the conflicting decision in Khanna.   

And in Bajwa, it seems that both the applicant’s migration history and his own evidence before the Tribunal both worked against him, and led the Tribunal to affirm the Department’s refusal of the student visa application.  

The applicant’s history was that he had enrolled in 21 courses since arriving in Australia on a student visa, and that he had only completed 5 of those courses.  This background led the Tribunal to conclude that the applicant’s pattern of study “did not form a cohesive whole such as would be likely to lead to a particular career path”.  

The applicant had also applied for a 457 visa following his arrival in Australia. This fact together with the applicant's course record led the Department to conclude that the applicant was “using the student visa application as a means of maintaining residence in Australia and that he did not genuinely intend to stay in Australia temporarily”. 

Even more fatal to the applicant was the evidence he gave at the hearing before the Tribunal: When he was asked if it was his plan to stay in Australia, the applicant answered that it was. Also during the Tribunal hearing, the applicant also said that “he wished to remain in Australia indefinitely”. 

Basically, this evidence “cooked the applicant’s goose” – he lost his case before the Tribunal, and the Federal Circuit Court did not find any error on the part of the Tribunal in affirming the refusal. 

So what is the moral of this case? 

The law may, at this point, remain unsettled about the correct approach to interpreting the genuine temporary entrant criterion. 

But given the strand of judicial authority in Saini to the effect that the applicant’s intention to remain in Australia only temporarily must be unqualified, it is extremely perilous for an applicant to openly state to the Department or the Tribunal that they might wish to stay in Australia after their studies are finished.  

And it would be sound legal advice to inform an applicant that whatever her or his subjective future intentions, hopes, dreams etc about remaining in Australia to follow a further visa pathway after the conclusion of studies, openly and directly declaring that intention might very well spell the doom of their student visa application. 

So the strategic approach that would be most protective of a student visa application would be for the visa applicant to remain silent about her/his longer term goals and aspirations for a future life in Australia, and not to expressly declare her/his subjective intentions, and for the applicant to state only that it would be her/his intention to return to her/his home country following the conclusion of the course of studies. 

One has to question whether the genuine temporary entrant criterion is creating an unhealthy situation where applicants cannot be “honest” about declaring their long term intentions. 

And can it really be the case that Australia does not want talented students who have earned qualifications here to remain and contribute the skills they have gained through their studies to advancing Australia’s economy and society?  That would seem to be the message that would result through strict interpretation of the genuine temporary entrant criterion.

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