Australian Immigration Daily News

By Svetlana Gunaratne  - Member of Migration Alliance and RMA

Genuine Temporary Entrant (GTE) criterion is applicable to a number of visas:

1. Student and Student Guardian Visas

2. TSS Visas (short term)

3. Visitor Visas

The Ministerial Direction 69 and Procedural Manual (PAM3) provide the decision makers with the guidelines of assessing the GTE criteria.

Since the GTE was introduced in November 2011, the DIBP (currently known as the DHA) is aiming to keep the integrity of the program. In 2013 the DIBP conducted the review of the effectiveness of the GTE requirements.

http://www.tda.edu.au/cb_pages/files/January%202014-Review%20of%20the%20effectiveness%20of%20the%20GTE%20requirement.pdf

“As an open and accountable organisation, DIBP seeks to ensure that when a client is assessed as not meeting the GTE requirement and is refused a Student visa, the reasons for such a finding are clearly expressed by the visa processing officer in the decision record. This helps ensure that the client understands what factors a processing officer has considered and why these factors are relevant. In the international education sector, such information is also often of interest to education providers, agents and other stakeholders.”

In March 2014 the Australian Council for Private Education and Training (ACPET) submitted the response to the DIBP review of the GTE criteria:

https://www.acpet.edu.au/uploads/files/Australian%20Council%20for%20Private%20Education%20and%20Training%20GTE%20Review.pdf

“The introduction of the Genuine Temporary Entrant (GTE) criterion for student visas has become a contentious additional barrier to studying in Australia. Since its introduction in November 2011, ACPET has collated over250 examples of questionable visa refusals on the basis of the GTE criterion, applied to applicants in many low migration risk as well as higher migration risk countries.”

 The ACPET concluded in their submissions: 

“ACPET concludes by noting that the GTE is still acting as a deterrent to genuine students. It is ACPET’s position that there is still some way to go to improve review processes before the GTE can be said to meeting its policy objectives.” 

There is another great article “Australian Student Visas: Assessing how the GTE is assessed” prepared by Nishadee Perepa (Australian National University): 

http://press-files.anu.edu.au/downloads/press/n2297/pdf/ch08.pdf

Nishadee argues that:

Australia’s test is in fact subjective, and the reasoning for decisions can be unclear, appear inconsistent and lack transparency. 

The submissions by the Independent Schools Council of Australia (ISCA)

http://isca.edu.au/wp-content/uploads/2017/02/2014-03-28-ISCA-GTE-Submission.pdf

 are indicative that:

“The GTE proved controversial from the outset as many providers and peak bodies complained that the application of the GTE was uneven, subjective, unfair and not at all transparent. Further, it was having adverse consequences in sectors that were not in any way benefiting from the ‘other reforms’ which had been introduced by DIBP e.g. streamlined visa processing which only applied to the university sector.”

In my view, based on my own practice and research, the main issues concerning the integrity of the GTE criteria assessment and the effectiveness of the GTE introduction are the following:

1.      The Ambiguity which causing a massive caseload before the AAT and the Courts. 

2.      Potentiality of the FRAUD PIC 4020 Issue

There is a concern that the current GTE assessment policy is encouraging the applicants to provide false and misleading information about their future intentions in their “GTE Statements” that are mandatory requirement to be supplied at the time of the Student Visa application.

Unfortunately, if a prospective student indicates in their GTE Statement that he or she has an intention to apply for a further visa after completing their studies if they are eligible to do so, the most likely outcome of their Student Visa application would be an obvious refusal. So far there were no successful appeals known since the Minister has overturned the decision made by the Justice Manousaridis’s decision in Khanna:

Links: http://www.austlii.edu.au/au/cases/cth/FCCA/2015/1971.html | http://www.austlii.edu.au/au/cases/cth/FCA/2016/142.html | 

3.      Subjectivenessof the GTE assessment. Unfortunately, the offshore Student Visa applicants have no review rights access which gives the decision makers almost unlimited power to exercise the discretion when assessing the GTE criteria.

Migration Alliance submits that the Department of Home Affairs must take an appropriate steps to ensure that:

1. There is more transparency of the GTE criteria assessment provided to the public, e.g.  the country information such as statistics of non-returns to be published
2. The unevenness and subjectiveness of the GTE criteria assessment is minimized
3. The applicant’s intention to apply for a further visa in the future, subject to eligibility to do so, should not affect meeting the GTE criteria.