Australian Immigration Daily News

Do you ever handle student visa applications?

If you do, then you need to know about the recent decision of the Full Court in the case of Inderjit v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) FCAFC 217.

This decision addressed an important question involving the Genuine Temporary Entrant criterion:

Is it possible for an applicant to satisfy the GTE if they have a subjective intention to seek permanent residency in Australia at some point in the future, if a migration pathway providing for that outcome should become available?

This is a question that was significantly litigated in the Federal Courts back in 2015, and there was a division of opinion at the Federal Circuit Court level, with one judge (Judge Manousaridis) taking the view that such an intention would not prevent a finding that the GTE was satisfied (see Khanna v Minister for Immigration and Border Protection (2015) FCCA 1971) while a second judge, Judge Cameron, took the opposite view, in Saini v Minister for Immigration and Border Protection (2015) FCCA 2379.

The question was seemingly settled when the Saini case was heard on appeal in the Federal Court by Justice Logan.  On appeal, Justice Logan held that having a "settled intention" to seek a further visa would be inconsistent with being a genuine temporary entrant.

This is where the recent decision of the Full Court in Inderjit is really consequential:

In Inderjit, the Full Court held that it did not consider that Justice Logan's holding in Saini would necessarily prevent an applicant from satisfying the GTE even if they do have a settled intention to try to seek permanent residency at some time in the future.

In other words, the significance of the Full Court's decision in Inderjit is that even if an applicant for a student visa has a settled intention to seek permanent residency if possible, having that intention will not necessarily and definitively prevent an applicant from satisfying the GTE and obtaining a student visa.

Even though we're getting really close to the holiday season (!!) important decisions are still coming out of the courts!

And if it is important to your work to stay up to date with interpretations of the migration legislation that is coming out of the courts, please consider having a look at (and subscribing to!) The Migration Messenger, where you will get ongoing updates. It's just a click away!