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….
In Saini v Minister for Immigration and Border Protection [2016] FCA 858 (29 July 2016) Judge Logan held that a genuine temporary entrant requirement is: 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
That is 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 that is the currently law however there is also another relevant case that should be noted
Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971 (20 July 2015)
In Khanna 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.
If you or anyone you know is about to lodge a STUDENT VISA or has had a visa refused on GTE grounds please speak to one of the lawyers at our office for thorough advice on your options.
Call 03 9614 0218 or email info@arlaw.com.au
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Note: this update, or any previous updates on this page, do not constitute legal advice and should not be relied upon as such. Please call our office to seek professional advice before acting or relying on any of the content on this page
