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:
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  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?