Genuine Temporary Entrant criteria-some thoughts on Inderjit v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs.
This is a recent case which was decided in the Federal Court in December 2019.
Ms Inderjit lodged an application for a subclass 500 Student visa in August 2016. In November 2016 the delegate of the Minister refused the application. The reason for the refusal was that the delegate did not believe that Ms Inderjit intended to stay in Australia on a “temporary basis” as required by clause 500.212 of the Migration Regulations.
The case was heard in the Administrative Appeals Tribunal and in February 2018 the AAT affirmed the decision of the delegate.
In the Federal Court the Judges discussed the cases of Saini v MIBP, Saini v MIBP and Khanna v MIBP.
In over-simplified terms, the Judge in Saini  said that if a person who applied for a Student visa had an intention to, at a later time, apply for a visa to remain permanently in Australia then that person did not have the intention to only come to Australia on a temporary basis and therefore did not meet the Genuine Temporary Entrant criteria (GTE) and the application for a Student visa should be refused.
In over-simplified terms, the Judge in Khanna’s case said that if a person applied for a Student visa but also considered applying through lawful means at a later stage for a visa to remain in Australia on a permanent basis, then that intention to apply for a permanent visa if the opportunity arose at a later stage, did not prevent the person from getting a Student visa.
In Saini v MIBP[2016} the Appeal Judge agreed with the original Judge in Saini and expressly disagreed with the opinion of the Judge in Khanna v MIBP.
The three Judges in Inderjit’s case have held that the decision of Judge Logan, the Judge in Saini 2016, is the correct interpretation of the law, setting out the test which a decision-maker must apply as:
“That means that, after the time of decision, there is potential for an intention to change, depending on later circumstances. It also means it is possible for there to be, at the time of decision, an intention to seek some further visa which will nonetheless lead to nothing more than further temporary residence. But if there is a settled intention, at the time of the decision, later to seek a visa that will lead to other than to temporary residence, that intention is not consistent with an intention “genuinely to stay in Australia temporarily”. What is required is an evaluation by the decision-maker of intention as at the time of decision.
We do not understand Logan J to have held that the existence of a settled intention, at the time of the decision, later to seek a visa that will lead to other than to temporary residence as necessarily negating any capacity of the decision-maker to find that the applicant for a visa genuinely intended to remain in Australia temporarily. Rather, his Honour stated that the existence of that settled intention was “not consistent” with an intention to “genuinely to stay in Australia temporarily.”
Ordinarily, that lack of consistency may be expected to lead a decision-maker to examine closely whether its presence should result in the decision-maker not being able to form the requisite state of satisfaction justifying the grant of the visa. But as we read Logan J’s reasons, he did not hold that the decision-maker had to decide that the existence of the settled intention, at the time of the decision, if the opportunity to do so arose, later to seek a visa which would lead to other than temporary residence, necessarily negated the entitlement to seek a visa.”
As the above three paragraphs demonstrate, Australian Immigration law is complex and complicated. It is always a good decision to get professional advice from a qualified Legal Practitioner or Registered Migration Agent.
If you come to Australia and want to study for a Diploma and then an Advanced Diploma or study for a bachelor degree followed by a post-graduate qualification and then return to your home country, you should have no problem.
A potential problem arises if you come to Australia and you are intending to study and then seek a pathway to permanent residence in Australia. In those circumstances, professional advice and assistance with your application(s) would be time and money well spent.
We have a dedicated, professional team at Red Earth Migration who are committed to giving you the best and most cost-efficient advice and assistance to help you find your way through an often difficult and confusing legal process.