The recent changes, which came into effect on 1 July 2016, were labelled as “the simplified student visa framework” (SSVF). The new framework is said to provide a more efficient and targeted process for genuine students (with genuineness now being a key criterion).
The new developments consolidated the numerous student visa subclasses into one main subclass (subclass 500). The student guardian (subclass 590) visa remained, along with the temporary graduate (subclass 485) visa and student visa specifically for subsequent entrants.
Under the old structure, students were given different levels of “assessment” (levels 1 to 3), which were based on their country of nationality and passport. Certain countries, especially those that were affected by political and economic issues and civil unrest, were labelled as a level 3 assessment. This in turn impacted the means by which the application was submitted and – unfortunately – the possibility of being granted the visa. However, after the recent changes, all applicants, notwithstanding their nationality or passport, are required to lodge an online application without being designated an assessment level.
Although, at first glance, it seems that the framework has been simplified, the threshold that needs to be met before the visa is granted has heightened significantly. The genuine temporary entry (“GTE”) requirement must be deemed to be met in order for a visa to be granted. This requirement states that an applicant must, at the time of application, have the intention of returning to their home country after the completion of their studies in Australia.
While the GTE requirement has always formed one of the considerations for case officers to assess, it is now weighted more heavily. This appears to have come about from the considerable number of applicants who applied for a student visa – or multiple student visas – in an attempt to circumvent the requirements of permanent visa applications.
It seems that the main concern is for students who genuinely wish to undertake further study in Australia after successfully completing the initial course they applied for at the time of making their application. The Department’s website provides an assurance, to some degree, by indicating that the ‘requirement is not designed to exclude students who, after studying in Australia, go on to develop the skills required by the Australian labour market and apply to become permanent residents.’ This suggests that having plans to study further will not, on its own, negate the GTE requirement.
However, to date, there have been myriad cases grappling with GTE, which is indicative of the vagueness and ambiguity surrounding the requirement. Many decisions made over the past year have left questions unanswered.
In Khanna v Minister for Immigration and Border Protection, which was overturned in 2016, it was held that ‘a person who intends to stay permanently in Australia, if qualified to do so, does not by itself imply the person does not intend to stay in Australia temporarily’. However, following the appeal in Minister for Immigration and Border Protection v Khanna, the decision of Manousaridis J was overturned due to jurisdictional error. Nonetheless, the decision of the appeal court failed to consider whether the applicant’s intention in wanting to stay for further studies affected the GTE requirement. It appears that an outcome was effectively never reached, however the court did note that it is important for the decision-maker, at the time of making the decision, to question the applicant’s further intentions provided he or she is not granted a subsequent visa for studies or employment in the foreseeable future.
In Saini & Anor v Minister for Immigration and Border Protection, the contrary was established, whereby the court held that if ‘at the time of the decision, the decision-maker is satisfied that the applicant’s intention is not to stay in Australia temporarily, the [GTE] criterion will not be met.’ The court went on and provided a brief outline for what “intends genuinely to stay in Australia temporarily” meant and stated that they are ‘concerned with how long the visa applicant intends to stay in Australia and nothing else.’ In essence the court strongly viewed that any intention by the applicant towards seeking further studies or employment is contrary to the GTE requirement. However, as the court concluded, it distinguished between mere hope and the intention to further stay. It noted that mere hope, at the time of the decision being made, such as the hope ‘to undertake post-graduate study if successful in respect of the study’, may allow the case officer to conclude that the visa applicant does still – at the time – have the genuine intention to stay in Australia temporarily.
In Mandeep Singh Bajwa v Minister for Immigration and Border Protection, it was held that ‘an applicant for a student visa needs to be a genuine temporary entrant and not someone who is using the system to remain in Australia indefinitely.’
In light of these cases, we are left with no substantial leads – merely guidance – as to how an applicant ought to approach the student visa criterion. What should an applicant indicate in their student visa application? Should he or she state that they wish to further study or remain silent in such respect? Should he or she expressly state that they wish to return to their home country after the conclusion of their studies?
The position will, for the time being, remain unclear and is subject to the allocated assessing case officer’s discretion, which is merely ensuring that students being granted such visas have the genuine intention to only reside in Australia for the duration of their studies. Following these decisions, it appears that the suggestion of such an intention in an application would be unsafe, despite the fact that many previous students have been granted a student visa and subsequently applied for further study. The requirement seems not only arbitrary, but it also undermines the availability of other visa applications, which would allow students to continue studying or undertake employment in Australia subsequent to the conclusion of their studies.
