What is the correct interpretation of the “genuine temporary entrant” criterion for student visas?

Can an applicant have a “subjective” intention or “wish” to remain in Australia following the completion of their studies if a further visa pathway becomes available, and still be considered a genuine temporary entrant for the purpose of a student visa?

Or is it the case that having such an intention or wish is inconsistent or incompatible with being a genuine temporary entrant?

Followers of this blog may recall that there have been conflicting decisions on this question from the Federal Circuit Court.

In Khanna & Ors v Minister for Immigration & Anor (2015) FCCA 1971, Justice Manousaridis held that there is no inherent inconsistency with an applicant for a student visa having a desire to remain in Australia if a further pathway presents itself.

And in Singh v Minister for Immigration & Anor (2015) FCCA 2441 Justice McGuire agreed with Justice Manousaridis’s interpretation.

However, in Saini & Anor v Minister for Immigration (20015), Justice Cameron declined to accept that interpretation, and held that an applicant must have an unqualified intention to remain in Australia only temporarily and may not hold (or at least may not state openly!) that they have a desire to stay in Australia if a further pathway should present itself.

Evidently, the Department did not like Justice Manousaridis’s decision in Khanna.

The Department (Minister) appealed that decision to the Federal Court.

And in a decision that was handed down on 26 February 2016, Justice Reeves of the Federal Court found that Justice Manousaridis had been in error when he found that the Tribunal’s decision in Khanna was infected by jurisdictional error. See: Minister for Immigration and Border Protection v Khanna (2016) FCA 142.

However, and importantly, Justice Reeves did not address the question of whether the holding in Khanna concerning the interpretation of the genuine temporary entrant requirement was “right or wrong”.

The issue simply was not reached.

So in the wake of the decision from the Federal Court in Khanna, the issue of how the genuine temporary entrant requirement remains “unsettled”.

How then was the Minister’s appeal to the Federal Court in Khanna resolved then?

In essence, Justice Reeves concluded that the Tribunal had not committed jurisdictional error by “asking itself the wrong question”. In this regard, Justice Reeves declined to accept Justice aManousaridis’s view that it was necessary for the Tribunal to determine what the applicant’s intentions are if she/he does not get a further visa allowing him/her to remain in Australia at the conclusion of her/his studies.

It has been Justice Manousardis’s view that it is necessary to determine the applicant’s intentions for the post-study period, and that if an applicant says that they would remain in Australia even if they do not get a further visa, then they could not be considered to be a genuine temporary entrant. But on the other hand, if the applicant were to declare that she/he would plan to “go home” if they did not get another visa allowing further stay, then that evidence would support a conclusion that the applicant was in fact a “genuine temporary entrant”.

As mentioned above, Justice Reeves did not directly address or answer the question of whether a person who holds a subjective wish to remain in Australia could be considered to be a genuine temporary entrant. All that Justice Reeves said about this issue was that, quote:

“even if the Tribunal had made an erroneous interpretation of cl 573.222, it is to be doubted whether that error would amount to a jurisdictional error”.

So, it is perhaps “implicit” in what Justice Reeves said that the genuine temporary entrant criterion is to be interpreted as meaning that an applicant cannot hold a subjective wish to remain if a further visa pathway becomes available.

However, it is really important to keep in mind that Justice Reeves also stated in his judgment that it was not necessary to consider the submissions advanced by Ms Khanna that the genuine temporary entrant requirement does not prevent an applicant from holding a wish to remain in Australia if further visa options present themselves.

How then, did Justice Reeves resolve this case? His Honour took the view that the Tribunal had properly considered whether Ms Khanna was a genuine temporary entrant by having regard not only to the question whether Ms Khanna had stated that she wished to settle in Australia in the long term if given the opportunity, but also 3 other factors, namely:

Her immigration history since arriving in Australia which showed that she had spent only a limited amount of time outside Australia since first arriving on a student visa in 2009;
The fact that she did not have a current confirmation of enrolment for a course of study at the time of the Tribunal hearing; and
The fact that the Tribunal considered that the evidence of the value of her proposed further study in Australia for her long-term future was “limited and unconvincing”
What conclusions can then be drawn from this case?

First, that Justice Reeves was satisfied that the Tribunal had not committed jurisdictional error. It had, in Justice Reeves’s opinion, actually asked itself the correct question, which was whether Ms Khanna should be considered to be a genuine temporary entrant.

Second, it remains unclear whether a stated intention to remain in Australia if a further pathway becomes available will disqualify an applicant for a student visa from being classified as a genuine temporary entrant.

Since the Department brought this appeal against Justice Manousaridis’s decision, one can read between the lines and see that the Department evidently considers that having such a subjective wish is not consistent with being a genuine temporary entrant.

And thus it seems like it will be “risky” or “dangerous” for an applicant to openly say that they do have such a wish!

And this is so even though there are undoubtedly tens of thousands, if not hundreds of thousands, of students who have gotten further visas and have ultimately become Australian citizens.

Doesn’t it seem to make total sense that Australia would want to retain the skills, talent and ambition of foreign nationals who have studied here? And if the Department does not want students to remain in Australia, then why not make it a criterion for further visas such as 485, 489, 457, 186, 189 and 190 – anything else in the GSM stream – that the applicant not have held a student visa?

Something here is still not adding up (in my opinion!)

What do you think?

Courtesy of Migration Alliance