Federal Court (Full Court): If a student visa applicant intends to pursue PR if the opportunity presents itself, decision-makers are allowed to take that intention into consideration in assessing whether the applicant is a Genuine Temporary Entrant (GTE) under cl 500.212. That intention may be expected to normally lead to the conclusion that the applicant is not a GTE. However, such an intention does not necessarily lead to that conclusion. We explain how practitioners can use this decision to argue that a student visa applicant can be a GTE despite also seeking PR. Arguably, the same principle could apply to visitor visa applicants who also seek PR.
The Full Court of the Federal Court (FCAFC) summarised the facts of this case as follows:
3 The appellants are husband and wife. Between 2007 and 2009, the husband had a student visa. The wife arrived in Australia in 2009. From 2009 to 2012, the wife had a student visa with her (now) husband as a secondary applicant. From 2012 to 2016, the husband had a subclass 457 temporary skilled visa (the 457 visa) with his wife as the secondary applicant to that visa.
4 On 23 August 2016 the wife applied for a student visa with her husband as the secondary applicant. On 15 November 2016, the Minister’s delegate refused that application.
Clause 500.212 relevantly read 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, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor -- the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
...
The Tribunal affirmed the delegate's decision and the Appellant then applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision.
The FCCA dismissed that application and the Appellant eventually appealed the FCCA's decision to the FCAFC, the questions to which were as follows:
Question 1: If a student visa applicant also intends to pursue permanent residence in Australia if the opportunity presents itself, are decision-makers allowed to take that intention into consideration in assessing whether the applicant is a Genuine Temporary Entrant (GTE) under cl 500.212 of the Migration Regulations 1994 (Cth)?
Question 2: If the answer to Question 1 is "yes", may that intention normally be expected to lead to the conclusion that the applicant is not a GTE?
Question 3: If the answer to Question 2 is "yes", does that intention necessarily lead to that conclusion?
Question 4: How can practitioners use this decision to argue that a student visa applicant is a GTE despite also seeking PR?
The FCA answered those questions as follows: