A GTE is a student visa applicant whose circumstances support a genuine intention to enter and remain in Australia temporarily, notwithstanding the potential for this intention to change over time to an intention to remain in Australia for an extended period or permanently.
The decision maker must be satisfied that the applicant genuinely intends a temporary stay in Australia, having regard to the applicant’s circumstances, the applicant’s immigration history and any other relevant matter – refer to clause 500.212(a).
An applicant who does not satisfy the decision maker that they are a genuine temporary entrant cannot satisfy Schedule 2 criteria for grant of a student visa and the visa must be refused.
An applicant who does not satisfy the decision maker that they are a genuine temporary entrant cannot satisfy Schedule 2 criteria for grant of a student visa and the visa must be refused.
Decision makers may refuse a visa on one of the other requirements if there is clear evidence up front that the applicant intends to reside temporarily but does not plan to attend an education course – for example, ‘intention to comply’ if the applicant intends to work.
Decision records must clearly show the decision maker’s thinking and how they formed their judgement based on the information and evidence before them.
The GTE section 499 direction
The ministerial section 499 Direction Assessing the genuine temporary entrant criterion for student visa and student guardian visa applications (the GTE s499 direction) gives officers guidance on the six factors that must be taken into account when assessing the genuine temporary entrant criterion for student visa applications – in the GTE s499 direction, refer to:
- the applicant’s circumstances in their home country
- the applicant’s potential circumstances in Australia
- the value of the course to the applicant’s future
- the applicant’s immigration history
- if the applicant is a minor – the intentions of a parent, legal guardian or spouse/de facto partner of the applicant
- other relevant matters.
Although all factors in the direction must be considered, it is not to be used as a checklist; decision makers must use their judgement to weigh all the circumstances to make a determination as to whether the applicant is a genuine temporary entrant.
Decision makers are bound by the direction and must refer to it in assessing a student visa application.
Dinesh Weerakkody LLB; PDLP
Barrister & Solicitor (An Australian Legal Practitioner)
An Australian Migration Lawyer (Former MARA# 0742843)
Former Lecturer │ Unit Convenor │ Swinburne University Law School
Academic in Law│ Deakin University
President – LawHelp Australia
Former Treasurer – Eastern Suburbs Law Association (ESLA) of LIV
Law Institute Migration Law Committee – Member
Executive producer: CH31 TV LawHelp programme