Genuine Temporary Entrant


 

Genuine Temporary Entrant
By Lorenzo Boccabella, BA, LLB, a specialist in migration law (20 August 2020)

This issue plagues the student visa regime, and other temporary visa applicants like temporary work visas and temporary visitor visas. In this decision discussed below, the court emphasised that a holistic approach needs to be taken to the concept rather than atomising each clause in the regulation.

Allsop CJ in Eros v Minister for Immigration [2020] FCA 1061 has therefore given some clarity to this issue.

His Honour gave some refreshing emphasis that a regulation needs to be looked at in total. The relevant regulations in the student visa regime start with these words.

500.212 The applicant is a genuine applicant for entry and stay as a student because….

In legal terms this is often referred to as the is the chapeau (literally translated from French as ‘hat’) and is the introduction to a statute that broadly sets out its principles. The chapeau therefore has some work to do in how a statute is interpreted. Often in migration law, the Minister will attempt to atomise each line of a regulation in an attempt to how that a particular provision was not complied with. But the chapeau often gives guidance as to how a provision ought to be interpreted. In this context Allsop CJ stated:

8….First, the chapeau contains a whole idea or conception: “a genuine applicant for entry and stay as a student”.  This expresses a criterion that will involve value judgments about the applicant and his or her genuineness to enter and stay as a student.  The last, emphasised, words…should not be disconnected from the text, structure and purpose of the whole clause.

Clause 500.211 goes on to say:

(a)    the applicant intends genuinely to stay in Australia temporarily, having regard to:

The clause then went on to list a number of factors. In this regard Allsop CJ stated:

13….The proper approach to the application of the clause requires an appreciation of the relationship between the disaggregated elements of cl 500.212 in subcll (a), (b) and (c), and the whole question requiring evaluation in the chapeau.  There are many considerations that may be relevant to assessing whether someone is genuine in his or her intention to stay temporarily for subcl (a) or whether he or she is a genuine applicant for entry and stay as a student for the chapeau to cl 500.212. 

14…. These three considerations all feed in to form an evaluative judgment about whether the person is a genuine applicant for entry and stay as a student

The multi-factors that clause 500.211 brings into focus are:

500.212

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

(b)        the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

(i)         the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

(ii)        the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

(c)        of any other relevant matter

Allsop CJ added

15.The clarity of structure of disaggregated elements to inform one overall evaluation demands separate attention to each element so that appropriate attention is given to relevant considerations, and so that appropriate focus is given to the relevant considerations.

20…. But the Tribunal made no finding that she did not genuinely intend to stay as a student.  To do so it would have had to grapple with the apparent genuineness of Ms Eros in undertaking the courses, even if they were a way she would be able to remain in Australia.

The word ‘grapple’ here is particularly relevant, being emblematic of what the AAT is required to do. It failed to do so here.

Rather than focusing on whole of clause 500.212, the AAT here focused just on the question of ‘intends genuinely to stay in Australia temporarily’. Instead is asked itself the wrong question rather that looking as whole as to whether “applicant is a genuine applicant for entry and stay as a student”.

Eros was a case where the applicant had multi-purpose reasons for coming to Australia. The student visa applicant here was a relatively well off middle-aged woman and her catalyst for wanting to be in Australia was that her daughter was studying in Australia and would soon qualify for a two year visa work visa. The applicant wanted to study English and was genuinely involved in courses of that kind and planned to stay for the two years her daughter would have a visa. In this context Allsop CJ stated:

21… On any view that is a temporary stay, by reference to the accepted meaning of the word “temporary”….

In the end the tribunal had focused solely on the applicant’s motivation for being in Australia, (which was the presence of her daughter) but failed to make a determination, one way or the other as to whether the applicant was a genuine student.

The tribunal had expressed ‘concern’  that the applicant was attempting to use the student visa program as a means of maintaining residence in Australia but the Court noted:

22…..The concern…is not a finding.  It is an expression of a concern. 

It is refreshing that a holistic approach was taken to the term ‘temporary’. This case will assist in unshackling what is sometimes seen as an unnecessarily narrow approach to temporary visa applicants. Even the Minister’s own direction notes that a visa holder’s intention has “the potential for this intention to change over time to an intention to utilise lawful means to remain in Australia for an extended period of time or permanently.”! (See Ministerial Direction No 69).

The court also looked at what temporary means. The court stated:

21…the accepted meaning of the word “temporary” referred to by Wilcox J in the context of construing the phrase “temporarily absent from Australia” in Hafza v Director-General of Social Security [1985] FCA 201; 6 FCR 444 at 451, applied by Logan J in Saini 245 FCR at 243 [19] and [20]:

The Shorter Oxford Dictionary defines “temporary” as “Lasting for a limited time; existing or valid for a time (only); transient; made to supply a passing need”.  The Macquarie Dictionary definition is to similar effect, with the addition of “not permanent”.

I think that the adjective “temporary” was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose.  The purpose might be of a business or professional nature; it might be for a holiday or for compassionate or family reasons.  But, whatever the purpose, it seems to me to be implied in the concept of “temporary” absence that the absence will be relatively short and that its duration will be either defined in advance or be related to the fulfilment of a specific, passing purpose.

Thus a temporary visa applicant should be able to define his or her stay, broadly to a particular date or to the happening of an event or the fulfilment of a purpose.

The approach set out in this article has assistance to temporary work visa holders who have the potential to extend their stay in Australia by applying for a further temporary visa. This does not dilute the fact that the person’s stay is temporary.

The Eros decision is found at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2020/1061.html

Divya Aggarwal