as posted in the locked forum of Migration Alliance by Daniel Chang

Since its introduction in 2011 I’ve been involved in our office’s drafting of many temporary visas – a lot of them were eventually refused on the GTE (Ministerial Direction No 53 under s499).

Whenever I read such a Decision Record, I can’t shake the feeling that the delegate had a premeditated intention to refuse, and chose to misinterpret the GTE as an excuse for refusal.

The intention behind the GTE is to identify and deflect applicants who may have ulterior motives.

Temporary visas pose two potential risks to Australia’s immigration policy: the first and obvious risk is an applicant who is suspected of becoming unlawful either by breaking a visa condition or by overstaying.

The other potential risk is a candidate for an offshore permanent visa, who used a temporary visa to bypass the constraint of having to wait for the decision offshore. Plausibly, many offshore applicants (for partner and other permanent visas) end up falling short for a visa grant, and it’s in Australia’s interest to keep them waiting offshore until the Minister was satisfied the appropriate permanent visa could be granted to them.

This all makes sense, and the purpose of the GTE is to ensure those two major risks can be validly ruled out. Delegates are therefore required to consider:

1. The applicant’s circumstances in their home country
2. The applicant’s potential circumstances in Australia
3. The value of the course to the applicant’s future
4. The applicant’s immigration history
5. If the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant
6. Other relevant matters.

And the most common misinterpretations of the above, leading to visa refusals, are:

 

1. The applicant’s economic circumstances in their home country

Incorrect (and often used by case officers):

  • Is the standard of living in the applicant’s home country below that of Australia? Then just refuse.

Don’t just compare the two countries because once the applicant overstayed, as an unlawful non-citizen without work right, their economic outlook would become substantially worse.
The correct question should be: is the applicant likely to be better off financially in Australia even as an unlawful non-citizen, than returning to their home country?

Correct:

  • Is the applicant from a country where they live on $1-2 a day? If so, he/she might choose to overstay unlawfully, because he/she can potentially live better here even as a homeless person.

 

2. The applicant’s potential family circumstances in Australia

Incorrect (and often used by case officers):

  • Does the applicant have close family members in Australia? Then just refuse.

If the applicant has an Australian citizen brother and you thought that provided incentive to stay – sure but only if staying lawfully. Family is only an incentive to stay if we assume the applicant wants to stay in touch with them. Therefore, if the applicant overstayed they could be located with minimal effort just by monitoring the family.

Should the applicant overstay and NOT stay in touch with family, then Australian ties were NOT a factor for staying in Australia (unlawfully). In every other case: yes, the applicant may have an intention to later apply for an applicable permanent visa, and if they satisfied such visa’s criteria then Australia indeed wants them here and there’s no reason to weed them out by the GTE beforehand.

We even had a case, where the case officer refused the subsequent student visa of the primary applicant, just because her family unit were also here with her as secondary holders of her student visa! How is that an incentive to stay in Australia? How can the secondary visa holder temporary residents provide any incentive or grounds to stay?

Correct:

  • Does the applicant have Australian family members, who may provide grounds for making an onshore application? For example: is the 68-year-old student visa applicant just pretending to want to study, so that once onshore he can lodge an aged parent visa from here, and not have to wait 30 years for offshore processing?

 

3. The value of the course to the applicant’s future as opposed to doing the course at home

Incorrect (and often used by case officers):

  • Is the course available in the applicant’s home country? If so, just refuse.

In reality, having an Australian degree has a lot of weight in the world – certainly sounds better than having one from Bangladesh or from Romania. It is absolutely natural, that adventurous people are keen to obtain a degree from this prestigious country, and there’s no shame in having fun with surf and beach at the same time. Sure, you can get a similar degree in Turkey, but then try and get a job in the UK with such degree.

Furthermore, this question should absolutely never come up in relation to an ELICOS visa because wanting to study English in a native language environment is such an obvious reason you don’t need to test it.

Correct:

  • Is the applicant a highly qualified electric engineer now enrolled into an Australian Certificate 3 of Cookery? That sounds like an unusual career change and worthy of further consideration/investigation.

 

4. The applicant’s adverse immigration history

Incorrect (and often used by case officers):

  • Do I suspect that the applicant made his/her initial visitor visa application with the intent that they would later lodge a student visa onshore? If so, use this un-tested and non-adverse suspicion to justify refusal.

Correct:

  • The only negative factor is if the applicant ever overstayed a visa or broke conditions.
  • On the other hand, if the applicant previously held a visa to Australia and complied with all its conditions – that should count as a positive.

 

We have lodged several complaints over the years to DIBP with no response or action and BELAW currently has a related case before the AAT-MRD.

We will continue the fight to weed out habitual unfairness and misinterpretation of migration legislation.