Establishing genuine temporary entrant despite a pending application for a permanent visa
It is a grant criterion of many temporary Australian visas that the visa applicant demonstrate that they genuinely intend to remain in Australia temporarily (‘GTE’). It would seem that having a pending application for a permanent visa would directly contradict such a genuine intention but that is not always the case.
Can you meet the GTE requirement with a pending permanent visa application?
The Applicant applied for a Temporary Work (Long Stay Activity) (subclass 401) visa (‘SC 401 visa’) in the Religious Worker stream. This visa stream allows for the temporary entry of persons who will be performing full-time religious work in Australia. The Applicant was working as a monk in Victoria at the time of the application.
However, his visa application was refused by the delegate of the Minister due to the fact that he could not meet the GTE requirement for the SC 401 visa.
The Applicant had a pending application for an Employer Nomination Scheme (Subclass 186) visa ("‘SC 186 visa’) at the time of making the application for the SC 401 visa. His Migration Agent had mistakenly thought that he would be eligible for a bridging visa in relation to this application, which is why he had to apply for the SC 401 visa.
How is the GTE requirement assessed?
The GTE requirements is assessed by considering the following:
Whether the applicant has complied substantially with the conditions of their last substantive visa and any subsequent bridging visas.
Whether the applicant intends to comply with the conditions of the SC 401 visa.
Any other relevant matters, including whether the visa was being used to circumvent proper migration channels.
What considerations were relied on to establish the Applicant as a genuine temporary entrant?
The court remitted the decision to the AAT with the direction that the Applicant met GTE requirements. In coming to this decision, the court considered the following:
He had complied with the conditions of his previous visas.
He was considered to be an honest and credible witness and it was accepted that he intended to comply with future visa conditions.
He was not attempting to use the application to circumvent proper migration channels - rather he was attempting to following migration laws by avoiding remaining in Australia unlawfully while he waited for a decision on his SC 186 visa.
The fact of that attempted application alone is insufficient to demonstrate that the applicant does not genuinely intend to stay temporarily in Australia to carry out Religious worker activities. It is clear from the evidence that the applicant’s only intention is to follow the wishes of his community in respect of his stay in Australia, subject to Australian law.
Due to his deference to his community’s needs, the situation in his home country of Myanmar was not a motivating factor for him in decisions about where he resides.
There was a genuine need for the applicant’s skills and experience in his community and the position has not been created to secure his stay in Australia.
His personal attributes and background confirm his dedication and highly effective conduct in his role as a Religious Worker.
Departmental policy specifically contemplated an application for another visa while the applicant is on a SC 401 visa.
How Can Agape Henry Crux Help You.
Your non-revocation decision may be affected by the same error. If you want to find out more about your eligibility or need advice on your Australian migration matter, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.
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