Ministerial Direction No. 108, effective 23 March 2024, offers a framework for assessing the Genuine Temporary Entrant (GTE) criterion for Student and Student Guardian visa applications under section 499 of the Migration Act. This direction provides a detailed approach for evaluating applicants’ intentions and ensuring that they meet the GTE requirement.
Daman, with his extensive experience as an immigration lawyer and Migration Coordinator at Kris Ahn Lawyers, provides the following analysis.
Key Considerations Under Ministerial Direction 108
1. Applicant’s Circumstances in Home Country:
- Economic and Political Conditions: Evaluates the applicant’s financial situation and any political or civil unrest in their home country.
- Personal Ties: Assesses the extent of personal connections to the home country, such as family and social ties.
- Study Options: Considers whether similar courses are available in the applicant’s home country and the reasons for choosing to study abroad.
- Military Service: Takes into account any mandatory military service commitments that may incentivize the applicant not to return to their home country.
2. Applicant’s Potential Circumstances in Australia:
- Ties to Australia: Reviews any existing ties to Australia that may encourage the applicant to stay beyond their visa term.
- Use of Student Visa: Ensures the student visa is not being used to circumvent the intentions of the migration program or maintain permanent residence.
- Knowledge of Australian Life: Considers the applicant’s understanding of living in Australia.
- Relationships of Concern: Examines if there are any relationships that might raise concerns about the applicant’s intentions.
3. Value of the Course to the Applicant’s Future:
- Relevance to Education and Career: Assesses whether the chosen course aligns with the applicant’s current education level and career goals.
- Employment Opportunities: Evaluates the potential for employment in the applicant’s home country or third countries, including expected remuneration and career prospects.
4. Applicant’s Immigration History:
- Visa and Travel History: Includes a review of the applicant’s previous visa applications and travel history to Australia and other countries.
- Previous Visa Applications: Takes into account any past visa refusals or cancellations in Australia or other countries.
5. Minors:
- Parental Intentions: Considers the intentions of a parent, legal guardian, or spouse when the applicant is a minor.
6. Other Relevant Factors:
- Any other matters that may influence the decision regarding the applicant’s intention to stay temporarily in Australia.
These factors are not exhaustive checklists but guidelines for decision-makers to holistically evaluate the applicant’s situation and determine whether they satisfy the GTE criterion, as stipulated in clause 500.212 and Ministerial Direction No. 108.
Impact on Educational Institutions and Student Applications
In line with the new regulations, the Australian government has reduced the number of international student places from 510,000 to 250,000 until June 2025. A three-tier system has also been introduced to evaluate whether universities admit students who meet the new genuine student test. This system has led to stricter admission criteria and more rigorous application assessments.
University Policies:
- Many universities have adopted stringent policies regarding the enrollment of international students, particularly from countries like India and Nepal, due to trends of students changing courses or institutions after arrival.
- Some universities have cancelled offers and Confirmation of Enrolment (COE) letters for students due to visa refusals.
- There is an increasing reluctance to enroll offshore students or accept applications from individuals who have had visa refusals in countries like Canada, New Zealand, Ireland, or the United Kingdom.
- Universities often require upfront payment of one-year tuition fees for enrollment.
Differences Between Onshore and Offshore Students:
- Onshore Students: International students already holding a current Australian visa and present in Australia at the time of enrollment.
- Offshore Students: Applicants residing outside Australia at the time of visa and enrollment application.
Recent AAT Cases and Future Insights
Recent cases brought before the Administrative Appeals Tribunal (AAT) reflect the implications of MD 108. We plan to discuss these cases in a subsequent article, providing more detailed insights into how these changes affect international student applications and the overall landscape of Australian immigration.
This comprehensive overview of Ministerial Direction 108 underscores the importance of understanding the nuances of the GTE criterion and its impact on student visa applications. Prospective students and educational institutions must remain informed and adhere to these guidelines to navigate the changing landscape of Australian immigration policies effectively.
Disclaimer: Not Legal Advice
The information provided in this blog post/article is for general informational purposes only. It does not constitute legal advice or create a representative-client relationship. While we strive to provide accurate and up-to-date information, the content may not reflect the most current legal developments or specific circumstances.
Do not rely solely on the information presented here – but please book in a consultation with us to see how you this information applies to you and may benefit you. Any reliance on the material in this post is at your own risk.
Australian immigration law is arguably one of the most complex laws in Australia. Seek professional legal advice tailored to your individual needs before making any decisions based on the content of this post.
