Background
On 5 November 2011 the first recommendation of the Knight Review (Strategic Review of the Student Visa Program 2011) came into being – this recommendation was entitled “The Foundation Stone”. In short an applicant for a student visa must now prove to Immigration (DIAC) that they are a ‘genuine temporary entrant’. This seemingly harmless change from the previous requirement to be a ‘genuine student’ also arrived with Ministerial Direction 53 – Assessing the Genuine Temporary Entrant Criterion for Student Visa Applications.
To be complete this change came with a number of other important changes
- Amended English requirements for AL 5 570 (ELICOS) visas for AL4
- Reduced funding requirements for AL4 from 36 to 24 months
- Public interest criterion 4020 applies to all Student visas (more of this in a subsequent post)
Back to the main game; the genuine temporary entrant requirement.
Some background…
- The Federal government has been strongly focused on making changes to the sectors of the education industry that provide services to foreign students, especially the Vocational Sector (572 visas).
- The Federal government has been determined to sever the link between study in Australia and permanent residence.
- A series of policy decisions relating to General Skilled Migration (GSM) – priority processing, especially the Priority 5 classification of many valid GSM applications and more recently the announcement of the new SkillSelect / Expressions of Interest system from 1 July 2012 for prospective GSM has vastly reduced enrolments in the Foreign student market.
- Many Vocational Colleges have closed and many more have become extremely marginal financially.
- The University or Higher Education Sector has suffered a significant drop in enrolments and hence recurrent funding due to these policy settings.
- The University or Higher Education Sector has been lobbying the Federal government very strongly to fix the mess they have intentionally created by targeting the Vocational Sector.
- The Federal government sets up the Knight Review. Chaired by a good Labor man and, surprise, surprise, out pops the above mentioned Foundation Stone recommendation.
Basically what I’m saying if you haven’t caught on yet is that what we have seen delivered up is a) not an independent review of the student visa program and b) that this foundation recommendation fits hand in glove with all the other moves to sequester students from any aspiration to gain residence beyond their study in Australia.
Now I’m not being a conspiracy theorist here – this is straight out Labor government policy in action. All the bits and pieces of a somewhat convoluted puzzle have been progressively moved into place. Add to this the recent announcement that the ATO will be tracking all the people with temporary visas – student, working holiday and temporary worker / 457 etc… to check they are all paying tax (which is totally fair enough) and you can see a Labor and Trade Union push to squeeze out what they see as the cheap migrant worker. None of this has been announced as policy in this light but the combined outcome is unmistakable. Perhaps it’s just all a big coincidence?
I’m going to come back to the title of this post in more detail in a few days (Part 2) but what I’m seeing and hearing and I’m sure this was the intention (as opposed to the stated intention to make the student system better, fairer, bigger etc…) is that Student applicants are being refused in record numbers as “not genuine temporary entrants”. This is a massive subjective decision making process driven by the Minister’s new Direction 53. This document gives a DIAC decision maker the ability to form a view based on almost anything they can possibly imagine or infer that the applicant is not intending to come here, study, graduate and then depart.
Watch this space as I’ll expand on this in the next post. It’s my view that this, more than anything else in Labor policy so far will dramatically change the immigration landscape in Australia.
Dear grant,
Is it making harder process to getting student visa by ” genuine entrant condition due to new regulations.
Manjit
Dear Manjit Yes the hurdle is now higher before you just needed to be a genuine student and your aspirations or actions towards getting PR were OK now you must prove you are only planning to stay for studies and then depart. Sounds harder to me. Also the case officers now have to make totally subjective decision to make using this new Ministerial Direction 53 for assessing what’s ‘genuine’. Grant Williams
We know all about SUBJECTIVE decision making. Ends up being power misused, unfortunately.
Hi Robyn
The system never seems to learn. They introduce new systems that have objective criteria saying that this solves the problems with subjective decision making and then they do the opposite in the next breath and wonder why the system doesn’t work. In truth many people just don’t deal with the responsibility that comes with applying subjective guidelines. This next student one (Direction 53 – sounds like a hidden US army facility) is going to be a disaster from an applicnt’s perspective. Perhaps I’m wrong but the past tends to suggest the opposite.
Grant
Subjectivity is never a good decision making methodology, even in our private lives. Of course, being in love is a purely subjective “thing” but decisions like buying a house, where to send children to school, what job to accept – all those life decisions should never be made subjectively.
Empowering people to make subjective decisions about other people is, in my view, stupid.
hmmm… interesting read.
Don’t get me wrong, it seems that the article is a very grim view on the review, but other news articles seem to be “cheering” (probably cause the Unis ARE cheering) and no mention of the “genuine temporary entrant” portion. Also the “other news articles” also do not mention anything about current Student VISA holders and the link to a PR.
Am i missing something, or is the knight review actually quite” grim “
Dear Josh
Yes I’m concerned. Michael Knight was hardly the impartial choice to run the review to begin with. A good old Labor boy and originnally from the left faction of the party. My next post on this will be about the Minister’s Direction 53 on assessing ‘genuine temporary entrant’ – have a read of the post and go to the link I’ll include to the Ministerial Instrument. Then make up your own mind. I see a world of potential grief here which will make applicants lie about their intentions to DIAC which then opens them up to the new Public Interest Criterion 4020 – another problem. The reality of coming to study in Australia is strongly based in using the qualification to migrate. The Federal government wants that changed. Time and the outcome of many applications will tell I guess. Not many people (some but not many as a % of the total) come here because our education is so wondeful.
Grant Williams
Very interesting … as well as the posts about bridging visas
I’m so confused !
Could you guys clarify my situation? It’s really complex …
Last year, I enrolled in Games Programming, starting the 24th of january 2011 and finishing the 24th of february 2012. When I arrived in Oz, I was told that since I was the only student, the course wouldn’t start but I could do Certificate IV in IT. Last September I completed my certificate and in order to study the same amount of terms than the former course (games programming) I kept going with Diploma in IT (currently doing it)
So, Games programming had 4 terms, same as doing Cert IV + 1 term of Diploma. Here it comes the problem:
Since the starting dates where different, games Pr. finishes in Feb and what I did, finishes the 17th of December 2011 (and to finish that qualification [diploma] I should study 2 more terms)
My visa expires the 24th of April
so … if I drop my course (because even though I studied the same amount of terms, the finish dates are different and … diploma has 2 more terms to go) is my visa gonna be shorten? is it gonna be cancelled?
The plan is in February, (that will be a year since I arrived) apply for a de facto visa because me and my partner have been in a relationship for 2 years but only this year living together (when I arrived in Oz)
I was told that if I drop my course the visa will not be cancelled but I’ll be refused to work and then when I lodge my application I’ll be granted a bridging visa E ….
Additional info: He is Australian, I’m Argentinean
So what should I do?
extend my student visa and keep studying ’til my partner visa is granted?
drop the course because actually I studied the same amount of terms?
I’m really sorry for my long and endless email
I hope you can help me
Thank you very much !
Jess
Dear Jess
I’d just keep studying in your course on your current student visa + prepare and lodge your partner application after your 12 months together. This will result in a Bridging Visa A BVA being granted. This BVA will begin when your TU 572 Student visa expires and it will keep you here legally until your onshore partner 820 visa is granted. If you mess with the studies you can create real problems with your College and the last thing you want is to have your Student visa cancelled. The time left is not long so I’d just keep on and it will all work out OK. If you start a course it’s always good to at least finish it – think ahead!
Grant Williams
Thank you very very very much Grant!!! yes, I’ll do that, I’ve done the Certificate already so why not the diploma?
Immigration just told me that even during my bridging visa (from April) I cannot stop my studies unless the course finishes (June) otherwise I would be dropping the course in which case I need an appointment with the compliance officer…
oughhh want to start working FT … that’s the thing…
Employers really don’t like a “temporary” employee who can only work 20 hr and has nearly no rights
Thank you Grant, I really appreciate your fast response
J
Hi Jess Just one point once your Student visa finishes you can stop studying on the BVA if you wish. DIAC will not do anything and your College cannot do anything as you would no longer have a Student visa. Still best to finish the course though Grant Willams
Oh Grant, that’s really good to know !
Yes, I agree, best to finish the course, at that time it would only be one more term and of course one more qualification.
Thank you very much, honestly I find your advice just awesome
Have a really good afternoon
Kindest Regards
J
Dear Grant,
Your blog is accurate and informative and I think you are very generous with your time and advice – thank you.
My relative (currently offshore and never traveled so far) wants to study here. She is one of those in the category of, as you say “The reality of coming to study in Australia is strongly based in using the qualification to migrate”. She has an MA but I am suggesting to her to study an MPA here because of the job prospects. Obviously there is no guarantee, and if she eventually fails to get PR then she can use the MPA in her country of origin. You seem to be suggesting a hidden agenda to prevent exactly this case, yet in this document http://www.immi.gov.au/students/_pdf/2011-genuine-temporary-entrant.pdf the department are saying “The GTE is not designed to exclude those students who, after studying in Australia, go on to develop the skills required by the Australian labour market and go on to obtain permanent residency.” However, I notice there is no mention of this in Direction No 53. So here is my question: Is simply honestly stating the facts above in a student visa application a realistic strategy or not? If the hidden agenda hypothesis is true then it would seem that honesty and openness are bound to fail? As an Australian citizen it seems to me to be counter productive that we would prevent a student with a strong academic background from coming here and spending $50k on a university course to give themselves the best shot at living here and filling a gap in our workforce skills.
Best Regards,
Kale
Dear Kale
I’m not trying to make everyone paranoid however the Minister’s guidelines for assessing GTE are quite specific. I’m about to put up a new post on Direction 53 – over the weekend. You have a read and then go to the link I’ll include to the Ministerial Instrument and tell me.
If an applicant says I’m coming to study so I can apply for PR after I finish it will be interesting to see how they go. I for one cannot see how someone saying that can claim to be a GTE???
Grant Williams
Hi Grant,
This is a rather grim change in the visa application system! In 2008 I enrolled in a course in Australia and studied for 2 years, but didn’t do well at all (failed lots of units) due to personal circumstances. I decided to withdraw from my course, left Australia and re-entered as a tourist for a couple of months, after which I applied for a working holiday visa. I didn’t stay the length of my working holiday visa (left about 6 months before the visa expired) and have been in New Zealand on a working holiday since then (all this year). I have an Australian partner of two and a half years, and have decided to give university another go, and am planning on applying for a student visa once I get a Confirmation of Enrolment from my uni of choice.
I’m slightly worried that my immigration history will make it seem as though I am not a genuine temporary entrant…although I am. My plan is not to gain permanent residence in Australia, my partner and I plan to move overseas once I finish my studies in Australia. What do you think? Is it likely that my application will be rejected? I find it hard to believe that this could be the case, especially if I am asked to go for an interview and am given the chance to explain my circumstances…
Thanks for your comments!
N
Dear Noggy
I don’t make the rules. They are there for all to see and read and interpret. The test is now GTE.
Direction 53 says and I quote…
“An applicant for a student visa must be refused if, after weighing up the applicants circumstances, immigration history and any other relevant matter, the decision maker is not satisfied that the applicant genuinely intends a temporary stay in Australia.”
In other words you have to convince them of your GTE status.
Grant Williams
Hi GRANT,
RECENTLY my college closed, and a organization come to us said they could f ind us a new college. The fact is I have applied 485 and don’t really want to study any more. If I refused the help from them and dint enroll a new college. does the immigration department will finally managed to target me?
Dear Jo
This depends on how long you ave to run on your Student visa and when DIAC is likely to grant yur 485 visa.
If you only have a short time to either of these then nothing is likely to happen but if your TU visa has a long validity and you’re not anticipating the 485 for many months then you must meet the conditions of your student visa – so that means you must be studying.
Grant Williams
Thanks Grant,
Actually the student visa has one year to go and I have 485 bridging visa A for 1 month, so what do you suggest.
And what happen if Diac come to me and I don’t study. CHEERS
Dear Jo,
You need to either keep studying – my suggestion – or you can apply to voluntarily cancel your Student visa. The latter alternative has quite a few disadvantages which you can read about in an article about this on my blog.
If DIAC find you intentionally not studying they will cancel your student visa. The most likely scenario is that your education provider will report you (Section 20 of ESOS Act – this is mandatory for them to do if you do not attend). If your Student visa is cancelled this will also cancel the BV granted for your 485 application and this will be a world of pain.
Grant Williams
Yes it is the Australian government (and opposition) using international students as a political football, obviously no understanding of Net Overseas Migration statistics (i.e. most are temporary and also includes Australians), now playing pass the parcel on student visas as a result of the Knight Review.
If there is anything humourous out of this will be how universities were firstly breaking out the champagne till they were informed that they would be responsible for compliance, shock horror!
How will they do this? More here:
http://aiecquest.wordpress.com/2012/01/05/australia-knight-review-new-student-visa-system-implementation-2012/
Grant is away see the last post on the Blog
Dear Grant
I applied for a visit visa to australia and i got it refused and now i am planning for a student visa as i want to continue my studies there. Will my visit visa refusal affects my student visa??
Kindly guide me in this regard
Dear Ali
The criterion to get a Visitor visa is – do DIAC consider you are a ‘genuine visitor’
The criterion to get a Student visa is do DIAC consider you are a ‘genuine temporary entrant’
So yes the refusal may effect the student application. I’m not saying it is impossible but you must meet all criteria to get a student visa.
Grant Williams
Hi Grant:
I did aplication for an undergradute visa but I already fail in the vetasses assesment. So , I think that the undergaduate visa will be refused. I that case, can I apply for a student visa to go into the university . Do u think that I will be garanty a student visa again. Actually I’m in a BVA. I’m from Uruguay.
Thanks, Sonia.
Dear Sonia
If DIAC refuse your 485 visa application as you cannot provide a successful skills assessment then you cannot make another application onshore for a student visa (or any other visa). Section 48 of the Migration Act bars your application. To go back to a Student visa you’d need to apply offshore however that will be difficult as you’ve already demonstrated an intention to apply for pR so they may refuse another student application as you are not a ‘genuine temporary entrant’ as a student. new student criterion.
Grant Williams
Thanks Grant. The application for the visa 485 has not been refuse yet, I did not get any answer for it still, but I already got the vetasess assesment which already fail. In this case do I will be able to withraw the 485 visa and apply for a student visa.
Thanks for ur valuable feedback.
SOnia
Dear Sonia Yes you can withdraw you application but then you are left on a BV with only a limited time to depart Australia. As I said previously it will be difficult for you to apply for another Student visa. If you withdraw then try to apply you cannot meet the application requirements as you will have been on a BV for more than 28 days. So no it will not work. Grant Williams
Thanks Grant>
I really appreciate your help!
Sonia.
Grant,
Did my 12th grade in 2002 since then working, currently appointed at a reputable telecom firm as a supervisor from last 3 years. Applied for 572 (Certificate IV and Diploma in accounting) having an IELTS score of 7.5 band last year got refused due to insufficient funds which was a total blunder by my agent. Now looking forward to apply for 573 (Bachelors program in Accounting). Have the supporting documents from my current and ex-employer of my chances for re-hiring on a more better position. Will it respond the GTE condition. I am living in pakistan.
Regards,
Sikku
Dear Sikku
Generally all visas are quite simple. They have criteria and if you meet them you get the visa . The GTE is rather a curve ball as the saying goes but you’ve not given them any reason to dobut your veracity you simply didn’t somehow show enough $$$$.
Grant Williams
Thanks for sharing your thought. But last time when I applied GTE wasn’t the part of student visa program and now it is how do see that as now I have a education gap and the reason I want to carry on my studies is professional requirement.
Dear Sikku Yes that is a valid reason to apply and it meets the GTE criterion. You will only find out if you apply. Grant Williams
Grant, Thank you soo much for ur response.
Hi Grant
I have currenly 50 pts..as on shore applicant… I got positive skill assess ment in ICT ..But I had 2 years overseas experience but it was closely related SOL list….as Electronic Trade Worker done by TRA
for claiming this point Do I need to assess both assess body..??
Can I claim that 5 point??
Thnx
NO I do not think you will get these points. Although they may be related DIAC will not view these as closely related. Grant Williams
Hi Grant,
I wish to clarify when I could work unlimited hours on a student visa. My course completion date is 30 June 2012, but I would have finished all classes and submitted all assessment by 28 May 2012. Am I considered “out of session” from 28 May and work unlimited hours, or am I considered “out of session” only after 30 June? Thank you very much.
Cheryl
You are out of session when you have completed all course requirements, and paid all outstanding fees. Then you can work full-time. So that’s 28 may. Grant Williams