Student genuine temporary entrant requirement abolished? Workplace justice visa coming?

Media reports on the Labor Party’s National Conference and possible changes to a major student visa requirement would result in significant changes to some of Australia’s most used temporary visas.

Genuine Temporary Entrant requirement replaced by the Genuine Student Test

Some major media outlets have reported the expectation that the Genuine Temporary Entrant (GTE) requirement will be replaced by a new test, called the Genuine Student Test, or rather the GST, which will hopefully not be confused for Goods and Services Tax.

The GST may grant visas to those who are seeking a pathway to a permanent visa.

The GTE criterion has been a common complaint and a major ground for student visas to be refused, mainly because the criterion is highly subjective. Two processing officers may form different opinions as to whether the criterion has been met and where both decisions can be legally correct. This is because Ministerial Direction Number 69, which are guidelines an assessor must follow has a range of factors to consider.

One is the middle letter in the GTE acronym: temporary. Declaring in the student visa application that the applicant intends to stay in Australia permanently would most likely be a red flag and grounds for refusal, as the direction states that the applicant:

will have circumstances that support a genuine intention to temporarily enter and remain in Australia.

Ironically, the direction also allows:

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.

For many, that intention may have changed as soon as their student visa has been granted.

Despite these legal acrobatics, the need to assess temporariness is set to be abolished. In its place will be the GST. It is expected that this new test if implemented, will focus heavily on the first letter of the acronym: genuine.

While some may see this change as beneficial, the GST may prove to be just as tough. It is unlikely the new criterion will remove the need for students to demonstrate that they will genuinely finish the course of study they propose. Serial student visa applicants, particularly those who do not complete prior courses, may find it just as difficult to meet the new test.

Australia’s education sector has faced recent criticism for the way some international students have exploited the student visa system, including to work and save money on tuition fees by transferring from a higher education sector course to a vocational course after their student visa was granted, or to jump onto the still-available subclass 408 “COVID” visa as soon as practical to work without the need to study at all.

Whether the GST will address these concerns will not be known for some time.

Workplace justice visa on the cards

Recommended by unions during the Labor Party National Conference held last week and the Law Council of Australia is the introduction of a visa to support migrants leaving exploitative situations.

This proposal coincides with the Migration Amendment (Strengthening Employer Compliance) Bill 2023, which seeks to stamp out the exploitation of temporary migrant workers by enshrining offences in the Migration Act 1958 (Cth) for coercing a temporary migrant worker to breach a condition of their visa or for underpaying them.

This new visa would be used to avoid visa cancellations for employer-sponsored visas. Visa cancellations generally occur for subclass 482 - Temporary Skill Shortage visas and subclass 494 – Skilled Employer Sponsored Regional (Provisional) visas where visa condition 8607 for 482 visas and visa condition 8608 for 494 visas require the primary visa holder to not cease employment with their sponsor for more than 60 or 90 days, respectively.

Other suggested alternatives to a workplace justice visa include extending the time to be considered in breach of ceasing employment to as long as 12 months, and having special dispensation for these visa holders to work for another employer without their new employer needing to have an approved nomination.

Any change to the current system, however, will need to account for its potential abuse and unintended consequences. For instance, there would need to be scrutiny of any claims made of exploitation to stop bogus allegations that may provide a visa holder with more beneficial arrangements such as unrestricted work rights.

Unintended consequences are difficult to account for. Simply reviewing the criticisms of Australia’s student visa program is as clear an example of this as any.