The anticipated abolition of the criterion to intend to reside in Australia temporarily for student visa applications will finally occur on 23 March 2024 and apply to all student visa applications lodged from that date.

The concept of temporariness for student visa applicants has always been somewhat of a legal fiction.

Consider the preamble to the current Ministerial Direction, which states:

An applicant who is a genuine temporary entrant will have circumstances that support a genuine intention to temporarily enter and remain in Australia, notwithstanding 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.

Given the aspirations of many to reside in Australia permanently, it would come as no surprise that a student may change their intention from being a temporary resident to a permanent resident the moment their student visa is approved.

The government recognises that this criterion may cause confusion and discourage future migration. The legislative instrument that will come into effect on 23 March 2024 will amend the Migration Regulations 1994 (Cth) and remove references to the intention to stay in Australia temporarily. This will apply to both the primary and secondary visa applicants where applicable.

This change, however, does not mean the recently throttled floodgates of student visa applications will be opened. Subclass 500 – Student visa applicants must still demonstrate that they will be a genuine student.

There will still be an assessment of the applicant’s entry and stay as a student and will retain assessing:

• their circumstances,

• their immigration history,

• their compliance with visa conditions,

• their parent’s, legal guardian’s, or spouse’s intentions if they are a minor, and

• any other relevant matter to their situation.

This will arguably move scrutiny to whether the visa applicant has any intentions other than studying, such as working. It may also not change the grounds for refusing a student visa for serial student visa applicants who are not making course progress.

It is expected that the ministerial direction will be replaced to provide clear guidance for decision-makers on how to assess this new genuine student requirement. As ministerial directions must be followed, the current one will be out of kilter with the amended regulations.