We take a break from providing you with the latest immigration laws and visa news as we have some very exciting news about us.

We are very excited and incredibly humbled to have been selected as a finalist in the Boutique Law Firm of the Year Award category of the Australian Law Awards 2023 and that our founder and Principal Lawyer, Chris Johnston has been recognised as a finalist in the Mentor of the Year award.

Boutique Law Firm of the Year

As a boutique law firm based in little old Adelaide, in South Australia and to be shortlisted as a finalist in 2 categories for a national award such as this is a remarkable achievement. The Australian Law Awards is highly regarded across Australia’s legal sector, so we are extremely proud of this recognition.

While it is tempting to think that we are punching above our weight, we remind ourselves that we are the biggest immigration law firm in South Australia. We do believe that specialising in immigration law allows us to provide specialist expertise to our clients to match national big firms while keeping our boutique small practice attitude and offer a personalised approach to our clients and their matters.

For us being named as a finalist is a recognition of our hard work and our commitment to providing ethical, professional and excellent service to our clients.

Mentor of the YearA lot of people know about Australian migration law or about Australian visas by watching Chris in our videos on YouTube and recently in TikTok or by accessing our websites for our articles. But in addition to Chris sharing his knowledge and experience through YouTube or our website, Chris is also sharing his knowledge and time and guiding law graduates and Registered Migration Agents as a mentor.

It is Chris’ belief that mentoring the new professionals is a way to contribute to the advancement of the profession.

Chris was able to establish and grow Work Visa Lawyers by having the invaluable guidance of his mentors and sees the importance of mentoring not just to help up and coming law professionals but also for him to grow and to learn from his peers and develop as a legal professional.

Chris was mentored by some great people including Lawyer Joanna Richardson and RMA Brian Jones.

We take this opportunity to thank all our clients, for their trust and for referring us on to their family, friends and contacts and for engaging with us through our various social media platforms.

Awards night will be on  11 August 2023 in Sydney and whether we win or not, we are celebrating nevertheless and giving ourselves a pat on the back.

This article is updated regularly. Last updated: Tuesday 9th September 2024

The Genuine Temporary Entrant (GTE) is a requirement almost all migrants will have to pass in the process of immigrating to Australia. Failing the GTE requirement can result in a devastating visa refusal. Here is what you need to know about the GTE criteria so you don’t receive a visa refusal notification.

1. What Is The GTE?
2. How To Meet The GTE Criterion?
   1. What Factors Do The DoHA Look At? 
   2. Your Immigration History? 
   3. If You Are A Student
   4. Supporting Your Claims
3. Does Every Visa Have The GTE Criterion? 

What Is The GTE?

GTE is short for Genuine Temporary Entrant. Based on the documents provided by the applicant, the Department of Home Affairs (DHA) will determine whether the applicant has a true purpose of temporary stay and the intention to stay in Australia for the time being. 

The DHA will consider the applicant's background in their home country, the immigration history, the incentive to stay in Australia or return home. If you do receive a GTE visa refusal you may have the option to appeal and review the decision.

How to Meet GTE Criterion?

What Factors Do the DoHA Look At?

DoHA looks at factors which might make you wish to not return to your home country:

• Political or civil unrest
• Military service commitments
• Your financial circumstances in your home country

The DoHA will also look at factors which would encourage you to return home such as, if you have a job back home, and have approved study leave. Another example would be if you have a business or personal assets in your home country, or close family members this may also be considered.

Your Immigration History

DoHA checks your immigration history as well:

• If you have spent a long time in Australia, DoHA may consider that you are seeking to extend your stay in Australia and work here.

• If you have had previous visa refusals/cancellations

• Any previous issues with visa compliance - for example not completing studies on previous student visas, working in excess of work conditions, overstaying your visa

If You Are A Student

Supporting Your Claims

Evidence documents to support the facts you listed in your statement should be provided at the time of application as well.

For example, if the applicant mentions that his future goal is to return home and open a restaurant, he can explain it in his GTE and prepare a corresponding business plan for opening a restaurant. However, if an applicant only said in his GTE statement, “I applied because I like it very much.” Such claim is not convincing and will not meet the GTE requirements.

Below is a real example of a refusal that a client received before consulting with Work Visa Lawyers.

Please note that it is common for a case officer to call you and ask you questions about your reasons for study in Australia. You may not receive any notice of this, so it is very important that you are prepared to discuss your case.

 Does Every Visa Have the GTE Criterion?

In short, no, but the majority of visas do use GTE requirements. The GTE is important because it applies to all Visitor Visas and some of the Temporary Visas. To put this in perspective, the Australian Bureau of Statistics recorded 780,500 Visitor visa movements in September 2018. Keeping the same amount of movements per month, in a year there would be 9,366,000 Visitor Visa movements. This means that nearly 10 million people would have had to pass the GTE requirements.

Some of the most common Temporary Visas that have the GTE criterion are:

• Student visa subclass 500  Recently released migration system review report has suggested that the GTE criteria for Student visa subclass 500 applications be replaced with something called Genuine student test, which will be focused on assessing whether the student has genuine studying intentions as compared to GTE where focus is on assessing whether the student is coming to Australia on a temporary basis and will not live here permanently.
• Visitor visa subclass 600
• Temporary work visa subclass 400
• Temporary Activity​ subclass 408
• ​Training subclass 407
• Work and Holiday visa subclass 462
• Working holiday subclass 417
• Medical treatment subclass 602
• Short-term stream subclass 482

It is important to remember that the GTE is often not the only criteria you will have to meet. For example, the Short-term stream subclass 482 which replaced the popular subclass 457 recently, has many requirements including IELTS and other skills assessments.

It is also important to show a range of documents to demonstrate an incentive to return home.
These could include:
- Employment to return to in home country.
- Close family ties and responsibilities in the home country - for example, if you are married and your partner is staying in home country during the visit, this is a positive GTE factor.
- Ownership of property or businesses in home country

Do you need help with an Australian visa application?

Lawyers and Registered Migration Agents from Work Visa Lawyers have rich experience in drafting GTE statements. If you need any assistance, please feel free to contact our team.

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications, including state sponsorship applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

Sources

http://www.abs.gov.au/ausstats/[email protected]/mf/3401.0/

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-590/genuine-temporary-entrant

https://www.workvisalawyers.com.au/news/all/australian-visa-refusal-notification-options-for-the-appeal-review-process-tribunal-ministerial-review.html

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/student-500

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/visitor-600

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-work-400

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-activity-408

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/training-407

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-462

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-417

https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-skill-shortage-482

https://www.workvisalawyers.com.au/news/all/top-10-facts-you-need-to-know-about-the-new-482-visa-1.html#Skills

https://www.workvisalawyers.com.au/news/all/ielts-now-offering-computer-delivered-english-tests-for-visa-applicants-in-australia.html

https://www.workvisalawyers.com.au/news/all/skills-assessments-occupation-lists-for-australian-tss-482-and-employer-sponsored-permanent-resident-visas.html

Picture this: you've been living in Australia for the last 10 years with your wife and child. You had a criminal history in your home country, but you moved away to get a fresh start and put that life behind you. You're here on a genuine visa and you're earning your keep by legitimate means. But then you get a notification from the Department of Home Affairs saying your visa has been cancelled due to "character grounds", and you have 9 days to lodge an appeal or you must leave the country. What are you going to do?!

Section 501 of the Migration Act 1958 gives the Minister for Home Affairs, or their delegate, the right to refuse or cancel a visa if they are satisfied that the visa holder does not pass the "character test". In addition, Subsection 501(3A) imposes an obligation on the Minister to cancel a visa if an applicant/visa holder fails the character test for specific reasons- which means if you tick the right boxes, the Minister must cancel your visa.

These laws have only recently been put into place but they apply retrospectively. This means that even though the law didn't exist when you moved to Australia and got your visa, it applies to you now. And that's how people find themselves in very difficult situations like in the example above.

What is the Character Test?

The character test is set out in Subsection 501(6) of the Migration Act and it lists a number of reasons for which a visa can or should be cancelled. The list is long, but it includes:

• having a substantial cirminal record
• having committed sexually based offences against a child;
• having committed offences while in or escaping from immigration detention;
• being involved in people smuggling or slavery; or
• being part of a criminal organisation (such as the mafia).

In our experience, the most common reason for cancellation of refusal is though incurring a "substantial criminal record".

Substantial Criminal Record

The Migration Act says a person has a "substantial criminal record" if they have been (and this is not an exchaustive list):

• sentenced to a term of imprisonment of 12 months or more;
• sentenced to death; or
• found unfit to stand trial, and has been retained in a facility or institution.

What Can You Do About a Visa Refusal or Cancellation for Character Reasons?

Refusal or cancellation decisions are appealable to the Administrative Appeals Tribunal. The tribunal is required to make a decision on the appeal within 84 days of the applicant being notified of the refusal/cancellation.

Just as with the Minister, the tribunal is required to weigh up the facts that arise in the matter with respect to Ministerial Direction 90, as follows:

Primary considerations:

• Protection of the Australian community from criminal or other serious conduct;
• Whether the conduct engaged in constituted family violence;
• The best interests of minor children in Australia;
• Expectations of the Australian community.

Other considerations:

• International non-refoulement obligations (not sending you back to a country where you will be persecuted);
• Extent of impediments if removed (how badly you would be affected by it if you are sent home);
• Impact on victims; and
• Links to the Australian community, including:
  1. Strength, nature and duration of ties to Australia (such as family, friends and community); or
  2. Impact on Australian business interests.

As you can see, Ministerial Direction 90 provides ample opportunity for a lawyer to develop an appeal argument. The tribunal’s decision ultimately turns on the weight it assigns to each consideration and whether it feels the positives outweigh the negative aspects of an applicant’s situation.

In our experience it is important to recognise an appeal’s strengths and weaknesses and focus submissions accordingly. For example, if an applicant has an extensive criminal record there is no value in trying to argue that they don’t. Instead, it is important to acknowledge it and provide an explanation and context for that offending as well as emphasising the positive aspects of their situation – such as family, cultural, or business ties to Australia. The discretion granted to the tribunal offers applicants the opportunity to put their best foot forward.  

Timing

Appeals of Section 501 refusals and cancellations are time sensitive processes, given that the tribunal is required to hand down a decision within 84 days. As such, it is important to be organised, focused, and strategic in where to focus your energy. Do not waste time!

If you do find yourself facing a section 501 refusal or cancellation you need to speak to an experienced immigration lawyer immediately to understand your options. Work Visa Lawyers is happy to discuss your options further, provide an assessment of the strengths and weaknesses of your case, and give you an indication of whether we consider there to be sufficient grounds to lodge an appeal.

Make an appointment now if you need help on a visa refusal/cancellation appeal.

Author:

Lochlan Reef MacNicol, Lawyer & Registered Migration Agent at Work Visa Lawyers

Do you need help?

Our team of experienced Immigration Lawyers and Migration Agents look forward to assisting you with your Australian visa or appeal.

Based in Adelaide South Australia, we provide Australian Immigration advice to people and businesses from all over the world.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956 or This email address is being protected from spambots. You need JavaScript enabled to view it.

You can also subscribe our Facebook: WORK VISA lawyers

Disclaimer

This information is correct at the time of publication but is subject to change without notice.  All information provided on this page is provided for purely educational purposes and does not constitute legal advice.  For advice on your situation, please speak with an Immigration Lawyer or a Registered Migration Agent.

In a media release from the Australian Government on 23 August, it has been confirmed that the Australian Agriculture Visa will go ahead in 2021. In the statement it was announced that new Regulations would be in place by the end of September 2021. Speculation about the promised visa has been widespread since Australia’s Minister for Agriculture, Drought and Emergency Management, David Littleproud, announced in June that it would be coming soon. We wrote an article about the Agriculture visa at the time of the announcement, based on Minister Littleproud’s assertions, but the scope of the visa seems to have expanded substantially over the last few months creating more places in more industries.

If you're a Permanent Resident of Australia, congratulations!  You've already come so far and done so well.  But you're looking to take things one step further, you might consider becoming an Australian Citizen.  Citizens have the privilege of voting rights, financial assistance for education, government jobs, and protection from deportation.  It's definitely worth pursuing!  So how do you become a citizen of Australia?