News & Insights
At MSM Legal, we regularly assist individuals and couples navigating the often-lengthy wait for permanent visas. For example, many of our clients have lodged a Partner visa application but want to be reunited in Australia while that application is being processed.
Since the Partner visa process can take many months or even years, it’s completely understandable to consider more temporary visa options, like Visitor visas, to be able to stay lawfully in Australia during the waiting period. Others in similar situations, such as skilled visa applicants, may wish to live or work in Australia while waiting for a decision.
However, many temporary visa categories, including Visitor visas, require applicants to meet the Genuine Temporary Entrant (GTE) requirement. This means demonstrating a real intention to remain in Australia temporarily. Understandably, many clients wonder whether having a pending permanent visa application (or a permanent pathway), such as a Partner or Employer-sponsored visa, might conflict with the GTE requirement.
Can You Meet the GTE Requirement With a Pending Permanent Visa?
The answer is yes — it is possible. Whether the GTE requirement is met depends on the applicant’s individual circumstances and the supporting evidence provided. A recent case provides helpful insight into how this can be assessed in practice.
Case Example: A Religious Worker’s Application
In one case, the applicant applied for a temporary visa to continue his religious duties in Australia. At the same time, he had a skilled visa application pending, which could lead to permanent residency.
The Department initially refused the temporary visa, citing that the applicant failed to meet the GTE requirement. The presence of the pending permanent visa application was viewed as inconsistent with a genuine intent to stay in Australia only temporarily.
However, the Court later found that the applicant did satisfy the GTE requirement and remitted the case for reconsideration. The decision highlighted several factors that weighed in the applicant’s favour.
How Is the GTE Requirement Assessed?
To determine whether an applicant meets the GTE requirement, the Department considers:
- Whether the applicant has substantially complied with the conditions of any previous substantive and bridging visas.
- Whether the applicant intends to comply with the conditions of the current visa.
- Any other relevant matters, such as whether the visa is being used to circumvent the proper visa process.
Key Considerations That Helped the Applicant’s case
The Federal Circuit Court ultimately remitted the matter to the Administrative Appeals Tribunal, finding that the applicant did meet the GTE requirement. Key factors included:
- Visa Compliance: The applicant had a strong history of complying with all prior visa conditions.
- Credibility: He was found to be a honest and credible witness who demonstrated a clear understanding of his visa obligations.
- Lawful Conduct: His application for a temporary visa was not an attempt to misuse the migration system. Rather, he was actively seeking to remain lawfully in Australia while awaiting a decision on his permanent visa.
- Religious Commitment: His intention to remain temporarily was tied to his role in the religious community, not personal motivations or conditions in his home country.
- Genuine Need: There was a demonstrated and genuine need for his services within his religious organisation. The position had not been created to facilitate his continued stay.
How MSM Legal Can Help
At MSM Legal, we understand the complexities of Australia’s migration system and the challenges that arise when balancing temporary and permanent visa pathways. Whether you and your partner are awaiting the outcome of a Partner visa, or you have applied for another permanent visa and need a temporary visa in the meantime, we can provide strategic, personalised advice.
Our experienced migration lawyers can assist with:
- Preparing clear, compelling submissions that address the GTE requirement
- Managing multiple visa applications at once
- Reducing the risk of refusal caused by policy misunderstandings or incorrect assumptions
Contact us today to explore your options and give your application the strongest possible chance of success.
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