Problems in International Education and Migration

Below is an abridged version of the presentation Daniel McKinnon made at the AIEC conference in October 2016.

Ever since I came to work in this field I have been struck by the lack of coordination, and sometimes downright conflict between Education and Migration regulation. It is natural that these areas of public policy would have competing interests, but sometimes governments can make things worse than necessary.

One particularly problematic area for student visas is that of the Genuine Temporary Entrant requirement (or GTE). This requirement effectively means that you are not eligible for a student visa unless you intend to return to your country after studying.

The promise, or hope, of permanent migration is a key part of our international education product. In the Howard Government years, international education and skilled migration were directly linked. If you obtained a skill, and had a few other boxes ticked, then you got a skilled migration visa. This generated a lot of international students for Australia, but the system was unsophisticated and unsustainable. That all changed with the Rudd/Gillard government, and the Global Financial Crisis in and after 2008.

The direct link between international education and migration was broken. Government was keen to convey the message that coming here to study did not mean that you could stay on.

However, while the direct link was broken, strong indirect links still exist. We still provide pathways for people to study here, work after graduating, and then remain on a skills visa or an employment visa. We know that this is one of the most powerful features of our education “product”. Many, probably most, students want to stay on and work in Australia after they graduate.

Yet if a student intends to finish their course, then use the pathways available to stay on and work in Australia, they are technically not eligible for a visa.

Education providers are discouraged from alluding to any possible skilled visa outcomes, and are prevented from giving any assistance to students. Yet they are happy to customise their course offerings around the Immigration Department’s Skilled Occupation List. Some providers are reluctant to even deal with education agents who are registered migration agents, while other providers have their own registered agents on staff.

Meanwhile, some offshore education agents make any false promises and give incompetent migration advice, out of reach of Australian regulation. The students, and Australia’s reputation, are the victims.

Quick overview of the GTE Regulations

Migration Regulations:

The Migration Regulations are the heart of the visa system. The Migration Act provides the legal framework but the regulations provide the visa rules. So what do the regulations say about GTE?

500.212

The applicant is a genuine applicant for entry and stay as a student because:

(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:

(i) the applicant’s circumstances; and

(ii) the applicant’s immigration history; and

(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

(iv) any other relevant matter; and…

This regulation is very clear. If a student were to write on their application form that they plan to plan to complete their Masters, get a graduate work visa, and then obtain sponsorship with an Australian company they would not meet the visa requirements, and their visa would have to be refused. Remember, it is about the applicant’s intention.

Ministerial Direction 69

There is some assistance to the immigration officer in interpreting these regulations. The Migration Act allows for the Minister to write directions to help interpret them. In this case there is a Ministerial Direction – called Ministerial Direction 69.

The applicant’s circumstances

6. Decision makers should have regard to the applicant’s circumstances in their home country and the applicant’s potential circumstances in Australia.

7. For primary applicants of Subclass 500 Student visas, decision makers should have regard to the value of the course to the applicant’s future.

8. Weight should be placed on an applicant’s circumstances that indicate that the Student visa or Student Guardian visa is intended primarily for maintaining residence in Australia.

This last one may look like it is OK to intend to remain in Australia long-term as long as that is not your primary purpose for applying for the visa. But this is not the case. This provision is intended against those who want to gain a student visa just so that they can stay in Australia. It is about whether the student is a genuine student at all.

Further to the Ministerial Directions there is the Procedures Advice Manual (called the “Policy” for short). This document gives advice to Ministerial Delegates (Immigration officers) in how to make decisions. It says:

A GTE is a student visa applicant whose circumstances support a genuine intention to enter and remain in Australia temporarily, notwithstanding the potential for this intention to change over time to an intention to remain in Australia for an extended period or permanently.

So here we see the mental gymnastics that the government has undertaken to reconcile the need for the student to intend to return home with the eventual situation of the student remaining in Australia

In other words, you are allowed to come to study in Australia, and you can decide to stay on and gain permanent residence, but only if you form that intention after your visa is granted.

Consequences of this disconnection between Migration and International Education policy and regulation

The disconnect between these two areas of government is causing real harm:

Student harm – Students are confused, vulnerable to exploitation, and liable to make poor decisions in making visa applications. A simple visa mistake can be devastating for an international student.

Confused marketing messages. It is very difficult for students, and their families, to understand their prospects for skilled migration after study.

Perverse behaviours and outcomes. We are forcing even excellent students to be dishonest about their intentions. We are rejecting visa applications in sometimes arbitrary ways.

Brand damage. This all adds up to brand damage to the Australian International Education sector.

In 2015, the Australian Productivity Commission wrote:

The lack of a synchronised and coherent strategy for these two interacting policy levers has the potential to undermine the sector’s ability to take advantage of the opportunities offered by growth in the global education market.

(International Education Services, Productivity Commission report April 2015)

Solutions

This is a large and complex area, but some solutions to the problems I have flagged are as follows:

1.    Government and providers need to take central role in explaining the migration system to students, and how they may navigate that system.

2.    The GTE test should be dropped. If its real purpose is to prevent over-stayers, how come other visa types do not have this requirement, such as a graduate work visa? There are better ways to manage that risk. If it is to test if students are genuine students, isn’t this the job of the provider? In any case, if the student does not continue to meet the course requirements, they will be found out. If the real purpose of the GTE test is to control student numbers then, again, there are better and more transparent ways of doing this.