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Important Decision About Student Visas and the GTE!
I am writing to make readers of the MA site aware that there has been a significant decision from Judge Riley of the Federal Circuit Court in Melbourne concerning the genuine temporary entrant requirement which relates to Direction No. 53, now superseded by Direction No. 69..
The decision was in a case called Singh v Minister for Immigration and Border Protection (2018) FCCA 3423 (23 November 2018) which can be accessed by clicking on this link.
In brief, Judge Riley held that if the Tribunal fails to take into account a "mandatory consideration" that is listed in Direction No. 53 (which binds all decision-makers in their assessment of whether an applicant satisfies the GTE), then jurisdictional error may have occurred.
This decision follows in the wake of the Full Court's important decision in He v Minister for Immigration and Border Protection (2017) 255 FCR 41; (2017) FCAFC 209 which was to similar effect, that if the Tribunal fails to consider and make findings regarding the matters listed in regulation 1.15A when assessing whether a spousal relationship is genuine for the purposes of a partner visa, that is also jurisdictional error.
The decision in Singh strongly suggests that RMAs who are acting for applicants who have had their applications for student visas refused based on supposed failure to satisfy the GTE should review the AAT's decision record carefully and if it appears that matters identified in Direction No. 53 were not considered by the Tribunal, should consider seeking legal advice as to the prospects for an application for judicial review to the FCC.
For those wishing greater details about this decision, there is a free post on my on-line newsletter, The Migration Messenger, which discusses the case: just click this link to go to that article.
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Comments
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Thursday, 06 December 2018This is both important and inconsequential at the same time.
An unfortunate reality is that the government is now using the Universities as a first "block" to clients against this GTE "criteria".
It is very debatable if Universities are "equipped" to be determining this.
The end result is that Universities refuse to enrol someone based on this (very subjective and arbitrary "criteria"). No repercussion. No accountability. No review - so the dept does not have to worry about "Jurisdictional error.
And the "govt" can end up with the numbers it wants.
Immigration blog
Michael,
Thank you for this invaluable insight.
I agree with you about the link between HE and this case in terms of the "must" consider.
Congratulations on the Migration Messenger!
Another very useful tool for the RMA tool box.
I for one would be delighted to be a subscriber to the newsletter.
Thank you for all of your help over the past years Michael and best wishes to you and yours over Christmas and the New Year.