System Message:

Australian Immigration Daily News

Breaking Australian immigration news brought to you by Migration Alliance and associated bloggers. Please email help@migrationalliance.com.au

  • Home
    Home This is where you can find all the blog posts throughout the site.
  • Categories
    Categories Displays a list of categories from this blog.
  • Tags
    Tags Displays a list of tags that have been used in the blog.
  • Bloggers
    Bloggers Search for your favorite blogger from this site.
  • Team Blogs
    Team Blogs Find your favorite team blogs here.
  • Login
    Login Login form
Posted by on in General
  • Font size: Larger Smaller
  • Hits: 871
  • 2 Comments

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Circuit Court in Melbourne concerning the genuine temporary entrant requirement which relates to Direction No. 53, now superseded by Direction No. 69.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.

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

 

Last modified on
Rate this blog entry:
0

Comments

  • Christopher Levingston
    Christopher Levingston Thursday, 06 December 2018

    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.

  • Guest
    Robert Thursday, 06 December 2018

    This 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.

Leave your comment

Guest Wednesday, 12 December 2018
Joomla SEF URLs by Artio

Immigration blog

Westpac Banner
I blame migrants
A recent article gives us some insight as to what ...
Continue Reading...
What does the Court do when it reviews a decision of the AAT?
FEDERAL COURT OF AUSTRALIA  Vidiyala v ...
Continue Reading...
RRV...Why so slow?
Although it may be this time of year but I am gett...
Continue Reading...
Man arrested for alleged migration fraud
A 32-year-old Indian national has been arrested fo...
Continue Reading...
Team up with IELTS to give your clients the edge
IELTS is often a necessary step towards study or m...
Continue Reading...