Federal Court: FCA had held that: the factors in Direction 53 for assessing whether a person is a Genuine Temporary Entrant (GTE) were not mandatory considerations; decision makers were only required to consider whether to weigh up those factors; evidence going to a particular factor might be "shown to be so significant or compelling that it might be inferred that the Tribunal's failure to refer to that evidence manifested a failure to [consider whether to weigh up that factor]". Do the same principles apply to Direction 69? We explain how practitioners can use this decision to maximise the prospects of satisfying the GTE criterion. Further, FCA answered whether it was likely that Appellants' RMA had told them "they did not need a lawyer" at FCCA.
Matters relevant to Question 1
The Federal Court (FCA) said as follows:
7 The appellants were not represented in the Federal Circuit Court. Contrary to the orders of the Circuit Court, they filed no particulars of the grounds of review and filed no submissions...
According to the first Appellant, the reason why they failed to comply with those orders was that the Agent:
16 .... told the appellants that they did not need a lawyer and did not need to respond to the orders made by the [FCCA] ...
Matters relevant to Question 2
The Federal Court (FCA) did not decide whether the decision of the Federal Circuit Court (FCCA) in Singh was correctly decided, as that decision involved a previous direction, namely Direction 53.
We note that the FCA did not refer to the decision of the FCA in Jan handed down less than a month ago (Nov 2019), which we summarised as follows:
In other words, although decision-makers are not obliged to consider each of the factors, they are obliged to consider whether to consider (or weigh up) each of those factors.
The FCA went on to state that "evidence [presented by a student visa applicant might be] shown to be so significant or compelling that it might be inferred that the Tribunal's failure to refer to that evidence manifested a failure to [consider whether to consider (or weigh up) each of those factors]".
We discuss below the differences and similarities between the present decision and Jan.
Questions to the FCA
The questions to the FCA were as follows:
Question 1: Was it likely that the Agent "would have told the appellants that they did not need a lawyer and did not need to respond to the orders made by the [FCCA]"?
Question 2: Do the principles applied in Jan also apply to the present case?
The FCA answered the above questions as follows:
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