Direction 69: mandatory considerations for GTE?

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:

The remainder of this article is only available to Case Law and Platinum subscribers.

Read our Terms & Conditions and upgrade below:

Monthly Subscriptions

Premium
Basic Content
Premium Content
-
-
$ 29 /month
Subscribe
Case Law
Basic Content
-
Case Law Content
-
$ 49 / month
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 9 / month
$ 69 / month
Subscribe

Annual Subscriptions

Premium
Basic Content
Premium Content
-
Save $ 49 / year
$ 299 / year
Subscribe
Case Law
Basic Content
-
Case Law Content
Save $ 89 / year
$ 499 / year
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 237 / year
$ 699 / year
Subscribe

 

Where GST applies, the above amounts are inclusive of GST.

Content Types

Basic Content includes basic news, some media articles and selected announcements.

Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.

Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.

Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.

If you already have a Case Law or Platinum subscription, click on 'Login' below.