Federal Court. In the context of assessing cl 500.212 (GTE), are merits review applicants necessarily on notice of the relevance of the matters set out in Direction 69 due to the very fact that they are so set out? Was it legally unreasonable for the AAT to treat what it found to be false statements made in a previous tourist visa application made by the Appellant as probative of an intention to stay in Australia beyond the conclusion of the student visa?
In the context of assessing whether Appellant satisfied cl 500.212 (GTE) of Schedule 2 to the Migration Regulations 1994 (Cth), the Tribunal wrote: "The Tribunal acknowledges that the applicant has a dream to open her own dessert restaurant in the future however the applicant was not able to explain in detail to the Tribunal about the proposed future plans".
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Was the Tribunal's language infelicitous in that it is "an unusual use of the expression 'not able to explain in detail' to ascribe that failure to circumstances where there was no specific attempt to elicit the information, or no request to explain"?
Question 2: If the answer to Question 1 is "yes", can it nevertheless be said that "the Tribunal is not required to press the appellant for details that she did not give and it was obviously incumbent upon her to provide the evidence that she wished to rely upon in support of the claims for the visa"?
Question 3: Can it be said that a merits review applicant is necessarily on notice of the relevance of the matters set out in Direction 69 due to the very fact that they are so set out?
Question 4: Can it be said that "the Tribunal did not need to inform the appellant about its reservations in relation to her evidence at any point during the hearing and although a Tribunal must advise of any adverse conclusion not obviously open on the known material, it is, of course, not otherwise required to expose its thought processes or provisional views for comment"?
Question 5: Was it illogical, irrational or legally unreasonable for the Tribunal to treat what it found to be false statements made in a previous tourist visa application made by the Appellant as probative of an intention to stay in Australia beyond the conclusion of the student visa?
The FCA answered those questions as follows:
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