Federal Court: In 2018, we summarised the Federal Circuit Court (FCCA) decision in Singh that interpreted Direction 53, which is almost identical to Direction 69. Both directions provide guidance on how to assess the Genuine Temporary Entrant (GTE) criterion for student visa applications. We kept tracking Singh for our readers and we now summarise a decision of the Federal Court (FCA) delivered yesterday on whether Singh was correctly decided. We also discuss how practitioners can use this FCA decision to increase clients' prospects of satisfying the GTE criterion in student visa applications.
A delegate refused the Appellant's student visa on the basis of his failure to satisfy the genuine temporary entrant (GTE) criterion. The Appellant then applied to the Tribunal for merits review of the delegate's decision.
The Tribunal was bound by s 499 of the Migration Act 1958 (Cth) to comply with Direction 53, which provided guidance on the factors to be used in assessing the GTE criterion, such as: "value of the course to the applicant's future"; "applicant's circumstances in their home country"; etc.
Direction 53 is almost identical to Direction 69. Both directions provide that the factors they set out should not be treated as a checklist.
The Tribunal affirmed the delegate's decision and did not refer to some of the factors set out in the direction in its decision record.
The Appellant subsequently applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision, but the FCCA dismissed that application.
The Appellant eventually appealed the FCCA's decision to the Federal Court (FCA).
Although this is not an appeal from the FCCA's decision in Singh, it is an appeal that is essentially about the same issues considered in Singh.
The questions to the FCA were as follows:
Question 1: Are decision-makers required by the direction to consider all the factors set out in the direction in assessing the GTE criterion?
Question 2: If the answer to Question 1 is "no", which factors contained in the direction are decision-makers required to consider in each case and why?
Further, we discuss how practitioners can increase clients' prospects of success in student visa applications, based on this decision.
The FCA answered those questions as follows:
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
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.