Federal Circuit Court holds that failure by Tribunal to take into account mandatory considerations listed in Direction No. 53 is jurisdictional error
The “genuine temporary entrant” criterion, or the “GTE” as it is commonly known, can present a serious obstacle to applications for student visas (Subclass 500).
The GTE is imposed by regulation 500.212, and imposes as a requirement for the grant of a student visa that the applicant be a genuine applicant for entry and stay in Australia because the applicant intends genuinely to stay in Australia temporarily, having regard to the applicant’s “circumstances”, immigration history and any other relevant matters.
Man, many (many!) student visa applications have “fallen over” as a result of the applicant’s failure to satisfy the GTE (the number of refusals based on the GTE undoubtedly numbers in the thousands).
That is why a decision handed down on 23 November by Judge Riley of the Federal Circuit Court in Melbourne, Singh v Minister for Immigration & Anor (2018) FCCA 3423 is so potentially significant: it offers a very strong basis on which applicants who have suffered refusals on the basis of the GTE to challenge those refusals in the Federal courts.
As will be known by readers, the Minister has adopted a direction, Direction No. 53, pursuant to the Minister’s powers under section 499 which specifies guidance, binding on all decision-makers, concerning the matters that are to be considered by decision-makers – officers of the Department and the Administrative Appeals Tribunal alike – in assessing whether a particular applicant satisfies the criterion of being a genuine temporary entrant.
What is critically important about Judge Riley’s decision in Singh is that His Honour held that if any of the factors that are listed in Direction No. 53 that are identified as mandatory considerations have not been considered by the Tribunal, then such a failure by the Tribunal may amount to jurisdictional error (which will lead to the case been remitted back to the Tribunal for re-determination).
Judge Riley’s decision in Singh follows in the footsteps of an extremely important decision made late in 2017 by the Full Court of the Federal Court in the case of He v Minister for Immigration and Border Protection (2017) 255 FCR 41; (2017) FCAFC 206.
The He case involved the refusal of a Partner visa application.
In He, the Full Court held that where a particular legislative scheme identifies a list of factors that must be taken into account by a decision-maker, and the decision-maker does not take into account one or more of those factors, then a conclusion that jurisdictional error has occurred may follow.
Also importantly in He, the Full Court observed that in circumstances where the decision-maker (the Tribunal) has not set out a finding concerning a “prescribed matter” (mandatory consideration), it may be open for a court to draw an inference that the matter has not been considered.
Judge Riley’s decision in Singh takes the principles that were articulated in He in relation to Regulation 1.15A (concerning the factors to be assessed by a decision-maker in determining whether an applicant and sponsor are in a genuine spousal relationship for the purposes of a Partner visa) and applies them to the GTE.
Direction No. 53 identifies a number of considerations that must be taken into account by a decision-maker in determining whether an applicant for a student visa.
For example, the Direction requires at Paragraph 6 that the decision-maker must have regard to the applicant’s circumstances in their home country; Paragraph 7 requires that the value of the course to the applicant’s future must be considered; and Paragraph 9 provides that in considering the applicant’s circumstances in their home country, the decision –maker must take into account matters such as whether the economic circumstances of the applicant would present a significant incentive for the applicant not to return to their home country; whether military service commitments would present a significant incentive for the applicant not to return; and whether there is political and civil unrest in the home country which may induce an applicant to seek a Student visa as a means of remaining in Australia indefinitely.
What happened in Singh, among other things, was that the Tribunal did not consider the matters that were listed as mandatory considerations in Paragraph 9 of Direction No. 53 and did not “weigh those matters in the balance” in determining whether the applicant was a GTE.
Likewise, Judge Riley found that the Tribunal fell into jurisdictional error by not expressly considering, or considering “implicitly” or in findings of “greater generality” another mandatory consideration, one that is stated at Paragraph 11(a) of Direction No. 53, namely, whether “the applicant’s ties with Australia would present as a strong incentive to remain in Australia”.
To summarise: the moral of the decision in Singh is that if the Tribunal has affirmed the refusal of a student visa, it is essential to read the Tribunal’s decision record with care, and to assess whether there has been a failure by the Tribunal to consider any of the mandatory considerations listed in Direction No. 53.
Those mandatory considerations will be able to be identified by the use of the word “must” in the Direction in relation to any particular factor.
And, if the Tribunal has failed to take into account mandatory considerations in Direction No. 53, there very well may be a case of jurisdictional error which can enable the case to be returned to the Tribunal for reconsideration.