Direction 69. GTE – “must” to “should” 

Paramjeet Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 670 – report by Staff Writer

This image has an empty alt attribute; its file name is image.png
Migration Case Law Updates

Date: 6 June 2022 Court: Federal Court of Australia Judge(s): Middleton J Judgment date: 10 June 2022

MIGRATION — student visa application — genuine temporary entrant criterion — interpretation of Ministerial Direction No 69 — Kaur v Minister for Home Affairs [2019] FCA 2026 followed — appeal from the Federal Circuit Court of Australia — whether Administrative Appeals Tribunal misconstrued or misapplied Ministerial Direction No 69 — whether illogicality or irrationality in reasoning

Facts

As reported by our Corporate Sponsors Lexisnexis the appellants are citizens of India. The first appellant arrived in Australia in 2007 holding a student visa. The second and third Appellants are her family. Between 2007 and 2017, the first applicant completed a series of educational courses in Australia.

On 27 September 2017, the first appellant applied for another Student (Temporary) (Class TU) (Subclass 500) Visa to continue her studies. The second and third appellants applied for visas as members of the first appellant’s family unit.

On 30 November 2017, a delegate of the relevant minister refused to grant the visa to the appellants. On 22 October 2018, the Administrative Appeals Tribunal (the “Tribunal”) affirmed the decision of the delegate on the basis that it was not satisfied that the first appellant genuinely intended to stay in Australia temporarily as required by para (a) of cl 500.212 of Sch 2 to the Migration Regulations 1994 (Cth) (“genuine temporary entrant criterion”). On 14 September 2021, the Federal Circuit and Family Court (FCFCOA) dismissed the appellants’ application for judicial review of the Tribunal’s decision.

On 4 October 2021, the appellants appealed to the Federal Court.

Grounds of Appeal

 1.that the primary judge erred in failing to find jurisdictional error in the Tribunal’s misconstruction or misapplication of Direction No 69 — Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (Direction No 69), in particular in the clauses of the Direction relating to a visa applicant’s economic circumstances; and
 2.the primary judge erred in failing to find jurisdictional error in the Tribunal’s illogical or irrational reasoning in respect of the Appellants’ circumstances in Australia as compared to the financial resources available to them in India.

Decision of Middleton J

His Honour referred to the potential different interpretations of the word “should” in cl 6 of Direction 69, referring to the differing opinions of Steward J in Paramjeet Kaur v Minister for Home Affairs [2019] FCA 2026; BC202205313 and SC Derrington J in Kouro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 186. Steward J’s approach was that the contents of Direction No. 69 should be used as a “guide” a decision-maker is not required to check each identified factor in the Direction. In SC Derrington’s view, that there was no material change in the contents of Direction No. 69 from the previous Direction 53 notwithstanding that Direction 53 stated a decision maker “must have regard to [the relevant factor or factors]” whereas Direction 69 replaces states a decision maker “should” have regard. According to SC Derrington, this was evident from the Preamble, where the previous wording in Direction 53 to the effect that “factors should be considered” was replaced in Direction 69 with the “factors that require consideration”.

Although shying away from making a finding about the correct approach, Middleton J expressed the opinion that the correct approach was that of Steward J, stating that the change of wording from “must” to “should” cannot be ignored.

His Honour went on to examine whether the tribunal had made an appropriate assessment of the factors both for and against granting visas to the appellants and found that it did. As such, His Honour found that there was no misconstruction or misapplication in the application of Direction 69, nor was the approach taken by the tribunal illogical or irrational. His Honour therefore dismissed the appeal.

As a member of VISA you can enjoy 10% of the Practical Guidance – Immigration Law 

Be advised this is general information only and is not intended to be relied upon as legal advice. VISA makes no warrantees or guarantees of the information on this webpage. For all legal issues we urge you to contact our Corporate Partners AR LAW SERVICES: Master Migration & Regulatory Lawyers. Specialist Crimmigration Law Firm. https://www.arlaw.com.au/

AR LAW SERVICES: Master Migration & Regulatory Lawyers

Leave a Reply