Are All the Factors Mentioned in the Direction 53 Required to be Considered?
In the case of J (name redacted), the court considered an appeal from a decision of the Federal Circuit Court dismissing the application for judicial review of a decision of the Administrative Appeals Tribunal affirming the delegate's decision to refuse the appellants' application for a student visa based on Direction No 53.
Does the Following Actions of the Tribunal Constitute Jurisdictional Error?
The core issue in question is to decide whether the following actions of the Tribunal constitutes jurisdictional error:
whether the Tribunal was bound to have regard to the matters stated in the Direction,
whether the Tribunal erred in failing to have regard to certain matters stated in the Direction whether a failure by the Tribunal to refer to each of the matters in the Direction demonstrated jurisdictional error
whether the Tribunal failed to consider certain evidence presented by the appellants
In this case, the court held that the decision-makers are not required by the direction to consider all the factors set out in the direction in assessing the GTE criterion. 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.
However, the key takeaway, in this case, is that the court continued to go on and state that any evidence presented in a Student Visa application can 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 jurisdictional error.
This is a great case to be used in arguing GTE criterion, as practitioners should consider providing decision-makers with “significant or compelling” evidence towards satisfying that factor and making that a central aspect of their case to strengthen their current arguments.
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