FEDERAL COURT OF AUSTRALIA

Gao v Minister for Immigration and Border Protection [2016] FCA 1439

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    Ms Gao appeals from the Federal Circuit Court’s dismissal of her case in that Court. Her case was that a decision of the Administrative Appeals Tribunal, adverse to her, should be set aside. The Tribunal’s decision was that it affirmed an earlier decision of the Department of Immigration and Border Protection (strictly, a decision of a delegate of the Minister for that Department). That delegate’s decision was that she should not be granted a student visa; more precisely, a ‘Student (Temporary) (Class TU) (subclass 572) visa’.

2    The appeal should be dismissed with costs.

3    On 3 June 2011, Ms Gao was granted a student visa which was due to expire on 15 May 2013. That visa was subject to conditions. One of these related to her education provider (in this case, the University of New South Wales) and was that it should not have certified that she had not achieved satisfactory course progress. This was one of the matters set out in condition 8202(3) of Schedule 8 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

4    Unfortunately for Ms Gao, the University certified just that matter on 11 March 2013, which immediately placed her in breach of this visa condition.

5    The date of the University’s certificate, 11 March 2013, was quite close to the date that her visa in fact expired, 15 May 2013. Whether her visa would be cancelled for non-compliance with her visa conditions before it simply expired was always going to be a close question.

6    On 10 May 2013, with just five days to spare, a delegate of the Minister decided, despite the breach of the conditions, that the appellant’s visa should not be cancelled, and should be permitted to run its course for the remaining five days that it was in effect.

7    On 13 May 2013, with just two days to spare, Ms Gao applied for a fresh student visa. Whilst that application was pending I assume she had the benefit of a bridging visa. On 17 June 2013, a delegate of the Minister refused to grant her a fresh student visa, on the basis that she had failed to comply with all of the conditions of her earlier visa. This requirement for the grant of the visa was the combined effect of ss 29 and 31 of the Migration Act 1958 (Cth), reg 2.01, Schedule 1 Part 2 and Item 1222 of the Regulations, and reg 2.02, Schedule 2 and cl 572 of the Regulations.

8    The condition of the earlier visa with which she had not complied was, of course, that her education provider had not certified her course progress as unsatisfactory. The significant matter for present purposes is that the delegate used the University’s certificate as a reason not to grant the second visa, even though another delegate had decided not to cancel her nearly expired first visa despite the existence of the same certificate.

9    In her proceeding in the Federal Circuit Court, Ms Gao argued that the Tribunal’s decision should be set aside because:

(a)    there was no evidence that she had not complied with the conditions of her earlier visa, that is to say, there was no evidence that the University had certified that she had not achieved satisfactory course progress; and

(b)    the Tribunal had erred in concluding that it had to be satisfied that she had ‘substantially complied’ with each and every condition of her visa, and therefore in particular with the condition that the University should not have issued a certificate of unsatisfactory progress. There were other conditions apart from the certificate requirement, and Ms Gao urged that a holistic approach should be taken to the issue of substantial compliance. On this view, substantial compliance with the conditions as a whole, rather than with each and every one, was what was required. This mattered because she contended that her unsatisfactory performance at the University was caused by her involvement in a car accident.

First Argument: No evidence of non-compliance

10    The first argument may seem surprising given that such a certificate certainly existed. Ms Gao’s argument sought to circumvent that difficulty by contending, in effect, that it was spent after the initial decision not to cancel her first visa.

11    This argument has no merit. The fact is that she did not comply with a requirement for the issue of the second visa, namely that she should have complied with the conditions of her first. The fact that a delegate had decided not to cancel her first visa did not mean that she had become compliant with the conditions attaching to the visa. The Tribunal has no legal capacity to go behind the certificate which was the end of the matter: see Patel v Minister for Immigration and Citizenship (2012) 206 FCR 384 at 403 [52]-[53] and 404 [56]-[57] per Collier J. Her Honour’s reasoning was applied by McKerracher J in Grewal v Minister for Immigration and Border Protection [2016] FCA 1229 at [28]-[29].

12    Consequently, the fact that a decision was made not to cancel the first visa had no legal impact on the status of the certificate. It has been held, therefore, that the revocation of a decision to cancel a visa because of the existence of a certificate of unsatisfactory course progress does not prevent the certificate subsequently being used as a basis for refusing the grant of a fresh visa: Ahmed v Minister for Immigration and Border Protection (2015) 233 FCR 485 at [15]-[16] per Flick J.

Second Argument: Substantial compliance

13    The second argument was directly rejected by the Full Court in Montero v Minister for Immigration and Border Protection (2014) 229 FCR 144 at 145 [1]-[2] and 149 [27]-[30]. It is probably not open to me not to follow this decision, which seems to me, with respect, to be correct.

The Court below

14    Judge Dowdy in the Federal Circuit Court rejected both of Ms Gao’s arguments on the grounds I have just explained. He was, with respect, entirely correct to do so. In this Court, it was urged on Ms Gao’s behalf that I should not follow the authorities to which I have referred. I see no reason to doubt the correctness of these authorities.

Result

15    The appeal should be dismissed with costs.

Associate:

Dated:    2 December 2016