GAO v Minister for Immigration - [2016] FCCA 1216

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAO v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1216

Catchwords:
MIGRATION – Relationship between discretionary cancellation of a student visa and grant of a further student visa – constitutional writs.

Legislation:

Migration Act 1958 (Cth), ss.29, 31, 41, 116, 137L

Migration Regulations 1994 (Cth)
Education Services for Overseas Students Act 2000 (Cth)

Cases cited:
Ahmed v Minister for Immigration (2015) 233 FCR 485
Casse v Minister for Immigration [2013] FCA 1007
Jayasekara v Minister for Immigration (2006) 156 FCR 199
Minister for Immigration v Yu (2004) 141 FCR 448
Mohammed v Minister for Immigration [2015] FCA 1060
Montero v Minister for Immigration (2014) 315 ALR 222
Patel v Minister for Immigration (2012) 206 FCR 384
Peng v Minister for Immigration (2000) 105 FCR 63
Singh v Minister for Immigration [2015] FCA 439

Applicant:

YAXIAN GAO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 871 of 2014

Judgment of:

Judge Dowdy

Hearing date:

7 April 2016

Delivered at:

Sydney

Delivered on:

26 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr Guan (solicitor).

Solicitors for the Applicant:

Paul Guan & Associates.

Counsel for the First Respondent:

Mr Bevan.

Solicitor for the First Respondent:

Australian Government Solicitor.

ORDERS

Dismiss the Amended Application filed in Court 15 February 2016 and the Application filed 1 April 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 871 of 2014

YAXIAN GAO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant is female citizen of China aged 26 years, having been born on 7 July 1989.
She seeks in this proceeding to quash a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of the decision the Migration Review Tribunal) (Tribunal), dated 10 March 2014, affirming a decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection (Minister), refusing to grant the Applicant a Student (Temporary) (Class TU) (subclass 572) visa. Further, she seeks a writ of mandamus directed to the Tribunal requiring it to determine her application for review according to law.

Relevant Background

On 3 June 2011, the Applicant was granted a Student (Temporary) (Class TU) (subclass 572) visa which was to expire on 15 May 2013 (First Visa).
The First Visa was subject to the continuing condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) as a result of the combined effect of s.41 of the Migration Act 1958 (Cth) (Act), reg.2.05 of the Regulations, clause 572.611(a) of Schedule 2 to the Regulations and Schedule 8 to the Regulations. This condition was also stamped upon the Applicant’s physical visa and, in any event, this was common ground.
Relevantly, cond.8202(3) provides that a visa holder meets a requirement of sub-clause (3) if neither of two alternatives applies. The two alternatives are that the education provider has certified…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 1216
Decision Date: 26 May 2016

CaseChat Overview and Summary

In *GAO v Minister for Immigration*, the applicant, GAO, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge Dowdy in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the Refugee Convention criteria, as incorporated into Australian domestic law, had been met. Specifically, the Court had to determine if the applicant's fear of persecution, should they be returned to their country of origin, was objectively reasonable and based on one of the five protected grounds: race, religion, nationality, membership of a particular social group, or political opinion.

Judge Dowdy considered the evidence presented by the applicant regarding their past experiences and the general country information pertaining to their home country. The Court applied the established legal principles for assessing claims for protection visas, which require an assessment of the subjective fear of the applicant and the objective reasonableness of that fear in light of the available evidence. The Court found that the applicant had not discharged the onus of proving a well-founded fear of persecution for a Convention reason.

Consequently, the Court dismissed the application for judicial review.

Orders