GAO v Minister for Immigration
[2016] FCCA 1216
•26 May 2016
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) |
| 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 the holder, for a registered course undertaken by the holder, as not achieving “satisfactory course progress” or “satisfactory course attendance”.
On 11 March 2013 the Applicant’s then education provider, the University of New South Wales (UNSW), certified for the purposes of cond.8202(3) of Sch.8 to the Regulations that the Applicant had not achieved satisfactory course progress for her course leading to a degree of Master of Commerce (adverse certification). This adverse certification meant that the Applicant had not complied with cond.8202(3)(a) to which the First Visa was subject.
On 5 April 2013 an officer of the Minister notified the Applicant that the Minister was considering cancelling her First Visa pursuant to s.116(1)(b) of the Act for failure to comply with a condition of the First Visa. The Applicant replied to the Minister in a letter dated 6 April 2013 (which is not in evidence) and, by letter dated 10 May 2013, the Minister advised the Applicant that, although there was a ground for cancellation of the First Visa under s.116(1)(b) for breach of cond.8202, he had decided not to cancel the First Visa because he was “satisfied that [the Applicant] was not reported by the education provider in accordance with the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 and the Education Services for Overseas Students Act 2000”. The letter did not give any further details or explanation relating to the exercise of the discretion not to cancel the First Visa.
The effect of the Minister’s decision not to cancel the First Visa was that it continued to run its course over its remaining five days until 15 May 2013.
On 13 May 2013 the Applicant applied for a further Student (Class) TU) (subclass 572) visa (Second Visa).
Decision of Delegate
For the Second Visa, by reason of the combined effect of ss.29 and 31 of the Act; reg.2.01, Sch.1 (pt. 2) and Item 1222 of the Regulations, and reg.2.02, Sch.2 and cl.572 of the Regulations one of the criteria that the Applicant had to satisfy at the time of decision was clause 572.235. This required, relevantly, that the Applicant had to show that she had substantially complied with the conditions that applied to the last of any substantive visa held by her, namely, in her case, the First Visa.
On 17 June 2013 the Delegate of the Minister refused to grant the Applicant the Second Visa because there was a relevant certificate from the Applicant’s education provider certifying non-compliance with cond.8202(3) and, therefore, the Applicant could not satisfy cl.572.235.
The Delegate, in her Decision Record of 17 June 2013, recorded that the Applicant had not responded to the Department of Immigration’s (Department) email of 14 May 2013 seeking from the Applicant an explanation for her unsatisfactory academic progress.
The reason this statement was incorrect was because the Applicant on the same day, being 14 May 2013, had in fact forwarded a copy to the Department of the letter dated 10 May 2013 in which the Minister had indicated he had made a decision not to cancel the First Visa. However, nothing appears to turn on this because it was corrected before the Tribunal.
Application for Review to the Tribunal
On 26 June 2013 the Applicant lodged an application for review with the Tribunal of the Delegate’s refusal to grant the Second Visa.
The Applicant, together with her registered migration agent, attended a hearing before the Tribunal on 28 February 2014.
The Tribunal by its Decision Record of 10 March 2014 affirmed the decision of the Delegate not to grant the Second Visa, on the basis that UNSW had certified the Applicant as not achieving satisfactory course progress for the purposes of cond.8202(3)(a) and, therefore, the Applicant had not complied with that condition and did not satisfy cl.572.235, as was required. It held that it was not within the scope of the Tribunal’s tasks to go behind the certification from UNSW to investigate whether, for example, UNSW did or did not fully comply with the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) and the National Code in the process leading up to the adverse certification.
The Tribunal further held that the Minister’s earlier decision recorded in the letter of 10 May 2013 not to cancel the First Visa did not have the effect of demonstrating that the Applicant had substantially complied with the relevant conditions to which the First Visa was subject. It held that the earlier decision of the Minister not to cancel the Applicant’s First Visa was a discretionary decision which meant that the First Visa could continue to run to its expiry date of 15 May 2013, but that decision did not necessarily mean that the Applicant would be granted a further student visa.
Grounds of Attack on Tribunal Decision in this Court
Ground 1
The Application filed on 15 February 2015 alleges that the Tribunal committed jurisdictional error by failing to find that there was no evidence showing that the Applicant had failed to comply with condition 8202(3)(a) to which the First Visa was subject. In other words, it was submitted that the adverse certification provided by UNSW on 11 March 2013 should not have been accepted as evidence that the Applicant had not complied with cond.8202(3)(a) since the Minister, in the letter of 10 May 2013, had exercised his discretion not to cancel the First Visa because he was satisfied that UNSW had not reported in accordance with the National Code and the ESOS Act.
This Ground is, in my view, misconceived and must be rejected.
First, in connection with student visas and cond.8202, there was no obligation on either the Delegate or the Tribunal to seek to go behind the certificate issued by UNSW. Once such a certificate issues, which is valid on its face, there is no role for the Delegate or the Tribunal to look behind it: see Minister for Immigration v Yu (2004) 141 FCR 448 and Patel v Minister for Immigration (2012) 206 FCR 384.
In other words, the Tribunal was obliged to accept the adverse certification from UNSW on its face. The adverse certification was, for practical purposes, made conclusive for the purposes of the criteria by the Regulations: see Casse v Minister for Immigration [2013] FCA 1007 and Singh v Minister for Immigration [2015] FCA 439.
Whilst the Minister, in his letter of 10 May 2013, had indicated that he had made a decision not to cancel the First Visa for the reasons there given, this did not negate the necessity for the Applicant, in her application for the Second Visa, to show compliance with the requirements of the Regulations and cond.8202, or otherwise have the effect that she was to be taken as having complied with cond.8202. This is the effect of the decisions of Flick J in Ahmed v Minister for Immigration (2015) 233 FCR 485 and Mohammed v Minister for Immigration [2015] FCA 1060.
In Ahmed (supra), the Applicant’s Student (Temporary) (Class TU) (subclass 573) visa had been automatically cancelled because his education provider had certified that he had not achieved satisfactory course attendance, but that cancellation was subsequently revoked by the Minister under s.137L of the Act on the basis that his non-attendance was due to exceptional circumstances beyond his control.
In Mohammed (supra), the Applicant’s education provider had certified that he had not achieved satisfactory course conduct, but the Minister exercised his discretionary power under s.116 of the Act not to cancel Mr Mohammed’s student visa.
In both Ahmed and Mohammed it was argued that when the respective second student visa applications were made, the revocation of automatic cancellation pursuant to s.137L with respect to Mr Ahmed and the discretionary non-cancellation of Mr Mohammed’s first student visa meant that the continuing effect of any prior failure of each of them to achieve satisfactory course attendance or satisfactory course progress was spent, negated or otherwise healed, such that there was in truth compliance with cond. 8202.
However, in each case, Flick J rejected this argument and found that neither the revocation of cancellation of Mr Ahmed’s first student visa or the Minister’s discretionary decision not to cancel Mr Mohammed’s first student visa detracted from or otherwise qualified the necessity for each of them to comply with cond. 8202.
In Ahmed (supra) at [14]-[16] Flick J said as follows:
14. On the facts of the present case, the education provider had certified that Mr Ahmed had not achieved a satisfactory course attendance. The cancellation of his visa was “automatic“; the cancellation was effected “by force of“ s 137J. And cl 573.235 required compliance with each of the conditions to which a visa is subject: cf Montero v Minister for Immigration and Border Protection [2014] FCAFC 170 at [27]–[32], (2014) 229 FCR 144at 149–150 per Flick J (Allsop CJ and Logan J agreeing).
15. But the fact that the cancellation of his visa had been revoked pursuant to s 137L had the consequence, Counsel for Mr Ahmed contended, that the Appellant satisfied the requirements of cl 573.235 and that the decision of Heerey and Sundberg JJ in Jayasekara should be distinguished. The manner in which Mr Ahmed was said to have complied with cl 573.235 was essentially advanced in a number of ways, namely:
· the revocation of the cancellation decision had the consequence that the continuing effect of any prior failure to satisfy course attendance requirements was “spent“;
· the consequence of the decision to revoke the cancellation decision was such that Mr Ahmed should be deemed to have “substantially complied“ with the conditions of his student visa; and/or
· cl 573.235 should be construed as subject to a necessary implication that permitted students who had successfully invoked s 137L to now satisfy the requirements of that clause.
These may not be the only ways in which the proposition was sought to be advanced.
16. However the proposition is expressed, it is rejected. Section 137P, it is respectfully concluded, provides for the “effect of revocation“. That “effect” is that “the visa is taken never to have been cancelled under section 137J“. But that is the only “effect” that flows from the revocation of the automatic cancellation of a visa pursuant to s 137J. Section 137P does not provide that a further “effect” of the revocation of a cancellation decision is that a student who has failed satisfactorily to attend a course is (for example) “taken“ to have complied with that condition.
Finally, in Montero v Minister for Immigration (2014) 315 ALR 222 Flick J (with whom the Chief Justice and Logan J agreed) pointed out that the powers of cancellation or to grant a visa are different. At 228 ([37]) his Honour said:
37. The two powers — be it of cancellation or grant — are not, of course, totally comparable; they merely overlap in the manner in which they operate. Greater discretionary flexibility may be available when exercising the power conferred by s 116 to cancel a visa than when exercising the discretionary power to grant a fresh visa. Even total noncompliance with a condition may not necessitate cancellation of a visa; but noncompliance with one condition may preclude the granting of a visa in conformity with cl 3004(e).
In my opinion, Ground 1 must be rejected.
Ground 2
Ground 2 (omitting particulars) is as follows:
The second respondent made jurisdictional errors by having asked itself wrong questions in determining whether the applicant had met the requirements of cl.572.235 of Schedule 2 to the Migration Regulations and having failed to perform its statutory duties fully.
As amplified in oral argument I take this second ground as being in substance an assertion that the Tribunal had wrongly construed and applied cl.572.235 as engaging with and requiring compliance with each and every condition to which the First Visa was subject, whereas the Tribunal ought rather to have found that cl.572.235 did not require substantial compliance with all conditions applying to the First Visa.
In my view, Ground 2 is contrary to authorities and decisions binding on this Court.
First, neither cl.572.235 nor cond.8202(3) is invalid or void for uncertainty. There is no decision which construes cl.572.235 as having been complied with in circumstances where an adverse certificate has been issued, and decisions of both the Federal Court and this Court have proceeded upon the basis that the condition may lawfully be imposed: see Flick J in Mohammed (supra) at [16] and Flick J in Ahmed (supra) at [20].
Second, cl.572.235 requires substantial compliance with each and every condition to which the relevant visa is subject, and non-compliance with one such condition is conclusive of an inability to satisfy or meet with substantial compliance: see Montero (supra); Peng v Minister for Immigration (2000) 105 FCR 63 and Jayasekara v Minister for Immigration (2006) 156 FCR 199.
In my view, Ground 2 also therefore fails.
Disposition
I cannot discern any jurisdictional error in the Tribunal’s decision and the Application should be dismissed with costs in favour of the Minister.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dowdy.
Date: 26 May 2016
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