Gao v Minister for Immigration and Border Protection

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.

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.