THE APPEAL
26 As noted above, the first ground is in the same terms as the second ground considered by the primary judge (at [28]-[37]) and rejected. At [35] of his Honour's reasons, the primary judge said:
Further, the fact that the automatic cancellation of the [appellant's] Second Visa was subsequently revoked by the Minister under s.137L of the Migration Act does not affect, detract or otherwise qualify the necessity for the [appellant] to comply with the requirements of the Migration Act and the Regulations. The fact that the Minister exercised a discretion to allow the [appellant] to continue to study until the expiration of the Second Visa on 3 September 2013 is both logically and practically unrelated to the issue of whether the [appellant] should have been granted a third student visa after expiry of the Second Visa.
27 In my view, the automatic cancellation of the Second Visa being revoked by the Minister was not a relevant factor to the Tribunal's consideration of whether or not Ms Grewal met the requirements set out in cl 572.235. The same or similar argument was considered and rejected by Flick J in Ahmed (at [16]-[17]) where his Honour said:
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.
17 There is, with respect, no reason to construe cl 573.235 in any manner other than according to the natural and ordinary meaning that the words convey. Section 139P does not change the manner in which that clause is to be construed. And there is no reason to construe that clause as subject to some implication of further unspecified words qualifying the natural and ordinary meaning of the words employed. Nor is there any statutory or regulatory mandate to deem a student who has not satisfactorily attended a course to have done so.
28 Further, in relation to this argument, there is no scope for the Tribunal to look behind the issue of the certification by the education provider of non-compliance by Ms Grewal with the visa conditions or, indeed, to evaluate Ms Grewal's personal circumstances in determining whether or not she had complied with cl 572.235. This proposition has also been debated and rejected in Patel, where Collier J explained (at [52]-[53] and [56]-[57]):
52 It is clearly for the education provider to form a view as to whether the visa holder has complied with attendance or academic requirements, and notify the Secretary of the Department of Education, Employment and Workplace Relations in relevant circumstances. The act of notification pursuant to Standards 10 and 11 of the National Code and s 19 of the ESOS Act to notify the Secretary constitutes a certification, which itself constitutes the breach of condition 8202 by the holder of the visa. As the Minister properly submits, this is because the visa holder is required by condition 8202(1) to meet the requirements of condition 8202(3), which requires (in summary) that a visa holder not be subject to a certificate of this type.
53 The federal magistrate analysed in considerable detail the statutory regime, including the interaction of the National Code, the ESOS Act and condition 8202 (cf [35]-[49] of his Honour's judgment). I respectfully note and adopt his Honour's reasoning in this respect. Importantly his Honour noted s 40 of the ESOS Act, which provides:
The only legal effects of the National Code are the effects that this Act expressly provides for.
…
56 ... However the structure of the Migration Act means that, as found by the federal magistrate, the decision the subject of review by the Tribunal is the decision of the Minister as to whether he was satisfied that there had been a breach of visa condition 8202. In this case the federal magistrate found that the Minister was so satisfied. …
57 This is not a case where the underlying decision of the University is susceptible to review by the Tribunal, and the Minister is required to go behind the certificate, or be on notice as to the nature of delegations and proper lines of authority within the education provider (compare by way of analogy comments of Davies J in Manokian v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 632 at 633; Moore J in Minister for Immigration and Multicultural and Indigenous Affairs v Yu (2004) 141 FCR 448 at [30]; and Blanchard, McGrath and William Young JJ in the Supreme Court of New Zealand in McNamara v Auckland City Council (2012) 35 TCL 19/5 at [155]-[156]).
(Emphasis in original)
29 The emphasis in condition 8202 is, relevantly, in certification of non-compliance under s 19 of the ESOS Act. The emphasis is not on consideration of whether Ms Grewal as an objective fact has attained satisfactory course progress. This topic has also been reviewed in Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 156 FCR 199. See also Casse (at [15]) where North J said:
Condition 8202 was amended by the Migration Amendment Regulations 2007 (No. 5) (Cth). The explanatory statement for the amending regulations explained that the amendment aimed to put the assessment of educational progress into the hands of the education provider as follows:
[The] proposed amendment to student visa condition 8202 reflects changes to the Education Services for Overseas Students Act 2000 (the ESOS Act) and the National Code 2007. The changes to the ESOS Act and the National Code 2007 were made after a comprehensive evaluation...The evaluation found that the issue of a student's course progress and attendance is more appropriately handled by DEST and education providers and that the Department's role should be limited to migration matters.
This change will mean that the Minister will no longer be required to assess whether a student is meeting their attendance requirements.
If an education provider certifies that a student has not achieved satisfactory course progress or attendance and reports the student, the DIAC delegate will be required to initiate cancellation action of the visa, unless exceptional circumstances can be demonstrated that the visa should not be cancelled. These exceptional circumstances will be outlined in a section 499 direction.
(emphasis added)
30 As to the argument that the Tribunal wrongly construed the clause, this argument has also been advanced and rejected by the Full Court in Montero (at [27]-[33]) where Flick J, with whom Allsop CJ and Logan J agreed, said:
27 Non-compliance with cl 8104, on the respondent Minister's case, was conclusive of Mr Montero's eligibility. Clause 3004(e) required "substantial compliance" with each of the conditions of Mr Montero's student visa. On Mr Montero's case, the proper construction of cl 3004(e) merely required Mr Montero to substantially comply with "the conditions" taken as a whole. He contended that the extent to which an applicant had complied with each of the conditions had to be considered as guiding the overall assessment of whether there had been "substantial compliance" with the conditions.
28 The construction adopted by the Federal Circuit Court Judge and advanced by the respondent Minister is to be preferred.
29 The principal reason for this conclusion is that that result is the natural and ordinary meaning conveyed by cl 3004(e). It was accepted by Senior Counsel for Mr Montero that had the word "substantially" not been included within cl 3004(e), the clause would require compliance with each of the conditions applying to "the last of any substantive visas" held by an applicant. If that word had not appeared in cl 3004(e), an applicant would be required to comply with each condition. The inclusion of the word "substantially" does not dictate any different conclusion. All that the presence of that word adds to the meaning of cl 3004(e) is that there must be "substantial compliance" with "the conditions" - not one or other of those conditions, but "substantial compliance" with "the conditions". The word "substantial" simply identifies the extent of compliance; it does not affect the identification of "the conditions" which must be complied with.
30 This construction does not require any words to be "read into" cl 3004(e). The submission advanced on behalf of Mr Montero that such a construction involves reading cl 3004(e) such that it would effectively read "substantial compliance 'with each of' the conditions", is rejected.
31 This construction is consistent with earlier decisions of single judges of this Court regarding comparable provisions. The question first relevantly emerged before Hely J in Peng v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 63. Mr Peng had been granted a student visa which was subject to a number of conditions, including a condition that he be enrolled in a registered course and that he attend at least 80% of the classes and tutorials. Mr Peng failed to attend that percentage of classes and tutorials. He arrived in Australia two days before his visa was due to expire. Upon arrival in Australia he nevertheless applied for a temporary student visa. One criterion for such a visa, imposed by cl 560.213 of the Migration Regulations at that time, was that he had "complied substantially with the conditions" of his earlier visa. In concluding that substantial compliance with each and every condition was required, Hely J wrote:
"Whether substantial compliance with each visa condition is required
[15] Clause 560.213 requires substantial compliance with the conditions to which the visa is subject. The applicant submits that the clause should not be construed as if it required substantial compliance with each and every condition to which the visa is subject, when, by its terms, all that is required is that there be substantial compliance with the conditions taken as a whole. Thus, for example, if a visa was issued upon four conditions and three were complied with, but one was not complied with at all, a Tribunal of fact could nonetheless conclude that there had been substantial compliance with the conditions, as three out of four were met.
[16] I do not think that the clause should be construed in this way. A requirement that the applicant shall have complied substantially with the conditions to which a visa is subject, as a matter of ordinary English, conveys that substantial compliance with each of those conditions is required. That view gains some reinforcement from s 116(1)(b) of the Migration Act 1958 (Cth), which recognises the importance of individual visa conditions."
(Emphasis in original.)
See also: Weerasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 261 at [12] per Ryan J.
32 This construction of cl 3004(e), it is further considered, promotes the object and purpose of the Migration Act 1958 (Cth) and the object and purpose of imposing conditions on visas. As is apparent from the terms of each of the conditions imposed upon Mr Montero's student visa, each condition is directed to - and serves a purpose different from - each of the other conditions.
33 This construction of cl 3004(e) is consistent with a purposive approach to the construction of the clause. The phrase "substantial compliance" was presumably employed by the Parliamentary draftsman with the intention of permitting a degree of latitude or flexibility when exercising the power to grant a new visa.
(emphasis added)
31 It may be that in some cases - possibly the present - such an outcome could work a perceived injustice on a visa applicant. Nonetheless, this is the way in which the Regulations are cast and it is not a factor relevant to the construction of the regulation into which the Court may permissibly intervene: see Casse (at [17]).