Montero v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGES: ALLSOP, LOGAN J AND FLICK J DATE: 12 December 2014 PLACE: SYDNEY

logan j: 2 I have had the advantage of reading in draft the reasons of Flick J. I agree generally with his Honour's reasons and thus agree that the appeal must be dismissed. 3 I wish to add the following further observations. 4 I am not, with respect, at all convinced that, "as a matter of ordinary English", the words "substantially complied with … the conditions that … applied to" can only convey that substantial compliance with each of those conditions is required: cf Peng v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 63 at [16] (Peng). That they can admit of meaning compliance with some but not each of a number of conditions is demonstrated by Re News Corporation Limited (1993) 11 ACLC 733 (Hill J) and, before then, Re U Drive Pty Ltd (1987) 5 ACLC 117, to each of which we were helpfully referred by counsel for Mr Montero. 5 This case offers yet another illustration of the importance of "examining of the context of the provision that is being construed": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]. 6 In the two corporations cases mentioned, the construction afforded to the words in question was referable to the context in which they appeared and thus to a discernible composite end purpose. In that different context, non-compliance with a particular condition might still mean, viewing the facts and the extent of compliance as a whole that the particular end purpose was served such that there was "substantial compliance". 7 Particular words or phrases can have about them an ambiguity or at least range of possible meanings such that their particular meaning can only be resolved by a consideration of context and purpose. For example, in Canterbury Municipal Council v Moslem Alawy Society Ltd (1987) 162 CLR 145 it was the town planning context in which the phrase "place of public worship" appeared which dictated that it be construed as meaning nothing more than congregational (as opposed to individual) worship, rather than worship open to access by the public without let or hindrance, which was then and remains its settled meaning in the different context of exempting from taxation or rating liabilities for public beneficial ends a particular class of land used for such a purpose: Joyce v Ashfield Municipal Council [1975] 1 NSWLR 744; Jensen v Brisbane City Council [2006] 2 Qd R 20 (special leave refused, Jensen v Brisbane City Council [2006] HCA Trans 344). 8 As Flick J demonstrates, the context in which the words are found in the Migration Regulations 1994 (Cth) is very different from that found in the two corporations cases. The context also includes the discretionary power of cancellation in s 116 of the Migration Act 1958 (Cth), engaged when there is non-compliance with the "conditions" of a visa. It is that different context which dictates that the meaning favoured in Peng and later single judge decisions is to be preferred. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate: Dated: 12 December 2014 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 552 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGES: ALLSOP CJ, LOGAN J & FLICK J DATE: 12 DECEMBER 2014 PLACE: SYDNEY

FLICK J 9 The Appellant, Mr Renee Sorenio Montero, was born in the Philippines in 1977. 10 From 2009 through to 20 June 2011 he held a student visa. On 23 June 2011 his application for an Employer Nomination (Residence) (Class BW) visa was received by the Respondent Minister. 11 In February 2012 Mr Montero was advised that his application had been refused. A delegate of the Minister concluded that Mr Montero did not satisfy cl 857.213(b) of the Migration Regulations 1994 (Cth) ("Migration Regulations"). That clause provided that an applicant for an Employer Nomination (Residence) Class BW visa in Mr Montero's circumstances must have a diploma or other higher qualification unless exceptional circumstances applied. The delegate was not satisfied (inter alia) that Mr Montero had a diploma or a higher qualification that was relevant or that there were any exceptional circumstances. 12 In March 2012 Mr Montero sought review of the delegate's decision by the Migration Review Tribunal. In April 2013 that Tribunal affirmed the decision not to grant Mr Montero the visa sought. The Tribunal's reasoning differed to the delegate's, relying in substantial part on cl 3004 of Schedule 3 to the Migration Regulations. That clause, as then in force, provided as follows: If the applicant: (a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or (b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa; the Minister is satisfied that: (c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and (d) there are compelling reasons for granting the visa; and (e) the applicant has complied substantially with: (i) the conditions that apply or applied to: (A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and (B) any subsequent bridging visa; or (ii) the conditions that apply or applied to: (A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and (B) any subsequent bridging visa; and (f) either: (i) in the case of an applicant referred to in paragraph (a) - the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or (ii) in the case of an applicant referred to in paragraph (b) - the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and (g) the applicant intends to comply with any conditions subject to which the visa is granted; and (h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia. 13 The Tribunal concluded that because Mr Montero's student visa expired on 20 June 2011 and his application was not lodged until 23 June 2011 he was not the holder of a substantive visa at the time of his application. The Tribunal went on to hold that Mr Montero: did not satisfy a requisite condition, namely the condition in cl 3004(c) of Schedule 3 to the Migration Regulations, because the fact that he did not hold a substantive visa was not because of factors beyond his control; and he did not satisfy the condition in cl 3004(e) because he had not substantially complied with the conditions of his previous student visa. Given these conclusions, the Tribunal did not consider it necessary to determine whether Mr Montero met the requirements of cl 857.213 of Schedule 2 to the Migration Regulations. 14 An application seeking judicial review of the Tribunal's decision was filed with the Federal Circuit Court of Australia. Before that Court, Mr Montero maintained that the Tribunal had committed two errors, namely: the Tribunal's approach manifested an erroneous understanding of the expression "because of factors beyond the applicant's control", as employed in cl 3004(c); and the Tribunal had misconstrued the expression "complied substantially", as employed in cl 3004(e). The Federal Circuit Court concluded that: although the Tribunal had recognised the correct meaning to be given to the phrase, "beyond the control of a person", it had erred in the application of that expression to the facts; but that: the Tribunal had correctly interpreted and applied cl 3004(e)(ii). The Federal Circuit Court proceeded to dismiss the application: Montero v Minister for Immigration & Anor [2014] FCCA 946. 15 Mr Montero now appeals to this Court. His grounds of appeal, in summary form, maintain that the Federal Circuit Court erred: in construing cl 3004(e)(ii) as requiring an assessment of whether there had been substantial compliance with "each of" the conditions of Mr Montero's previous visa; and in failing to find that the Tribunal misconstrued and/or misapplied cl 3004(e)(ii). 16 On 22 August 2014, a Judge of this Court made an order that the appeal be referred to a Full Court pursuant to s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth): Montero v Minister for Immigration and Border Protection [2014] FCA 1096. 17 The narrow question posed for resolution by this Court is the correct construction of cl 3004(e)(ii). 18 The appeal is to be dismissed.

THE MIGRATION REGULATIONS 19 Except to those who immerse themselves within the mysteries of the Migration Regulations, the detail of those provisions remains impenetrable. 20 With the assistance of Senior and Junior Counsel for both Mr Montero and the Respondent Minister, those mysteries have - to some extent - been exposed to scrutiny. 21 Given the expiration of Mr Montero's student visa, it was cl 3004(e)(ii) which formed the focus of the appeal. 22 For the purposes of cl 3004(e)(ii), the "conditions" that applied to his student visa - being "the last … substantive visa held by" Mr Montero - were derived from cl 572.6 of Schedule 2 to the Migration Regulations. Clauses 572.616 and 572.617 of Schedule 2 identified the conditions, relevantly, as being the conditions found in cls 8104, 8501 and 8516 in Schedule 8 to the Migration Regulations. The condition in cl 8104 limited the number of hours that the visa holder was able to work. The condition in cl 8501 required the visa holder to maintain adequate health insurance while in Australia. The condition in cl 8516 required the visa holder, in substance, to continue to meet the initial eligibility criteria for the grant of the visa. 23 A reference to these conditions, it may be noted, appeared on the face of the visa stamped in Mr Montero's passport. Although it may be accepted that it was Mr Montero's responsibility to ensure that he was familiar with the content of each of the relevant conditions, it may be queried whether Mr Montero could readily have accessed the relevant Schedules to the Migration Regulations (as in force at the relevant time) to inform himself about what those requirements in fact were. Whether or not a copy of these conditions was provided to Mr Montero at the time his student visa was granted was left unanswered during the hearing of the appeal. For present purposes it does not matter whether the content of each condition, as opposed to a mere reference to the condition numbers appearing on the face of the visa, was expressly drawn to his attention. There is no question which arises regarding whether a visa condition must be drawn to a visa-holder's attention. Central to this appeal is whether the Federal Circuit Court erred in interpreting the requirements of "substantial compliance". 24 For present purposes, matters relevant to the resolution of that expression included: the disparate and distinctive content of each of the conditions; and the fact that the conditions applicable to the grant of the student visa were prescribed by the Migration Regulations in force at the time and not left to the discretion of the delegate granting the visa.

CLAUSE 3004(e) 25 Clause 3004(e) requires, in the present case, that the Minister (or his delegate) be satisfied that Mr Montero had "complied substantially with … the conditions that … applied to" the grant of his student visa. 26 The Tribunal found, and it was common ground on appeal, that Mr Montero had not complied with - let alone substantially complied with - the condition in cl 8104. 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] FCA 1672, (2001) 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. See also: Weerasinghe v Minister for Immigration & Multicultural & 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) ("Migration Act") 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. 34 Non-compliance with the literal terms or "conditions" of a visa, it may readily be assumed, was not intended to attract fatal consequences - whether the analysis was to be conducted for the purposes of either cancelling a visa or refusing to grant a fresh visa. 35 A visa holder who fails to comply with the "conditions" of a visa is liable to have his visa cancelled: Migration Act s 116. That power is conferred in discretionary terms and is to be exercised by reference to facts known at the time of the decision. Even where non-compliance with a condition of a visa is accepted, the Minister retains a discretion to cancel the visa or to leave it on foot. Presumably the seriousness and importance of the condition and the gravity of the circumstances surrounding the reasons for non-compliance may be relevant to the Minister when exercising the discretion. In circumstances where a visa holder may have failed to strictly comply with the terms of a particular condition, the fact that he may have "substantially complied" with the object and purpose sought to be achieved by the condition, would equally be relevant to the exercise of the discretion. 36 Loosely comparable was the exercise of the power to grant a fresh visa, albeit in circumstances where there had not been strict compliance with the "conditions" but only "substantial compliance". 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 non-compliance with a condition may not necessitate cancellation of a visa; but non-compliance with one condition may preclude the granting of a visa in conformity with cl 3004(e). 38 Common to each power, however, is the legislative intention to retain some degree of flexibility. The critical aspect for present purposes is the Parliamentary drafter's intent which can be discerned from those provisions to confer some flexibility upon decision-makers in the event that the strict terms of a visa condition are not complied with. 39 The lack of symmetry - or "coherence" - between the exercise of the power to cancel a visa and the power to grant a visa occasions no reason to question the conclusion as to the correct construction of cl 3004(e). That clause exposes a legislative intent that there be compliance with the "conditions" considered to be appropriate. The "conditions" imposed on Mr Montero's student visa were not "conditions" selected by a delegate specific to Mr Montero's particular circumstances. Each of the "conditions" was imposed by virtue of the operation of the Migration Regulations themselves. And those regulations are subject to potential legislative disallowance. It is not left to the Minister or his delegate to determine whether or not non-compliance with one or other of the "conditions" could be "overlooked" or "excused". Each of the "conditions" was presumably considered by the legislature to serve a separate and discrete objective. The limited scope of the administrative discretion entrusts a decision-maker with the power to determine that there may not have been strict compliance with any one condition but that there had nevertheless been "substantial compliance" with all of the conditions. 40 A contrary conclusion would place a decision-maker in an invidious position. He would be forced to weigh the comparative importance of one condition with the comparative importance of other conditions. This requires value judgments about the relative importance of the objectives that those conditions are imposed to achieve. How the decision-maker would form any rational assessment as to each condition's relative importance or priority was not explained during oral submissions. Although such an approach to interpretation may give greater flexibility to a decision-maker when deciding whether a further visa should be granted, the cost of that greater flexibility would be allowing the decision-maker to excuse total non-compliance with one condition in the face of "substantial compliance" with the remaining conditions. Flexibility does not require such a price to be exacted. 41 The reliance by Senior Counsel for the Appellant on Re News Corporation Limited (1993) 11 ACLC 733 was misplaced. In that case the issue was whether there had been "substantial compliance" with s 205(10) of the Corporations Law. Section 205(10) stated that nothing in s 205(1) prohibited the giving of financial assistance by a company for the purchase of shares if a lengthy series of matters set forth in s 205(10) were satisfied. Section 205(11) provided as follows: Where, on application to the Court by a company, the Court is satisfied that the provisions of subsection (10) have been substantially complied with in relation to a proposed giving by the company of financial assistance of a kind mentioned in that subsection, the Court may, by order, declare that the provisions of that subsection have been complied with in relation to the proposed giving by the company of financial assistance. Three requirements set forth in s 205(10) had not been satisfied - namely, s 205(10)(c), (10)(f) and (10)(e)). In nevertheless concluding that there had been "substantial compliance", Hill J drew upon earlier observations of Young J and observed (at 734): I am satisfied that in all other respects the company has complied with the provisions of s. 205(10). The question is whether I am satisfied, in the circumstances, that the provision of sub-sec. (10) have been "substantially complied with". As Young J said in Re U Drive Pty Ltd (1987) 5 ACLC 117 at 119; (1986) 10 ACLR 565 at 567, the test is: "What must be considered is whether it can be said that the interested parties i.e. the shareholders, the debenture holders, the creditors and the Corporate Affairs Commission even though they have not received exactly what they should have received and subsec. (1) not being strictly complied with, have by the time the order is made sufficient material of almost exact equivalence to enable them to make the election as to whether or not to apply to the court under sec. 129(12) of the Code." Hill J expressed his conclusion as follows: Ultimately, it seems to me the matter is one of degree in a case such as the present, namely whether the compliance is such that it can fairly be said to be a substantial compliance. In this respect the solicitor for News Corporation Limited has taken me to each of the requirements relevant in the case of the present company to show that but for the failure to comply in every respect s 205(10) has been complied with and the submission is then made that that compliance was substantial. 42 Unlike the conditions imposed on Mr Montero's student visa, each of the requirements imposed by s 205(10) were directed to a composite end purpose and each were directed to a discrete subject matter.

CONCLUSIONS 43 The appeal should be dismissed. 44 Senior Counsel for the Appellant accepted that the "usual" rule as to costs should apply, namely that costs should follow the event. 45 The Appellant should pay the costs of the Respondent Minister. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.