the appeal
18 On 11 March 2016, the appellant filed a Notice of Appeal in this Court. The grounds of appeal are meaningless. However, the appellant appeared at the hearing of the appeal and was assisted where necessary by a Bengali interpreter. In substance, he raised the question how he could have been found to have been in breach of his previous visa when the officer of the Department had found that there were no grounds to cancel that visa. The appellant again applied for an adjournment of the appeal to allow him to arrange for legal representation.
19 It is convenient first to consider whether the Federal Circuit Court was correct in concluding that the appellant does not have an arguable case. As the appellant did not have legal representation, the Court has scrutinised the decision of the Federal Circuit Court to ensure that the appellant has not been prejudiced by not having had a lawyer.
20 Several arguments not raised in the Federal Circuit Court are therefore addressed immediately. It is easy to understand the bewilderment of the appellant. He explained to the Departmental officer who was considering cancellation of his previous visa why he was not able to progress satisfactorily in his course. As a result, the Departmental officer decided not to cancel the visa, stating that there were no grounds to do so.
21 To imagine then that the non-compliance has been excused seems logical. It would seem to follow that the excused non-compliance could not then become a non-compliance which would justify the refusal of a subsequent visa. One way that result would be less likely would be to read the requirement in clause 572.235 for substantial compliance with the conditions that apply to a visa as applicable to the conditions in total rather than to each condition.
22 However, such a construction is foreclosed by the judgments in Montero v Minister for Immigration and Border Protection [2014] FCAFC 170 (Montero) in materially similar circumstances. For the grant of a visa in that case, clause 3004(e) required Mr Montero to have "complied substantially with the conditions that apply or applied to" the grant of his previous student visa. Mr Montero had not complied with some of the conditions of that visa, but he argued that it was sufficient if he had substantially complied with the conditions as a whole.
23 This construction was rejected. Flick J, with whom Allsop CJ agreed at [1] and Logan J also agreed, but expressed certain reservations at [4], said at [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.
24 In Montero, the Court referred to the lack of symmetry between the exercise of the power to cancel a visa and the power to grant a visa. Flick J, with whom Allsop CJ and Logan J agreed, said at [33]-[37]:
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).
[Emphasis added]
The final sentence refers precisely to the circumstances of the present case.
25 The Tribunal and the Federal Circuit Court did not consider whether, on its proper construction, cl 572.235 looked to substantial compliance with all of the conditions of the previous visa as a whole, or to substantial compliance with each of the conditions of the previous visa. However, in view of the judgments in Montero, the approach taken in fact by the Tribunal, to assess substantial compliance by reference to each condition, was correct.
26 Montero also supports the view of the Tribunal that the power to cancel and the power to grant a visa operate independently. The Tribunal and the Federal Circuit Court were correct, for the reasons which they gave, to reject the appellant's argument that the Minister was estopped from contending that the appellant had failed to comply with clause 8202. They were also correct that the exercise of power to cancel a visa was independent of the exercise of a power to grant a visa.
27 For the above reasons, the Federal Circuit Court was correct to conclude that there was no arguable case available to the appellant, and that consequently there would be no utility in granting the adjournment. The Federal Circuit Court was therefore correct to dismiss the application for an adjournment and then to dismiss the application for review.
28 As the appeal is bound to fail, the application for an adjournment is refused. Further, the appeal is dismissed.
29 The Minister applied for an order that the appellant pay the costs of the appeal, on the basis that costs usually follow the event. However, the circumstances of the present case are unusual. The appellant explained that when he received the notice of intention to cancel his visa, he was willing to accept that he had not complied with his visa conditions, and that his visa should accordingly be cancelled. It was only when the Departmental officer did not cancel the visa that the appellant concluded that the non-compliance had been excused. The appellant said that his application to the Federal Circuit Court and appeal to this Court were brought under that misapprehension caused by the decision of the Departmental officer. In these circumstances, fairness is best served by no order being made as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.