FEDERAL COURT OF AUSTRALIA

Grewal v Minister for Immigration and Border Protection [2016] FCA 1229

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The appellant, Ms Grewal, appeals from a judgment of the Federal Circuit Court of Australia by which her application for judicial review was dismissed. That application pursuant to s 476 of the Migration Act 1958 (Cth) pertained to a decision of the Administrative Appeals Tribunal (then Migration Review Tribunal). By its decision, the Tribunal affirmed a decision of the delegate for the Minister for Immigration and Border Protection to refuse to grant Ms Grewal a (third) Student (Temporary) (Class TU) (Subclass 572) Visa.

GROUNDS OF APPEAL

2    Ms Grewal contends, in substance, that the primary judge erroneously considered that there must be compliance with each and every condition to which the Visa was subject, as distinct from requiring substantial compliance with the several conditions attaching to the Visa. This is particularly so where compliance with a particular condition was beyond the control of a visa holder. She also contends that the Tribunal similarly misconstrued the relevant clause.

3    Ms Grewal, who appeared in person on her appeal, did not expand upon these grounds, but emphasised that she had done everything that was required by the course in which she was enrolled and she was keen to commence training at university as a nurse.

RELEVANT BACKGROUND

4    Ms Grewal, at the time of judgment in the Federal Circuit Court, was aged 29 years. She is a citizen of the Republic of India, and born on 2 January 1987. She entered Australia on 21 September 2008 as the holder of student visa, due for expiry on 30 August 2012. On 7 November 2012, she was granted a second student visa TU572, due to expire on 3 September 2013 (Second Visa).

5    The Second Visa was subject to a continuing condition, being prescribed condition 8202 of Sch 8 to the Migration Regulations 1994 (Cth). That regulation required that her education provider not certify her as not achieving satisfactory course conduct.

6    On 3 September 2013, Ms Grewal applied for a Class TU Student (Temporary) Visa, which the delegate refused. The delegate explained that the refusal was based on the fact that during the period of the Second Visa, while Ms Grewal was enrolled as a student for a Certificate IV in accounting at New Cambridge College Sydney, Cambridge College (as education provider) had certified to the Minister on 13 February 2013 for the purpose of condition 8202(3), that pursuant to s 19 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) Ms Grewal had not achieved satisfactory course progress. (On the same day as giving the s 19 certificate, Cambridge College gave Ms Grewal a s 20 notice under the ESOS Act advising her that it had given the s 19 notice.) The delegate refused to grant Ms Grewal a subclass TU572 visa because she did not satisfy cl 572.235 of Sch 2 to the Regulations.

7    The delegate’s refusal was reviewed by the Tribunal. It, however, affirmed the decision of the delegate. The Tribunal concluded that because of the notice from Cambridge College, Ms Grewal could not satisfy the requirements of cl 572.235 of Sch 2 to the Regulations by reason of the certification by her education provider that she had not achieved satisfactory course progress for the purposes of condition 8202(3). Clause 572.235 required that she comply substantially with the conditions applying to the last of any substantive visa held by her, relevantly being the Second Visa.

RELEVANT LEGISLATIVE PROVISIONS

8    As noted by the primary judge, the relevant provisions of the Act were:

(a)    Section 29 of the Act which empowers the Minister to grant a non-citizen a visa to remain in Australia;

(b)    Section 31 of the Act which provides for prescribed classes of visas and the making of regulations prescribing criteria for a visa or visas of a specified class;

(c)    Section 41 of the Act which provides that the Regulations may specify that certain classes of visas may be subject to specified conditions;

(d)    Section 45 of the Act which requires that a non-citizen who wants a visa must apply for a visa of a particular class; and

(e)    Section 65 of the Act which requires that if, after considering a valid application for a visa, the Minister is satisfied that the criteria prescribed by the Act or Regulations have been satisfied, the Minister is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa.

9    Regulation 2.01 of the Regulations provides that for, the purposes of s 31 of the Act, the prescribed classes of visas are those set out in Sch.1 to the Regulations. Among the classes of visas set forth in Sch.1 is cl 1222, being a Student (Temporary) (Class TU) visa.

10    Clause 572.235 of Sch 2 of the Regulations provides that at the time of the decision an applicant for a student visa must have complied substantially with the conditions attaching to the prior visa held by them. Clause 572.235 is expressed as follows:

572.235

If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

(emphasis added)

11    The Second Visa was subject to a number of conditions, including condition 8202 (see reg 2.05, the definition of ‘condition’ in reg.1.03, and condition 8202).

12    Condition 8202 relevantly provides as follows:

8202

(1)    The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

(2)    A holder meets the requirements of this subclause if:

(a)    the holder is enrolled in a registered course; or

(b)    in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student—the holder is enrolled in a full time course of study or training.

(3)    A holder meets the requirements of this subclause if neither of the following applies:

(a)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

(i)    section 19 of the Education Services for Overseas Students Act 2000; and

(ii)    standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

(b)    the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

(i)    section 19 of the Education Services for Overseas Students Act 2000; and

(ii)    standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007.

…

13    Section 19 of the ESOS Act provides (amongst other things) for the Secretary of the Department of Immigration to be notified of any breach of any prescribed condition of a student visa by the applicable education provider. Section 20 provides for the giving of written notice by the applicable education provider to a student of any breach of a prescribed condition of a student visa.

14    Section 19 and s 20 in full are as follows:

19    Giving information about accepted students

(1)    A registered provider must give the following information within the applicable number of days after the event specified below occurs:

(a)    the name and any other prescribed details of each person who becomes an accepted student of that provider;

(b)    for each person who becomes an accepted student—the name, starting day and expected duration of the course for which the student is accepted;

(c)    the prescribed information about an accepted student who does not begin his or her course when expected;

(d)    any termination of an accepted student’s studies (whether as a result of action by the student or the provider or otherwise) before the student’s course is completed;

(e)    any change in the identity or duration of an accepted student’s course;

(f)    any other prescribed matter relating to accepted students.

(1A)    The applicable number of days is:

(a)    if the accepted student is less than 18 years old and the information is of a kind referred to in paragraph (1)(c) or (d)—14 days; or

(b)    otherwise - 31 days.

(2)    A registered provider must give particulars of any breach by an accepted student of a prescribed condition of a student visa as soon as practicable after the breach occurs.

(2A)    A registered provider must give particulars of a breach by a student under subsection (2) even if the student has ceased to be an accepted student of the provider.

(3)    A registered provider must give the information required by this section by entering the information in the computer system established by the Secretary under section 109.

Note 1:    If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

Note 2:    It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.

Unincorporated registered providers

(4)    If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must give the information as required under this section.

(5)    A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.

Penalty:    60 penalty units.

(6)    An offence under subsection (5) is an offence of strict liability.

Note:    For strict liability, see section 6.1 of the Criminal Code.

20    Sending students notice of visa breaches

(1)    Subject to subsection (4A), a registered provider must send an accepted student of the provider a written notice if the student has breached a prescribed condition of a student visa.

Note 1:    If a registered provider breaches this section, the ESOS agency for the provider may take action under Division 1 of Part 6 against the provider.

Note 2:    It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.

(1A)    A registered provider must send a notice to a student under subsection (1) even if the student has ceased to be an accepted student of the provider.

(2)    The registered provider must send the notice as soon as practicable after the breach.

(3)    The notice must be in a form approved by the Secretary of the Immigration Minister’s Department.

(4)    The notice must:

(a)    contain particulars of the breach; and

(b)    state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of making any submissions about the breach and the circumstances that led to the breach; and

(c)    state that the student must present photographic identification when so attending; and

(d)    set out the effect of sections 137J and 137K of that Act.

(4A)    A registered provider must not send a notice under subsection (1) on or after the day this subsection commences.

Unincorporated registered providers

(5)    If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.

(6)    A registered provider, or the principal executive officer of a registered provider that is an unincorporated body, who fails to comply with this section commits an offence.

Penalty:    60 penalty units.

(7)    An offence under subsection (6) is an offence of strict liability.

Note:    For strict liability, see section 6.1 of the Criminal Code.

15    Against that background of registered provider obligations, there are then relevant sanctions in the Act pertaining to visa cancellation. They include:

137J    Non complying students may have their visas automatically cancelled

(1)    This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice).

Note 1:    Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen’s visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach.

Note 2:    Under subsection 20(4A) of that Act, a registered provider must not send a notice on or after the day that subsection commences.

(2)    The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:

(a)    the non-citizen complies with the notice; or

(b)    the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:

(i)    in Australia; or

(ii)    approved for the purposes of this paragraph by the Minister by notice in the Gazette;

makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.

137K    Applying for revocation of cancellation

(1)    A non-citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation.

(2)    A non-citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J.

(3)    In addition to the restriction in subsection (2), a non-citizen who is in the migration zone and who has been detained under section 189 cannot apply for revocation later than:

(a)    2 working days after the day on which section 194 was complied with in relation to his or her detention; or

(b)    if he or she informs an officer in writing within those 2 days of his or her intention to so apply—within the next 5 working days after those 2 working days.

(4)    A non-citizen who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation.

(5)    In any case, a non-citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.

137L    Dealing with the application

(1)    On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:

(a)    that the non-citizen did not in fact breach the relevant visa condition or conditions; or

(b)    that the breach was due to exceptional circumstances beyond the non-citizen’s control; or

(c)    of any other matter prescribed in the regulations.

(2)    However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.

(3)    A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.

(emphasis added)

…

137P    Effect of revocation

(1)    If the cancellation of a visa is revoked under section 137L or 137N, the visa is taken never to have been cancelled under section 137J.

…

(3)    However, a revocation under section 137L or 137N does not otherwise limit or affect any other power to cancel the visa under this Act.

(4)    In particular, a different or later breach of a condition of the visa can be a ground for cancelling the visa under section 116.

…

(emphasis added)

BEFORE THE FEDERAL CIRCUIT COURT

16    Ms Grewal relied upon two grounds in her amended application argued before the primary judge. The first was that the Tribunal had misconstrued and misapplied the law and exceeded its jurisdiction. The second ground was that the Tribunal had misconstrued and misapplied cl 572.235 of Sch 2 of the Regulations. (The grounds in the present appeal substantively mirror the second ground before the primary judge.)

17    As to the first ground, his Honour observed that the premise of the ground was that the Tribunal had accepted that the s 19 notice had been vitiated by a denial of statutory procedural fairness. That breach was said to arise as a consequence of a failure by the education provider to follow certain procedures relating to certification pursuant to s 19 of the ESOS Act. Those procedures are set out in the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. Specifically, before the primary judge, Ms Grewal, through counsel, relied upon [9] and [11] of the Tribunal’s decision record, which were in the following terms:

9.    During the hearing the [appellant] confirmed that she had been granted a student visa which was valid from 7 November 2012 until 3 September 2013, and that her education provider had certified her as not achieving satisfactory course progress on 13 February 2013. The [appellant] explained that she had been unhappy with the course provider at that time and on the same date as the certification, being 13 February 2013, she had advised her education provider that she wished to change providers, she had obtained a confirmation of enrolment from a new education provider, and she had informed the department of this. (The Tribunal notes that the [appellant’s] submissions are supported by the evidence provided in her written submissions.)

(emphasis added)

…

11.    The [appellant’s] agent submitted that the education provider in question had not followed the proper procedure in issuing the certification against the [appellant] on 13 February 2013, however the Tribunal explained but [sic] it could not go behind the process and consider what procedure had been undertaken, but instead must consider whether or not the [appellant] had been certified. The Tribunal made clear that it accepted the evidence provided by the [appellant], as it was supported by the documentation she had provided in her written submissions.

18    His Honour considered this submission and at [21]-[23] of his judgment said:

21.    I do not read the last sentences of [9] and [11] of the Tribunal’s Decision Record in the way that the [appellant] asserts they should be read and understood. The last sentence in parentheses in [9] is a statement by the Tribunal that the documents attached to the written submission from the migration agent, sent under cover of the 24 page letter to the Tribunal, supported the [appellant’s] submission that on 13 February 2013 she had advised Cambridge College that she wished to change education providers, had enrolled with a new education provider, being Apex Institute of Education Pty Ltd, and that on 12 February 2013 she had advised Cambridge College that she was leaving it.

22.    The last sentence of [11] of the Tribunal’s Decision Record is a confirmation of its acceptance of what the [appellant’s] migration agent had submitted about the circumstances of the [appellant] changing education providers as being consistent with and supported by the documentation that the migration agent had submitted. However, it was not, in my view, an acceptance by the Tribunal of the correctness of the migration agent’s submission that there had been procedural unfairness associated with either the s.19 Certificate or the s.20 Notice sent to the [appellant] by Cambridge College. The last sentence of [11] is but a mere reiteration of the acceptance by the Tribunal in the last sentence of [9] that documentation provided by the migration agent established that the [appellant] had advised Cambridge College that she wished to change education providers, that she had obtained confirmation of enrolment with a new education provider and that she had informed the Department of these changes, presumably meaning to refer to the [appellant’s] email to the Department dated 19 March 2013.

23.    In my view, nothing in [9]-[11] of the Tribunal’s Decision Record constitutes or evidences an acceptance by the Tribunal of the assertions of procedural unfairness made in the migration agent’s 24 page letter in the passages excerpted at [18] above. The consequence of that is that Ground 1 fails because no argument was put by the [appellant] in this proceeding that objectively, in truth and in fact, there had been a breach of procedural fairness by Cambridge College in relation to the provision of the s.19 Certificate or the giving of the s.20 Notice.

(emphasis added)

19    The primary judge in those terms rejected the argument that the Tribunal had accepted there had been a denial of procedural fairness, adding that Ms Grewal had not asserted as an objective fact at any time that she had been denied procedural fairness. His Honour noted (at [26]) in the judgment that in any event the Court was not permitted to ‘go behind’ the certification by the education provider issued pursuant to s 19 of the ESOS Act: see North J in Casse v Minister for Immigration [2013] FCA 1007, Flick J in Ahmed v Minister for Immigration (2015) 233 FCR 485 and Collier J in Patel v Minister for Immigration (2012) 206 FCR 384.

20    As to the second ground, it was contended for Ms Grewal that in light of the revocation by the Minister of the automatic cancellation of the Second Visa on the basis of exceptional circumstances, she had not failed to satisfy cl 572.235 because the failure to meet the requirements of condition 8202 was due to exceptional circumstances beyond her control.

21    The circumstances giving rise to this second ground of appeal were that, after the s 20 notice was sent, the Second Visa was automatically cancelled by virtue of s 137J of the Act. She then, by letter of 19 March 2013, sought that the automatic cancellation be revoked by the Minister pursuant to s 137K of the Act. By letter of 24 April 2013, the Minister did in fact revoke that cancellation of the Second Visa pursuant to s 137L of the Act. The Minister did so on the ground that the breach certified on s 20 notice was ‘due to exceptional circumstances beyond [Ms Grewal’s] control’. In the hearing under appeal, it was accepted that it was unnecessary for the Court to have knowledge of what the exceptional circumstances might have been giving rise to that revocation. For Ms Grewal, it was then argued that as the Minister had revoked the automatic cancellation of the Second Visa on the basis of exceptional circumstances, it followed that she had not failed to satisfy cl 572.235 since her failure to meet the requirements of condition 8202(3)(a)(i) was due to the said exceptional circumstances beyond her control.

22    It was also submitted that the Tribunal had wrongly construed and applied the clause as engaging with and requiring compliance with each and every condition to which the Second Visa was subject, whereas the proper construction was that substantial compliance with conditions meant that where a particular condition was beyond control of the visa holder, failure to comply with it would not amount to non-compliance. Alternatively, it was argued that the condition referred to in cl 572.235 did not include conditions where compliance is beyond the control of the relevant applicant and that this is a construction which avoids plain unfairness, injustice, capriciousness and absurdity that could otherwise result from the construction of the clause as applied by the Tribunal.

23    The primary judge rejected these arguments for several reasons, including, first (at [33]), that neither the clause nor the condition was invalid or void for uncertainty. There was no decision construing the clause as having been complied with in circumstances where an adverse certificate had been issued. Decisions of this Court and the Federal Circuit Court have proceeded on the basis that the condition may lawfully be imposed: see Mohammed v Minister for Immigration and Border Protection [2015] FCA 1060 per Flick J (at [16]) and Ahmed per Flick J (at [20]). His Honour held that it was beyond argument now that the clause required substantial compliance with each and every condition to which the relevant visa was subject. Non-compliance with one such condition is conclusive of inability to satisfy or meet substantial compliance. See, in particular, Montero v Minister for Immigration and Border Protection (2014) 229 FCR 144 (discussed below).

24    Further, the primary judge held (at [35]) that the automatic cancellation of the Second Visa, subsequently being revoked by the Minister, did not affect, detract or otherwise qualify the necessity for Ms Grewal to comply with the requirements of the Act and the Regulations. The exercise of the discretion by the Minister to permit Ms Grewal to continue to study until the expiration of the Second Visa was logically and practically unrelated to the issue of whether Ms Grewal should have been granted a third visa after expiry of the Second Visa.

25    His Honour held (at [36]) that the fact that the Minister had decided to revoke an automatic cancellation of a visa for breach of condition 8202(3), together with the fact that s 137P of the Act provides that thereby the relevant visa is taken never to have been cancelled under s 137J, does not negate the certification by Cambridge College that Ms Grewal had not achieved the satisfactory course progress. As noted in Montero, cancellation and revocation of cancellation differ from the grant of a visa.

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]).

CONCLUSION

32    There was no error by the primary judge, nor by the Tribunal. The appeal must be dismissed.

33    Although there is, in my view, no doubt that the Tribunal’s decision and the decision under appeal was correct, it may be, as I explored with counsel for the Minister, that Ms Grewal could make further submissions to the Minister for his consideration under s 351 of the Act to exercise a discretion in her favour on the same basis that his discretion was originally exercised concerning his revocation of the automatic cancellation. The details of the particular exceptional circumstances were not made known to either the Federal Circuit Court or to this Court, but were apparently sufficient for the Minister at least initially to exercise a discretion. It would otherwise appear that the regime, at least as it stood at the time (it having since slightly changed), was quite strict, but nonetheless, provided for some exercise of discretion in an appropriate case.

Associate:

Dated:    14 October 2016