Montero v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 114

[2015] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S10 of 2015

B e t w e e n -

RENEE SORENIO MONTERO

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MAY 2015, AT 12.47 PM

Copyright in the High Court of Australia

MR G.R. KENNETT, SC:   May it please the Court, I appear with my learned friend, MS S.A.C. PATTERSON, for the applicant.  (instructed by Fragomen)

MR G.T. JOHNSON, SC:   May it please your Honours, I appear for the first respondent.  (instructed by Sparke Helmore Lawyers)

KIEFEL J:   Yes, Mr Kennett.

MR KENNETT:   Your Honours, this case turns entirely on the outline that the Migration Regulations are not bristling with these things, but there is no shortage in the Migration Regulations of very broad and, on the face of it, incommensurable judgments that have to be made whether somebody would be an asset to the Australian community, whether there are compelling circumstances, language of that kind. 

Indeed, the primary operation that visa conditions have is through section 116 of the Act where a visa can be cancelled if they are not complied with.  Subsection (1) of that section confers a completely open‑ended discretion on the Minister which would naturally, we would say, be exercised in the light of all the circumstances of a particular case.  The decision‑maker there would have to face questions such as your Honour suggests.  This person has worked twice the number of hours but they have complied with other conditions.  I am not suggesting that it is easy or that there is a formula to do it with but a similar kind of judgment has to be made there to the kind of judgment we say the present provision entails.

KIEFEL J:   The conditions relating to visas will not necessarily have any relationship to each other, will they?

MR KENNETT:   Not necessarily, no, and they can be quite disparate, as your Honour will have seen.

KIEFEL J: Quite so. That might tend to suggest that, as the Full Court found, the notion of substantial compliance is simply a question of the extent of compliance with respect to each of the conditions as distinct from, say, the decision of Justice Hill in the context of section 205(11) of the Corporations Law where it was the provisions as a whole of subsection (10) which were interrelated and all directed to the same purpose with which he was dealing.  It is more understandable that a holistic approach is given in a case of that kind.

MR KENNETT:   Yes, and my argument is harder in a case where the conditions may be and often are disparate in nature and that is a consideration that points towards the view that the Full Court took but, we would say that there are considerations which point in the other direction.  Some of those considerations relate to the structure and subject matter of the criterion itself. 

For example, one thing we do know about conditions that apply to visas under the Migration Act is that as with any other kind of legal requirement some of them are capable in their nature of being substantially complied with and others are not.  We have referred to those in the written submissions as binary conditions – either you have done it or you have not. 

On the Full Court’s construction, firstly, the section has to be read as requiring substantial compliance with those conditions that can be substantially complied with and compliance simpliciter with others.  So it involves some degree of clunkiness in the statutory language to read it that way.  Another point which arises from the same feature of the legislation, we would say, is the term “substantial” was obviously put in there to introduce a level of judgment and a level of flexibility and the capacity to forgive non‑compliance.

But if a condition that has not been complied with is one of those binary ones, then that is the end of the story and the visa applicant does not get any opportunity to try and do something with that word “substantially” so that the flexibility and the capacity for relieving of harsh consequences, which is obviously intended to be achieved, is not achieved on the Minister’s construction in those circumstances. 

So there are considerations of context and purpose, we would say, that point in both directions and, obviously, your Honours will not be surprised that we say ours are stronger.  Before I sit down I should just perhaps mention that the dispute between us cannot be resolved by any means we have seen.  It was a matter of linguistic analysis.  The primary judge attempted to do that at pages 30 to 32 of the application book.  Justice Flick tried to do it at page 60 paragraph 29.  Neither of those attempts at linguistic analysis, with respect, works, in our submission. 

Justice Flick tried to do it by taking out the word “substantially” and then observing that, in that circumstance, it would be clear that there had to be compliance with every condition, which is clearly right, we would concede.  But then his Honour says that you add the word “substantially” back in and it:

does not dictate any different conclusion.

We say, with great respect, that analysis just leads up a blind alley because it is only when you do put in the word “substantially” that the question before us arises.

BELL J:   But even if you do, on that analysis, go up a blind alley, Mr Kennett, it was only one basis of his Honour’s analysis.  Justice Logan decided the matter against you on a narrower basis but it is ‑ ‑ ‑

MR KENNETT:   On the basis of the contextual considerations.  Yes, but I just wanted to make the point, despite the very short way in which this issue has been dealt with in some of the earlier cases, it just does not resolve itself as a matter of the language of the statute.  You have to go to the competing considerations of structure and context which I have mentioned.  If the Court pleases.

KIEFEL J:   We do not need to trouble you, Mr Johnson.

In our view there is no reason to doubt the decision of the Full Court of the Federal Court in this matter.  Special leave is refused with costs.

The Court will adjourn until 2.15 pm on Tuesday, 9 June in Canberra.

AT 1.00 PM THE MATTER WAS CONCLUDED