It will be well-known to RMAs that a person who fails to lodge an application for a new substantive visa with the Department before an existing visa has expired may encounter major difficulties in obtaining the new visa.

These difficulties may be posed by the need to comply with the criteria of Schedule 3 of the Migration Regulations.  For example, Clause 3004 of Schedule 3 provides that if the applicant has ceased to hold a substantive visa (or criminal justice visa) at any time after 1 September 1994, the applicant must satisfy the Department , among other things, that she or he does not currently hold a substantive visa due to factors beyond her/his control; that there are compelling reasons for the grant of the new visa; and that the applicant has “complied substantially” with the conditions that applied to the last substantive visa that was held.

A decision of the Full Court of the Federal Court of Australia has clarified the meaning of clause 3004, and has explained the nature and extent of the “compliance” with the conditions of a person’s last substantive visa that must be achieved in order to satisfy clause 3004. This decision was made in the case of Montero v Minister for Immigration and Border Protection, (2014) FCAFC 170 (12 December 2014).

The background facts of the case were that the applicant, a citizen of the Philippines, had been the holder of a student visa.  He did not apply for a new visa (in his case, an “Employer Nomination (Residence) (subclass 857) visa until three days after his student visa had expired.  After a Departmental officer refused his new visa application, the applicant sought review in the Migration Review Tribunal.

The Tribunal found that the visa application should be refused, albeit for different reasons than were relied on by the Departmental officer who had originally refused the application.

In the view of the MRT, the earlier refusal of the application was proper because the applicant had not satisfied clause 3004(e)(ii) (as it was then in force) in that he had not “substantially complied” with the conditions that were incorporated into his student visa.  In particular, the MRT found that Mr Montero had not complied with Condition 8104, which restricted the number of hours that he was allowed to work. Mr Montero’s visa included other conditions, including Condition 8501, which required him to maintain adequate health insurance while in Australia, and Condition 8516, which required him to continue to meet the initial eligibility criteria for the grant of the visa.  There is no discussion in the Full Court’s judgment concerning the extent to which Mr Montero had either complied, or failed to comply, with these last two conditions.

The issue that was presented to the Full Court in the Montero case was how the phrase “complied substantially with” the conditions in the last substantive visa should be interpreted. In particular, the Court decided whether the term “complied substantially” required substantial compliance with each and every separate condition of the visa, or whether (as Mr Montero’s lawyers contended) required only that he comply substantially with the conditions of the visa “taken as a whole”.

In other words, under the interpretation that was put forward on behalf of Mr Montero, it would have been sufficient to comply “substantially” with some of the conditions of the visa, and that if this level of compliance had been achieved, it would have been acceptable not to comply at all with another condition of the visa.   Thus, it was the submission of Mr Montero’s lawyers that a finding of “substantial compliance” could be made so long as there has been “overall” compliance with the visa conditions, even if one of the conditions had not been complied with at all. 

The Full Court rejected this interpretation. It held that in order for clause 3004 to be met, each and every one of the conditions of the previous visa must have been substantially complied with. The Court determined that this interpretation was appropriate because the various conditions of visas are directed toward and serve different purposes. Indeed, this was certainly true in the case of Mr Montero’s visa conditions – with Condition 8104 intended to restrict the number of hours a person who holds a student visa can work, while condition 8501 is concerned with an entirely separate matter, namely maintaining adequate health insurance.

In essence, the Court held that an applicant cannot simply “pick and choose” which of several  visa conditions to comply with, and then argue that she/he has “substantially complied” with the conditions (for example by fulfilling 3 out of 4 conditions). Instead, the Full Court held that, in order to satisfy clause 3004.,there must be substantial compliance with each individual visa condition.

In the event, because the evidence was that Mr Montero had not complied substantially with Condition 8104 restricting his working hours, it was concluded that he had failed to satisfy clause 3004; accordingly, the refusal of his application for a new visa was affirmed by the Full Court.

Once again, the outcome of this case illustrates just how important it is that visa holders become familiar with the conditions of their visas, take those conditions to heart, and comply with the conditions strictly and fully.  Of course, RMAs can provide a valuable service to their clients by educating them about the fact that conditions have been included in their visas, explaining the requirements of those conditions, and impressing the importance of following the conditions.