CHEN And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

[2006] AATA 48

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 48

ADMINISTRATIVE APPEALS TRIBUNAL       )          No N2005/960

GENERAL ADMINISTRATIVE DIVISION		)  )
Re		WAN LAI CHEN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Professor I. Shearer, Senior Member

Date24 January 2006

PlaceSydney

Decision Notice of intention to cancel the Applicant’s business visa was validly given to the Applicant. As a consequence the cancellation of the Applicant’s business visa on 21 June 2005 was valid and complied with the Migration Act 1958.

[SGD] Professor I. Shearer
Senior Member

  

CATCHWORDS

IMMIGRATION – cancellation of business skills visa – preliminary issue of validity of notice of intention to cancel business visa – agent appointed in Australia – Applicant outside Australia – notice given to Agent - Applicant correctly given 28 days to respond to the notice – notice of intention to cancel the Applicant’s business visa was validly given – cancellation of the Applicant’s business visa was valid and complied with the Migration Act 1958.

Migration Act 1958 ss. 134 and 135

REASONS FOR DECISION

24 January 2006  Professor I. Shearer, Senior Member      

1.      This is an application by Mr Wan Lai Chen (“the Applicant”) for review of the decision by the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) made on 21 June 2005 to cancel the Applicant’s Subclass 127 Business Skills Visa (a “business visa”).

2. The Applicant has raised, “as a preliminary issue”, the validity of the notice given by the Respondent of an intention to cancel his business visa. The proceedings were confined to this issue. It might appear to follow that, if this preliminary issue were resolved in the Applicant’s favour, the substantive issue of whether it was the correct and preferable decision that the business visa be cancelled could be considered by the Tribunal at a later date, following re-consideration by the Minister. However, counsel for the Respondent has pointed out that, by reason of section 134(9) of the Migration Act 1958 (“the Act”), if a notice to cancel is not given to an applicant under section 135 of the Act within 3 years of the date of grant of the business visa, or the date of first entry into Australia following the grant of the visa (whichever is the later), the Minister may not cancel the visa. If the notice was invalidly given the consequence of a decision to that effect will be to deprive the Minister of power to cancel the visa in the circumstances of the present case.

3. In these proceedings the Applicant was represented by Mr F. Wang, solicitor, and the Respondent by Ms C. Petre, solicitor. The Tribunal had before it the documents (“T-documents”) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

BACKGROUND

4.      On 7 November 2001 the Applicant was granted a business visa.

5.      The Applicant entered Australia for the first time on 2 May 2002 and departed on 6 May 2002.

6.      On 16 May 2002 the Applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) Form 922, being a notification of his address or change of address. The Applicant advised his current contact address to be in Maroubra, NSW. The Applicant also indicated that he did not authorize any other person to act and receive communications about his application on his behalf.

7.      On 5 April 2004 DIMIA mailed to the Applicant at the address provided in Maroubra Form 1010: Survey of Business Skills Migrant – 24 months, for his completion and return. The covering letter also enclosed guidelines on how to compile the 24-month survey submission, and specified a return date not later than 24 May 2004. The letter invited the Applicant to contact the Department if he might have any difficulty in returning the survey by the specified date.

8.      It was not until 29 June 2004 that Mr Chris Chiu, a migration agent, returned the completed survey to DIMIA with submissions on the Applicant’s behalf. It was noted in the survey completed by the Applicant that all written communication regarding business skills monitoring should be sent to his migration agent. The Applicant provided the details of his migration agent, Mr Chiu, who was authorized to act on his behalf, including Mr Chiu’s postal address which was a post office box in Sydney. The Applicant declared that the information supplied in the survey was complete, correct and up-to-date in every detail.

9.      On 6 April 2005 DIMIA sent a Notice of Intention to Cancel the Applicant’s business visa by registered mail to Mr Chiu at his post office box address provided in the response to the survey. The notice gave the Applicant 28 days (until 13 May 2005) to comment on the grounds for cancellation and to give reasons why his business visa should not be cancelled.

10.     On 12 April 2005 DIMIA faxed a copy of the Notice of Intention to Cancel the Applicant’s business visa to Mr Chiu at his request.

11.     On 15 April 2005 the Applicant arrived in Australia and departed on 18 April 2005.

12.     On 2 May 2005 the period of 3 years since the Applicant first entered Australia on the business visa expired.

13.     On 12 May 2005 Mr Chiu responded to DIMIA’s letter dated 6 April 2005 on behalf of the Applicant and included over 100 pages of attachments in support of his representations.

14.     On 21 June 2005 a delegate of the Respondent decided to cancel the Applicant’s business visa and a Notice of Cancellation of Visa was sent to Mr Chiu at his post office box address provided on the survey.

15. On 11 August 2005 the 90 day period referred to in section 135(4)(b) of the Act expired.

LEGISLATION

16. The Respondent may cancel a business visa pursuant to section 134 of the Act if he or she is satisfied certain criteria are not met and subject to section 135 of the Act. Subsection 134(9) of the Act provides:

“(9) The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:

(a) if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or
(b) if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.”

17. Section 135 of the Act provides:

“SECT 135
Representations concerning cancellation of business visa

(1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:

(a) stating that the Minister proposes to cancel the visa; and
(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:
(i) if the notice is given in Australia—28 days after the notice is given; or
(ii) if the notice is given outside Australia—70 days after the notice is given.

(2) The holder may make such representations to the Minister within the time specified in the notice.
 

(3) The Minister must give due consideration to any representations.

(4) If:

(a) the time specified in the notice ends after the end of the period referred to in subsection 134(9); and
(b) at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;

the Minister is not to proceed with the cancellation.

(5) If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.”

18. According to section 494A of the Act, the Minister can give the written notice described in section 135(1) of the Act by any means he or she considers appropriate, including by one of the methods set out in section 494B of the Act.

19. Section 494B of the Act provides for the different methods by which the Minister may give documents to a person, and relevantly provides:

“…

Dispatch by prepaid post or by other prepaid means

(4) Another method consists of the Minister dating the document, and then dispatching it:

(a) within 3 working days (in the place of dispatch) of the date of the document; and

(b) by prepaid post or by other prepaid means; and

(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.”

20. Section 494C of the Act provides that if the Minister gives a document to a person by prepaid post (or by other prepaid means), the person is taken to have received the document:

“(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.”

21. Section 494D is of crucial importance in the present case. It provides:

“SECT 494D
Authorised recipient

(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
 

Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
 
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.


(3) The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person's authorised recipient.


(4) The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.”

ISSUES BEFORE THE TRIBUNAL

22.     The issues before the Tribunal are:

·whether the Notice of Intention to Cancel the Applicant’s business visa, sent on 6 April 2005, complies with the Act;

·whether the cancellation of the Applicant’s business visa on 21 June 2005 is valid and complies with the Act.

CONSIDERATION OF THE EVIDENCE

23. The sole ground advanced by the Applicant for arguing that the cancellation of his business visa was invalid and did not comply with the Act was the alleged invalidity of the notice of intention to cancel the visa. The alleged invalidity consisted in the giving of the Applicant less than 70 days in which to respond to the notice.

24.     The letter of 6 April 2005 giving notice of the Minister’s intention to cancel the Applicant’s business visa stated that the Applicant had until 13 May 2005 to make submissions in response (28 days from the date of the letter). On behalf of the Applicant, submissions were forwarded to DIMIA on 12 May 2005, consisting of a letter containing 5 pages, and annexed documents covering 119 pages.

25.     In response to a question posed by me to Mr Wang, it was stated that the consequence of the alleged shortened period for the Applicant was that he was unable to make as complete a set of submissions to DIMIA as he would have liked, in answer to the notice of intention to cancel his visa. Nevertheless the letter of 12 May 2005 forwarding the Applicant’s submissions and supporting documents made no request for an extension of time nor any claim of inadequacy of notice.

26.     It is quite clear from the evidence before the Tribunal that the Applicant, in the details provided by him in the Survey form (Form 1010) returned by him to DIMIA dated 28 June 2004, designated Mr Chris Chiu, of Chew and Chiu, Chartered Accountants, of PO Box QVB 686 Sydney NSW 1230 as “the migration agent who is authorised to act on your behalf and to receive all written communications about Business Skills monitoring” (T15, page 138). The notice of intention to cancel Mr Chen’s business visa dated 6 April 2005 was sent to Mr Chiu. At the latter’s request a copy of this notice was faxed to Mr Chiu on 12 April 2005. This evidence was not contested.

27. However, notwithstanding the receipt of the notice by the Applicant’s appointed migration agent, and the visit to Australia by the Applicant between 15 and 18 April 2005, the Applicant in these proceedings contends that he should have been granted a longer period to respond to the notice of intention to cancel his business visa. Since he at that time (6 April 2005) was outside Australia, he argued that the relevant period allowed for a response should have been 70 days, not 28 days (i.e. section 135(1)(b)(ii) of the Act, not section 135(1)(b)(i) of the Act).

28. I can find no merit in this argument. The words of the statute are clear. If notice is given “in Australia” the period is 28 days. If it is given “outside Australia” it is 70 days. The notice in this case was clearly given in Australia, since it was given to the Applicant’s appointed agent in Australia. It is the normal consequence of the appointment of an agent that he or she is competent to act on behalf of the principal within the limits of the authority granted. The terms of the authority are clear from the document executed by the Applicant detailed above in paragraph 26 of these reasons. Moreover, the provisions of section 494D of the Act specifically requires that the Minister “must give the authorised recipient [the agent], instead of the first person [the principal], any documents that the Minister would otherwise have given to the first person”. In my view this answers the preliminary issue.

DECISION

29. Notice of intention to cancel the Applicant’s business visa was validly given to the Applicant. As a consequence the cancellation of the Applicant’s business visa on 21 June 2005 was valid and complied with the Act.

I certify that the preceding 29 paragraphs are a true copy of the decision and reasons for decision of Professor I. Shearer, Senior Member:

Signed:         A. Garcia
          ..................................................................................……………………………….

Associate

Date of Hearing  28 November 2005

Date of Decision  24 January 2006

Solicitor for the Applicant  Mr F. Wang  

Solicitor for the Respondent  Ms C. Petre