Eng and Ors and Minister for Immigration and Multicultural and in Digenous Affairs
[2004] AATA 76
•28 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 76
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/257 - 259
GENERAL ADMINISTRATIVE DIVISION ) Re NGIANG JIANG ENG
GIM SOH TEO
YEONG SIANG ENG
Applicants
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr M Allen, Member Date28 January 2004
PlacePerth
Decision The decision of the Tribunal is that the decisions made on 10 July 2002 by a delegate of the respondent to cancel the business skills visas held by the applicants are set aside. The visas remain valid and effective. …...........(sgd M Allen)...............
Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – cancellation of business visas – consideration of relationship between ss 494A and 494B of Migration Act 1958 and Regulation 2.55 of Migration Regulations 1994 – consideration of whether Department was entitled to rely on address provided on an incoming passenger card – whether address was known to the Department – whether address was a residential address – consideration of whether address was an appropriate address – conclusion that notices of intention to cancel visas had not been properly given – decision to cancel visas set aside
Migration Act 1958 (Cth) ss 134, 135, 494A, 494B
Migration Regulations 1994 (Cth) Reg 2.55Re Bhyat and MIMIA [2003] AATA 1051
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490
REASONS FOR DECISION
28 January 2004 Mr M Allen, Member 1. On 10 July 2002 a delegate of the respondent Minister made decisions to cancel the business skills visas held by Mr Ngiang Jiang Eng (“Mr Eng”) and the secondary visas held by his wife, Ms Gim Soh Teo, and his three children. The present proceedings involve applications by Mr Eng, Ms Teo and one of their children, Yeong Siang Eng (“Yeong”), for review of the three decisions made on that day concerning their visas. Applications have not been made by the two other visa holders for review of the decisions affecting them.
2. At the hearing of the proceedings the applicants were represented by Mr Eng and the respondent was represented by Mr Blades, an officer of the Australian Government Solicitor.
3. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Tribunal Administration Act 1975 (T1- T34 and S1- S12) and exhibits R1-R3 tendered by the respondent and A1-A329 tendered by the applicants. Oral evidence was given at the hearing by Mr Eng.
4. The background to the matter is that Mr Eng and his family members were granted business visas in January 1999 when they were living in Singapore. Mr Eng and his family entered Australia for the first time pursuant to the visas on 20 April 1999. On 21 December 2001 the Minister’s Department sent to Mr Eng a 24-month survey form but no response to that form was received. By letters dated 15 March 2002 a delegate sent to Mr Eng and the other visa holders a notice of intention to cancel their visas and invited representations to be made by 22 April 2002. That letter was sent by registered post to the same address to which the 24-month survey form had been sent but was returned by the post office to the Department as “unclaimed” on 3 April 2002. On 10 July 2002 decisions were made by a delegate to cancel all the visas and the applicants were informed of that decision by letters of that date that were sent to the same address as had been used previously.
5. At the hearing of the matter Mr Eng raised as a preliminary issue the question of whether or not the statutory requirements for the giving of notices of intention to cancel had been complied with. Specifically, he questioned whether the notice of intention to cancel that is required to be given within 3 years of the first entry into Australia under the visas had been given. It is necessary to deal with that issue before dealing with the merits of the cancellation decisions.
Legislative Framework
6. Section 134 and 135 of the Migration Act 1958 (“the Act”) deal with the cancellation of business visas. Subsection 134(1) provides that a visa may be cancelled if the decision-maker is satisfied that the holder of the visa has not satisfied one or more of the three matters specified in that subsection. However, subsection 134(2) provides that a business visa must not be cancelled if the decision-maker is satisfied the holder has made genuine efforts to do the matters referred to in that subsection. Subsections 134(4) and (5) provide that if a person’s business visa is cancelled under s 134(1) then the visa held by members of the family unit of that person must also be cancelled - but those other visas must not be cancelled if cancellation would result in extreme hardship to those other persons. Subsection 134(9) provides that a business visa must not be cancelled under any of the preceding provisions unless a notice under s135 was given to the holder of the visa within the period of three years commencing on the day on which the visa holder first entered Australia after the visa was granted if, as is the case in these proceedings, the holders were not in Australia when the visa was granted.
7. Because Mr Eng and his family members first entered Australia after the granting of the visas on 20 April 1999, the three-year period ended on 19 April 2002.
8. The notice under s135 that is referred to in s134(9) is a notice under s135(1). That subsection provides that before cancelling a visa under s134 the Minister must give its holder a written notice that states that the Minister proposes to cancel the visa and invites the holder to make representations concerning the proposed cancellation within 28 days after the notice is given (if the notice is given in Australia).
9. The issue for determination is whether the notices of intention to cancel were given within the 3-year period bearing in mind that, as noted above, the letters constituting the notices were returned to the Department unclaimed.
Consideration
10. The oral evidence given by Mr Eng and the documentary evidence concerning how the circumstances arose (none of which was in dispute at the proceedings) is as follows and I make the following findings.
11. When the family first arrived in Australia in April 1999 Mr Eng faxed the respondent’s Department a letter dated 20 April 1999 (T 24) advising that the family’s residential address in Australia was to be 202 Kooyong Road, Rivervale in Western Australia. It was not in dispute that the Department received the letter but, for reasons that were not explained, the letter was not received by the business skills section. Rather, the letter was attached to a file in the border protection section of the Department.
12. On the incoming passenger card (PAX card) completed by him on the incoming flight on 20 April 1999, Mr Eng wrote that his intended address in Australia was the Rivervale address and that he intended to live in Australia for the next 12 months (S6).
13. In fact Mr Eng stayed in Australia for only 4 days on that occasion, but returned on 24 September 1999, again nominating the Rivervale address as his intended address on the PAX card. Mr Eng left Australia after 3 days on that occasion but returned on 12 December 1999 for a 3-day stay, nominating the Furama Hotel in Sydney as his intended address. He next arrived in Australia for an 8-day stay on 4 February 2000 and notified the Seaworld Hotel in Queensland to be his intended address on the PAX card. He next arrived in Australia for a 7-day stay on 19 November 2000, again notifying the Furama Hotel in Sydney as his intended address.
14. Mr Eng next arrived in Australia on 16 October 2001 and notified his intended address as “138 Barandeh Blvd, Willinton, Perth” (S11). He stayed for 12 days on that occasion, next arriving on 31 March 2002 when he stated his intended address to be “138 Burrendah Blvd” (S12). Mr Eng has remained in Australia since March 2002. Neither Ms Teo nor Yeong arrived in Australia after November 2000 and before March 2002.
15. On 30 November 2001 an email message was sent from the business skills section to the movement records section of the Department seeking an address for Mr Eng, identifying that he had last arrived in Australia on 16 October 2001. The message stated that the address was needed to “cancel his visa” but presumably it was for the purpose of sending out the 24-month survey form. I note in passing that the letter that was eventually sent with the 24-month survey form (dated 21 December 2001) (T 25) stated that the form was being sent because “it is almost 2 years since your initial arrival in Australia”, whereas Mr Eng’s initial arrival in Australia had been more than two and a half years before that time.
16. The business skills section did receive information from the movement records section because the letter of 21 December 2001 was sent to Mr Eng at “138 Barandeh Blvd, Willetton, Perth WA 6155”. That letter was not sent by registered post and there is no evidence before me as to what happened to it. There is no such street as “Barandeh Blvd” in the suburb of Willetton but there is a street named Burrendah Boulevard in that suburb. Whether any attempt was made by the post office to deliver the letter is not known. In any event, the evidence of Mr Eng was that the letter was not received. I note that at the time that letter was sent the department would have been aware that Mr Eng had already departed Australia on 28 October 2001 (S1).
17. The next relevant event was on or about 15 March 2002 when the Department posted letters dated 15 March 2002 to all the applicants by registered post at the same address to which the 24-month survey forms had been sent and, as noted above, on 3 April these letter were returned to the Department by the post office marked unclaimed (s11, folios 31-34).
18. For reasons that were not explained at the hearing either by evidence or submissions, sometime in March 2002 the border protection section of the Department sent to the business skills section the letter (T24) that Mr Eng had sent to the Department in April 1999 advising the Rivervale address. It appears from T 24 and R1 that the business skills section received that letter on 22 March 2002, by which time the notices of intention to cancel visas had already been dispatched. A handwritten notation was made by an unknown departmental officer appears on T24: “superseded by PAX card address.” Despite the absence of evidence as to by whom, and when, this notation was made, in the light of the sequence of events described above I believe that the most likely explanation is (and I so find) that the notation was made at the time T24 was received in the business skills section (on or about 22 March 2002) and that the notation was intended to mean that the Rivervale address notified in the letter of 20 April 1999 had been superseded by the address notified on the PAX card of 16 October 2001.
19. Mr Eng and his wife had purchased a house at Burrendah Boulevard in Willetton in about October 1999. They had rented the house out from 1 December 1999 until 12 March 2002 and it was vacant from 13 March 2002 until 24 April 2002. Mr Eng and his family took up residence at the house on 25 April 2002.
20. Whether or not the notices of intention to cancel the visas were given in accordance with the requirements of the Act requires consideration of the provisions of the Act and the Migration Regulations 1994 (the Regulations) that deal with the giving of such notices.
21. The Act and the Regulations were amended (with effect from 10 August 2001) by the Migration Legislation Amendment (Electronic Transactions and Method of Notification) Act 2001 (the 2001 Act) and the Migration Amendment Regulations 2001 (No. 6) (the 2001 Regulations) respectively. The 2001 Act added a number of new sections to the Act. Section 494A contains a heading “Giving documents by Minister where no requirement to do so by s 494B method” and provides that :
“If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).”
22. Section 494B, which is headed “Methods by which Minister gives documents to a person” provides that:
“(1) For the purposes of provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient ); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.”
The section goes on to say that one of the permitted methods is to dispatch the document by pre-paid post within 3 working days of the date of the document to “the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents”.
23. The 2001 Regulations inserted into the Regulations a new regulation 2.55 that was said to apply to “the giving of a document to a holder ... of a visa relating to the proposed cancellation ... of a visa under the Act.” Regulation 2.55(3) provides that, for such a document, “the Minister must give the document in one of the following ways”, one of which is the despatch by pre-paid post or other pre-paid means “to the person’s last residential address, business address or post box address known to the Minister”.
24. For the applicant it was contended that the only relevant address that could be used for notification was Kooyong Road, Rivervale and that had not been done. For the respondent it was submitted that the respondent was entitled to rely on the information supplied on the PAX card of 16 October 2001, because such cards carry an endorsement that “information sought on this form is required to administer immigration, customs, quarantine, statistical, health, wild life and currency laws of Australia, and its collection is authorised by legislation”.. The respondent contended also that s 102 of the Act requires a non-citizen to fill in the PAX card in such a way that all questions are answered and are correctly answered, and that s 105 of the Act provides that “if a non-citizen becomes aware that an answer in a PAX card is incorrect when it was given, then he or she must notify the Department of the incorrectness and the correct answer”.
25. In the case of Re Bhyat and MIMIA [2003] AATA 1051 at [23] I observed that the 2001 Act and the 2001 Regulations were together a package that dealt with (amongst other things) the giving and receiving of certain types of documents, and that one might be forgiven for thinking that such a package would have provided a clear and unambiguous regime – but, in my opinion, such is not the case. The Explanatory Memorandum (“EM”) circulated by authority of the Minister for Immigration and Multicultural Affairs in relation to the Bill that became the 2001 Act states that:
“the main purpose of the Bill is to bring the Migration Act and the Citizenship Act into line with the Electronic Transactions Act 1999 and allow implementation of the Government’s commitment to have appropriate services available online by July 2001.”
In relation to the giving and receiving of documents, the EM stated that:
“the amendments ... consolidate into [the Act] provisions dealing with the giving and deemed receipt of documents. Most of these provisions are presently found in either [the Act] or [the Regulations] and essentially retain the status quo. However, the amendments also add an electronic method for the giving of documents ... .”
26. The EM also stated in Clause 153 that:
“New Section 494A authorises the Minister to use any method that he or she considers to be appropriate to give a document to a person in circumstances where the method for giving the document has not been specified by the [Act] or the [Regulations]. This Section does not prevent the Minister from opting to use one of the methods specified in the new Section 494B or prescribed by the [Regulations]. However, where the Minister does use a method in Section 494B, the provisions of the new Section 494C may be invoked to determine when the document is taken to have been received.” (emphasis added)
27. The Explanatory Statement (“ES”) relating to the 2001 Regulations states that the proposed regulations will “give effect to amendments made to the Act by the [2001 Act] dealing with the giving of documents ... “ and that: “notification of a decision to cancel a visa that has been granted to a person is now dealt with by new Regulation 2.55 ... .” In relation to regulation 2.55(3), which deals with documents relating to the proposed cancellation of a visa, the ES states that the sub-regulation “provides that the Minister must give a document” of that type in one of the ways set out in the Regulations.
28. As I observed in Bhyat, one might conclude from the above that the intent of the combined 2001 Act and 2001 Regulations was that in relation to the giving of documents relating to the cancellation or proposed cancellation of visas, the methods set out in regulation 2.55 were to apply and that they were the only methods to be employed – but that may not have been the effect of the package.
29. Both s 135 and reg 2.55 require the Minister to give a document to a person. Section 135 does not specify the method by which a notice of intention to cancel a visa must be given, but reg 2.55 does so specify. Nevertheless, because neither s 135 nor reg 2.55 state that such notices must be given by one of the methods specified in s 494B, s 494A of the Act would appear to apply. If that is so, then s 494A allows the Minister to give a document by any method considered appropriate, which might include the methods mentioned in s 494B. That being so, the statement in Clause 153 of the EM quoted at [26] above that s 494A authorises the Minister to use any method considered appropriate, where the method has not been specified by the Act or the Regulations, may not be an accurate reflection of what s 494A actually provides.
30. If it is the case that s 494A does apply then, to the extent that reg 2.55 purports to require a notice to be given by one of the methods set out in that regulation, it would seem to be inconsistent with the terms of s 494A. In Bhyat it was argued on behalf of the respondent that any inconsistency could be overcome if the requirement that the Minister “must” use a method prescribed in reg 2.55 is to be understood as a directory, rather than a mandatory, requirement – and the word “must” should be read to mean ‘may’.. The same contention was made implicitly in the present case.
31. In Bhyat I noted the comments of the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 153 ALR 490 at [93] (per McHugh, Gummow, Kirby and Hain JJ) that such a distinction and classification has outlived its usefulness.
32. Although in Bhyat it was not necessary for me to reach a concluded view about the inter-relationship between ss 494A and 494B on the one hand, and reg 2.55 on the other, I expressed a preliminary view that it would seem to be unlikely, in the light of the specific nature of the requirements of reg 2.5, that Parliament intended to grant the Minister the power to give such important notices as Notices of Intention to Cancel visas by any method that the Minister considered appropriate (as opposed to, say, choosing from a number of methods that may be set out in the Act or the Regulations). I remain of that view and favour an interpretation that the Minister is, in relation to Notices of Intention to Cancel under s 135, required to give such a notice in accordance with reg 2.55. However, in the present case it is not necessary to finally conclude the point because I consider that the Notices of Intention to Cancel that were given did not comply with either reg 2.55 or the provisions of s 494A or s 494B.
33. The respondent’s contentions imply that there are three alternatives for the giving of notices under s 135:
(a) any of the methods prescribed in reg 2.55;
(b) any of the methods prescribed in s 494B; or
(c)pursuant to s 494A, any other method that the respondent considers appropriate.
34. I leave aside for the moment the question of what might be considered “appropriate” as a method of giving a notice under s 135. In the present case, the notices that were sent were by pre-paid post. It is not contended that the address to which the notices were sent were the last business address or post box address known to the Minister (as permitted by reg 2.55) or the last business address provided to the Minister by the recipient for the purposes of receiving documents (as provided by s 494B). What is in contention is whether the address to which the notices were sent was the “last residential address known to the Minister” (for the purposes of reg 2.55) or the “last residential address provided to the Minister by the recipient for the purposes of receiving documents” (for the purposes of s 494B).
35. At this point it is appropriate to review what information was available to the Department (and hence the respondent) at the time that the notices under s 135 were to be despatched in March 2002:
(a)the Department had an address for Mr Eng and his family in Singapore that had been provided in the original visa application and which, it was not in dispute, had never changed and was still applicable;
(b)the Department had the Kooyong Road, Rivervale address that had been formally notified in 1999. No formal notification of change to that address had been subsequently provided;
(c)the Department knew that after April 1999 Mr Eng (and on some occasions some of his family members) had entered Australia on a further five occasions and that on one of them (in September 1999) he had nominated the Rivervale address on his PAX card, on three of them he had nominated hotels on the East coast, and that on occasion (October 2001) he had nominated “138 Barandeh Blvd, Willinton”.. On all of those PAX cards the applicant had stated that he did not intend to live in Australia for the next 12 months;
(d)the Department knew that Mr Eng had left Australia on 28 October 2001;
(e)the Department knew, or could easily have established, that there was no street named Barandeh, nor was there a suburb of Willinton in Western Australia. It appears that somebody within the Department did turn their mind to whether the address given on the PAX card of 16 October 2001 was a genuine address - because both the 24 month survey form and the s 135 notice were sent to the suburb of Willetton. In other words, somebody in the Department realised that the suburb was named incorrectly, and corrected it, but appears not to have done the same thing in relation to the name of the street.
36. In light of the above knowledge that the Department had, or could easily have established, it cannot, in my opinion, be said that the Department had any reason to believe in March 2002 that it was in possession of a “residential address” for Mr Eng or the other applicants other than the Rivervale address or the Singapore address. As at March 2002 the address that was provided by Mr Eng in the October 2001 PAX card was entitled to no greater status than the addresses that had been provided in the earlier PAX cards. As we have seen, three of those addresses were of hotels in Eastern Australia where the family stayed for a short time and, in my opinion, the respondent’s delegate within the Department was not entitled to assume that the October 2001 address was anything other than an address at which the applicant was to spend a short period of time during his visit to Australia on that occasion (which in fact lasted for 12 days).
37. The word “known” is the past participle of the verb “to know” and the Macquarie Dictionary (3rd Edition) defines “know” relevantly as: “1. to perceive or understand as fact or truth, or apprehend with clearness and certainty.” It cannot be said, in my opinion, that the delegate’s knowledge of the Willetton address had those qualities in March 2002. Even if the Willetton address could at that time be considered a “residential address” (which I do not consider to be so), it was not a residential address for the applicants that was “known” to the delegate, nor was it a residential address that had been provided to the respondent for the purposes of receiving documents. Sending the s 135 notices to that address did not, in my opinion, satisfy the requirements of either reg 2.55 or s 494B.
38. I return to the issue of whether the address to which the notices were sent could be seen as an “appropriate” address for the purposes of s 494A. There is no evidence that any person in the respondent’s Department turned their mind to the appropriateness or otherwise of the address – although, as I have noted above, the error in the name of the suburb was identified and corrected. Having regard to the knowledge that the Department had at that time I consider that the appropriate address that should have been used in March 2002 was either the Rivervale address or the original Singapore address. The Rivervale address was not used because of an administrative error within the Department and it would have been, in my opinion, a simple task for the Department to have contacted the applicant at the Singapore address – even if only to obtain a reliable address in Australia. For the reasons that I have set out above, in my opinion the Department was not entitled to rely on the address provided in the October 2001 PAX card and that was not, in my opinion, an appropriate address.
39. Consequently, I find that the s 135 notices were not given to the applicants in any of the ways permitted by reg 2.55 or s 494B, nor were they given in an appropriate way for the purposes of s 494A. The notices were not, therefore, given as required by s 134(9) and s 135(1) of the Act, and as a result the power to cancel the visas of either the applicant or the secondary visa holders pursuant to s 134(1) or s 134(4) was not activated. It is not necessary to consider the merits of the cancellation decisions.
40. My decision is that the decisions made on 10 July 2002 by a delegate of the respondent to cancel the business skills visas held by the applicants are set aside. The visas remain valid and effective.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: .............(sgd V Wong)........................
AssociateDate/s of Hearing 21 August 2003
Date of Decision 28 January 2004
Counsel for the Applicant In person
Counsel for the Respondent Mr D Blades
Solicitor for the Respondent Australian Government Solicitor
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