Fan v Minister for Immigration
[2011] FMCA 24
•25 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 24 |
| MIGRATION – VISA – Business Visa – Class EA (subclass 132) (Business Talent) – application for judicial review of decision of Administrative Appeals Tribunal – decision by delegate to cancel visa – where applicants were secondary visa holders – whether the notice under Migration Act 1958 (Cth) s. 135 can only be issued once the primary visa holder’s visa has been cancelled – where notice issued to the secondary visa holders when the primary visa holder’s visa had not been cancelled – where second applicant is a minor – whether second applicant was given a notice under Migration Act 1958 (Cth) s. 135 by way of a notice given to the first applicant – whether technical breach – whether practical injustice – whether review proceedings invalid for non-compliance with statute – no adverse consequences of failure to comply with procedural obligation. |
| Migration Act 1958 (Cth), ss.66, 134, 135, 424A, 441A, 494A, 494B Migration Regulations 1994 (Cth), reg. 2.55 |
| Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Zhong v Minister for Immigration and Citizenship (2008) 171 FCR 444 Lin and Minister for Immigration and Citizenship [2009] AATA 938 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 followed SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129 followed |
| First Applicant: | YANLING FAN |
| Second Applicant: | ZEQIAN CHEN (BY HER LITIGATION GUARDIAN JOHN HAN) |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1718 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 November 2010 |
| Date of Last Submission: | 17 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2011 |
REPRESENTATION
| Solicitors for the Applicants: | Dobbie and Devine Immigration Lawyers |
| Counsel for the First Respondents: | Mr Potts |
| Solicitors for the First Respondents: | Clayton Utz |
| Solicitors for the Second Respondent: | Phillip Kellow |
ORDERS
The application is dismissed.
The first applicant is to pay the first respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1718 of 2010
| YANLING FAN |
First Applicant
| ZEQIAN CHEN (BY HER LITIGATION GUARDIAN JOHN HAN) |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision by the Administrative Appeals Tribunal made on 9th July 2010 to affirm a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to cancel the applicants’ Class EA (subclass 132) (Business Talent) visas.
In their application, the applicants seek the following:
i)A writ of certiorari directed to the second respondent quashing the Tribunal decision;
ii)A writ of mandamus directed to the second respondent requiring it to rehear and determine the applicants’ application according to law;
iii)A writ of prohibition preventing the first respondent, the Minister for Immigration and Citizenship, his servants and agents from acting upon or giving effect to the Tribunal decision;
iv)Other relief as appropriate; and
v)Costs.
The applicants rely on the following ground:
The Tribunal misinterpreted the applicable law and misapplied the law to the facts.
The particulars of sub-ground A are that the Tribunal misinterpreted and misapplied the law by finding that the cancellation of the Applicant’s visa under s. 134(4) of the Act was lawful in circumstances:
i)Where it is a condition precedent to the valid exercise of the delegate’s power to cancel the Applicants’ visa under s. 134(4) that a notice under s. 135 of the Act (proposing to cancel their visa under s. 134(4) of the Act) be issued within a prescribed three year period (s. 134(9)); and
ii)Where the s. 135 notice can only be issued after the visa held by the primary visa holder (being the First Applicant’s husband and the Second Applicant’s father) relevantly had to have been cancelled under s 134(1)); and
iii)Where the primary visa holder’s visa had not been cancelled under s. 134(1) when the purported s. 135 notice was issued to the Applicants
such that the cancellation of the Applicants’ visa could not be cancelled (sic)[1] as the prescribed notice was not given within the three year period prescribed by s. 134(9).
[1] There appears to be a typographical error in this sentence. It presumably refers to the visa not being able to be cancelled.
The particulars of sub-ground B are that the Tribunal misinterpreted and misapplied the law by finding that the Second Applicant had been issued a s. 135 notice:
i)The Tribunal erroneously found that the Second Applicant had been given a s. 135 notice by way of a purported notice given to the First Applicant, when no such notice had been given.
Background
The primary visa holder is Mr Minhua Chen, who applied for a Business Skills – Business Talent (Migrant) (Class EA) (Subclass 132) visa along with his wife, Ms Yanling Fan (the first applicant), his adult son, Mr Ting Chen, and his daughter, Ms Zeqian Chen (the second applicant), who is 12 years old. Ms Chen has a litigation guardian, Mr John Han.
On 30th March 2006, a delegate of the Minister for Immigration and Citizenship notified Mr Minhua Chen that he and his wife and children had been granted Subclass 132 visas, subject to the condition that they entered Australia by 20th August 2006. They entered Australia on their visas on 7th July 2006.
On 25th June 2009, a delegate of the Minister wrote to the first applicant. The letter was headed Notice of Intention to Consider Cancellation of your Visa.
The letter said (in part):
I am writing to notify you that there may be grounds to consider cancellation of your Business Skills visa. Please read this letter carefully as it contains important information about the Minister’s powers to cancel your visa, your opportunity to make representations about the proposed cancellation, as well as the consequences of having your visa cancelled…
Reasons for considering cancellation
On 25 June 2009, Mr Minhua Chen was sent a Notice of Intention to Consider Cancellation of his Business Skills visa under section 134 of the Act. As you were granted a visa because Mr Minhua Chen was granted a visa, your Business Skills visa and the visas held by the following members of your family unit must be cancelled:
· Ms Zeqian Chen
The Act gives you the opportunity to comment on these grounds for cancellation. Your representation should say why you think the cancellation of any visas held by you and members of your family unit (eg dependent children) would result in extreme hardship. You may include documents that support your claims.[2]
[2] Court Book at pages 20-21
A delegate of the Minister decided to cancel the applicants’ visas on 21st October 2009. In the delegate’s Decision Record, the delegate noted:
I received a written response from Mr Minhua Chen through Mr John Han on 23 July 2009 via email to the notice of intention to cancel.
No claims were made that the cancellation would result in extreme hardship for members of the family unit.[3]
[3] Court Book at 46
The delegate went on to consider the position of the second applicant, noting that she was under the age of 18:
I am obliged under the International Convention on the Rights of the Child (CROC) to give primary consideration to the best interests of those children when deciding to cancel their visas. In general terms, the child’s best interests will be served if the child remains with its parents. As there is no evidence of counterbalancing considerations, I consider that it would not be against the best interests of the above named minors to have their visas cancelled.
No claims have been made by any members of the family unit that extreme hardship would be suffered as a result of their visas being cancelled. In the absence of any other information, I do not consider the cancellation of their visas would result in extreme hardship to any of the family members.[4]
[4] Ibid
That same day, the delegate wrote to the first applicant, giving her notice that her visa had been cancelled. The letter stated (in part):
The Migration Act 1958 (the Act) provides that where a person’s visa is cancelled under section 134 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, then the Minister must cancel the other person’s visa by giving written notice. On 21 October 2009 Mr Minhua Chen’s visa was cancelled under section 134 of the Act. As you were granted a visa because Mr Minhua Chen was granted a visa, your Business Skills visa and the visas held by the following members of your family unit must be cancelled:
· Ms Zeqian Chen[5]
[5] Court Book at 6
On 1st February 2010, the first applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. The Tribunal heard the application, along with the applications of the other visa holders, on 28th June 2010 and handed down its decision on 9th July 2010, affirming the delegate’s decision.
The Tribunal Decision
In its Reasons for Decision, the Administrative Appeals Tribunal defined the issues in relation to Ms Fan, Mr Ting Chen and Ms Zeqian Chen as:
i)whether the decisions to cancel their visas were made in accordance with the provisions of the Act; and
ii)whether their visas should not be cancelled because they will suffer extreme hardship as a result.
The applicants argued that it was a condition precedent to the valid exercise of the delegate’s power to issue a notice proposing to cancel the visas[6] held by the secondary visa holders, Ms Fan, Mr Ting Chen and Ms Chen, that the visa held by the primary visa holder, Mr Minhua Chen, had already been cancelled. The applicants relied on the decision of Lander J in Zhong v Minister for Immigration and Citizenship[7], which considered when a Notice under s. 107 could be issued for the purpose of a cancellation under s. 109 of the Act. Lander J held at [72]:
In my opinion, s 107 is only engaged where the Minister, or relevantly a delegate of the Minister, has concluded that the holder of a visa has not complied with one of the sections or subsections mentioned in s 107(1). It is only in that case that the Minister or the delegate is entitled to give notice to the visa holder in accordance with that subsection. Section 107(1) is engaged because the Minister, or a delegate of the Minister, has reached a state of mind where they consider that the holder of a visa has not complied with a relevant section.[8]
[6] A notice under the provisions of s. 135 of the Migration Act
[7] (2008) 171 FCR 444
[8] (2008) 171 FCR 444 at [72]
However, the Tribunal followed its own decision in Lin and Minister for Immigration and Citizenship[9], distinguishing the decision in Zhong v Minister for Immigration and Citizenship and rejecting the argument that the cancellation of the visa holder’s visa is a pre-condition or a condition precedent to the issuing of a notice to the secondary visa holder under s. 135 of the Act.[10]
[9] [2009] AATA 938
[10] Court Book 80 at [26]-[27
It was argued before the Tribunal on behalf of the second applicant that no Notice of Intention to Consider Cancellation was given to her as required by s. 134(9). The Notice addressed to her mother, the first applicant, referred to the proposed cancellation of the second applicant’s visa.
The argument was that because no separate Notice was given to the second applicant within the period of three years from the day on which she first entered Australia after the visa was granted, then in accordance with s. 134(9) the Minister must not cancel her visa. Thus, the purported cancellation of her visa was made without power to do so.
The Tribunal rejected that argument, saying:
In our view, given that Ms Chen was a minor and, at the time the Notice was issued, aged 10, it was appropriate to include her in her mother’s notice so that, as the Minister contends, her mother could either assist her to make representations or make representations on her behalf. While no specific guidance is provided by the legislation as to the process for giving notice to minors, in this instance a Notice, including reference to Ms Chen, was given to her mother and Mr Han responded on behalf of the family as a whole. Thus, in our view, the implicit objective of the legislation was satisfied: Ms Chen was afforded an adequate opportunity to respond and, we agree with the Minister, no practical unfairness flowed from the process followed. We therefore find that the requirements of s 134(9) and s (135(1) were satisfied.[11]
[11] Court Book 79 at [23]
The Tribunal affirmed the delegate’s decisions.
Application to the Federal Magistrates Court
The applicants filed their application on 6th August 2010, along with an affidavit by Ma Rosario Xiella Devine, solicitor, annexing a copy of the Tribunal decision.
The applicants’ solicitor filed a written outline of submissions on 4th November 2010. The first respondent’s solicitors filed their outline of submissions on 12th November 2010.
The application was heard by way of submissions on 17th November 2010.
The Applicants’ Submissions
The applicants’ solicitor, Mr Dobbie, submitted that the Administrative Appeals Tribunal (AAT) had committed jurisdictional error in rejecting the argument that it was a condition precedent to the valid exercise of power to give the s. 135 notice that the visa held by Minhua Chen had to have been cancelled before the notice could be given.
Although it was not directly on point, the applicants relied on the decision of Lander J in Zhong v Minister for Immigration and Citizenship[12], particularly at [71] and [72]. The submission is that the AAT fell into error by following its earlier decision in Lin and Minister for Immigration and Citizenship[13], where Handley DP distinguished the decision in Zhong on the facts, stating that:
…it was concerned with non-compliance and the relevant section of the Act in that case required the Minister to have first decided that the holder of the visa had not complied with specific provisions of the Act before giving the holder of the visa a notice. While s 134(4) is subject to s 134(5) and s 135, s 134(4) is purely about cancelling visas by giving written notice of cancellation to the visa holders, and does not itself deal with the grounds for cancellation. There is no requirement in the subsection for the Minister to have attained a particular state of mind.[14]
[12] supra
[13] supra
[14] [2009] AATA 938 at [17]
The applicants’ submission is that, contrary to the AAT’s finding, a prescribed state of mind is required before the s 135 notice can be given. That state of mind, prescribed in clear language by s. 135(1)(a), is that the Minister “proposes to cancel the visa” held by the applicants.
The only time that that state of mind can exist is when the visa held by the primary visa holder has been cancelled under s 134(1). The power under s 134(4) is only enlivened if the primary visa holder’s visa has been cancelled under s. 134(1).
The thrust of the applicants’ argument is that the Minister is not permitted to give notice under s. 135 for the purposes of a cancellation under s. 134(4) until the primary visa holder’s visa is cancelled. The construction of the legislation, given the interaction between ss. 134 and 135, requires it. Mr Dobbie referred the Court to the decision of Gleeson CJ in Plaintiff S157/2002 v The Commonwealth of Australia[15], where his Honour said at [19]:
Later again, in R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section[16], Dixon J referred to “imperative duties or inviolable limitations or restraints” which may be imposed by legislation, contravention of which would not be protected by a privative provision. To describe the duty as imperative, or a restraint as inviolable, is to express the result of a process of construction, rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made. Because what is involved is a process of statutory construction, and attempted reconciliation, the outcome will necessarily be influenced by the particular statutory context.
[15] (2003) 211 CLR 476
[16] Footnote omitted
Mr Dobbie submitted that there was an absurdity relating to the time to respond to a s. 135 notice on the construction adopted by the AAT, namely, that s. 135 contains different time limits to respond to a notice:
a)A visa holder has 28 days to respond if notice is given in Australia; but
b)A visa holder has 70 days to respond if notice is given outside Australia.
The absurdity that is argued is that if the secondary visa holder was given notice in Australia but the primary visa holder was given notice outside Australia, the secondary visa holder would have to respond within 28 days, before the primary visa holder, who would have 70 days to respond.
It was further submitted that another absurdity would arise if the Minister were to give a section 135 notice to a secondary visa holder without reference to the primary visa holder at all.
The submission is that it is a precondition to the giving of a section 135 notice that the primary visa holder’s visa has been cancelled pursuant to s. 134(1) before the notice could be given, as the state of mind required by s. 135(1)(a) could not exist before that cancellation occurred.
Mr Dobbie submitted that the purported notice does not comply with s. 135(1)(b)(ii) of the Act, as it was given while the applicants were outside Australia. The notice given was invalid, as it had to state that the applicants had 70 days to respond, not 28 days.
As to the second leg of the ground, it was submitted that the second applicant, Ms Chen, had not been given a section 135 notice at all, so that her visa could not be cancelled under s. 134(4). The reason why it was submitted that Ms Chen had not been given a notice at all was that there had been no compliance with Subregulation 2.55(3A), which deals with giving documents to minors. It prescribes:
(3A) If the person is a minor, the Minister must give a document mentioned in paragraph (1)(a) or (c) in one of the following ways:
(a) by handing it to the minor personally;
(b) by handing it to another person who:
(i) is at the last residential or business address for the minor that is known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating and then dispatching the document:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the minor’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(iii) other electronic means;
to the minor’s last fax number, e-mail address or other electronic address known to the Minister;
(e) by dating and then dispatching the document:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to a carer of the minor at the last fax number, e-mail address or other electronic address for the carer of the minor that is known to the Minister.
Mr Dobbie argued that the Tribunal erred when it found that the purported notice given to the first applicant appropriately satisfied the notice requirements under s. 135 for the second applicant.
Section 135(1) provides:
Before cancelling a visa under subsection 134A(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;
(ii) if the notice is given outside Australia – 70 days after the notice is given.
Mr Dobbie submitted that both s. 135 and Subregulation 2.55(3A) require strict compliance, because of the use of the word “must”. As there is a mandatory obligation to give a prescribed notice, it is no answer to say, as the Tribunal did at paragraph 23 of its decision, that “the implicit objective of the legislation was satisfied”.[17] He referred to the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[18], where McHugh J said:
If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no “partial compliance” with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act.[19]
[17] Court Book 79 at [23]
[18] [2005] HCA 24; (2005) 215 ALR 162
[19] [2005] HCA 24; (2005) 215 ALR 162 per McHugh J at [77]
Mr Dobbie submitted that the notice addressed to the second applicant’s mother cannot be construed as a notice to the second applicant.
It was also submitted that the notice does not comply with the requirements of s. 135(1)(b)(ii) as it was given whilst the applicants were outside Australia. The notice invited the applicant(s) to submit a response within 28 days after the notice was received.[20] However, both applicants were outside the country at the time, so they should have been given 70 days, not 28 days. Thus, it is submitted, the notice is invalid.
[20] Court Book at 21
The First Respondent’s Submissions
Mr Potts of counsel appeared for the Minister.
As to the applicants’ first ground, that the cancellation under s. 134(1) of the visa held by the primary visa holder is a condition precedent to the valid exercise of the power to give notice to a secondary visa holder under s 135(1), Mr Potts submitted that there was a logical fallacy in the applicants’ argument that there needs to be a prescribed state of mind before a section 135 notice can be given. The fallacy is the assumption that the state of mind can only exist in relation to a secondary visa holder once the primary visa holder’s visa has been cancelled.
It was submitted that the legislative scheme envisages that the Minister will have reached a point at which he intends to cancel the visa, subject to consideration of any representations that the visa holder wishes to make. In sending a section 135 notice to the secondary visa holder, the Minister is indicating an intention to cancel the primary visa holder’s visa; as a consequence the Minister would cancel the visa held by the secondary visa holder.
Mr Potts further submitted that there was no absurdity in respect of the fact that there are two different periods of time prescribed for making representations, 28 days and 70 days, depending on whether the visa holders are inside or outside Australia at the time the notice is given. Further, it was submitted that the applicants had not explained how in practice a situation would arise where the Minister would give a section 135 notice to a secondary visa holder without reference to the primary visa holder.
Further, it was argued that the applicants’ claim that the s. 135 notice was invalid because it was given whilst the applicants were outside Australia but only referred to a period of notice of 28 days and not 70 days cannot stand, because the notice was given in Australia. It was sent to the applicants’ authorised recipient, their migration agent, via email and by fax to addresses in Australia.
However, he submitted, even if there was some error, the applicants needed to identify some relevant practical unfairness as a result. He referred to the decision of the High Court in Minister for Immigration and Citizenship v SZIZO[21], where it was held that it is necessary to consider whether, if there was a failure to comply with s. 135, it was Parliament’s intention that this particular would invalidate the giving of notice. The Court drew a distinction between “inviolable restraints conditioning the Tribunal’s jurisdiction” on the one hand, and “procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing.”
[21] [2009] HCA 37; (2009) 238 CLR 627
If it were a breach of a procedural step, it would be necessary to consider whether that breach gave rise to any denial of natural justice.
In this case, he submitted, the applicants responded through their migration agent within 28 days. There was no relevant denial of natural justice and it did not result in any practical injustice or unfairness to the applicants. The Full Court of the Federal Court now requires the same approach to be taken (see SZOFE v Minister for Immigration and Citizenship[22]).
[22] [2010] FCAFC 79; (2010) 185 FCR 129 at [66]-[67]
Turning to the applicants’ claim that the second applicant, Ms Chen, was never given a notice under s. 135, Mr Potts submitted that, to the extent that there was a technical defect in the notice to the second applicant because it was addressed to her mother, this does not automatically lead to the invalidity of the notice for all purposes.
When a technical defect arises in a notice, the Court must examine the nature of the defect and the consequences of any failure to comply strictly with s. 135(1). The Court must then consider whether in those circumstances it was the intention of the Parliament that the notice would be invalid (see Minister for Immigration and Citizenship v SZIZO[23] and SZOFE v Minister for Immigration and Citizenship[24]).
[23] supra
[24] supra
It was also submitted that both regulations 2.55(3A) and 2.55(9) are relevant.
Counsel for the Minister submitted that a notice was plainly sent to Ms Chen’s mother and guardian, and was also sent to Mr Han, the applicants’ authorised recipient. Although it was expressed in language addressed to Ms Fan’s visa, the notice also made it plain that the Minister was also proposing to cancel Ms Chen’s visa, and was also an invitation to her to respond. Mr Han responded on behalf of all of the applicants.
It was submitted that it cannot have been the legislative intent that in those circumstances the notice the minor would have been invalid. Regulation 2.55(9) points strongly against that intent. Further, s. 135 of the Act is not a provision that requires a document to be given to a visa holder by one of the methods specified in s. 494B, and therefore, under s. 494A, the Minister may give the document by any method that the Minister considers appropriate.
Thus, counsel for the Minister submitted that any technical defects in the notice were akin to a procedural breach of the kind identified in SZIZO and SZOFE. Accordingly, there was no practical injustice to the second applicant. The notice came to the attention of the second applicant’s mother and her authorised recipient, and a response was made within the 28 day period. Therefore, the technical breach did not lead to the invalidity of the notice, which was still sufficient to enliven the power of cancellation under s. 134(4).
Conclusions
The first ground in the application relates to both applicants.
It is argued that the s. 135 notice given to the secondary visa holders is invalid because it is a condition precedent that the primary visa holder’s visa must actually have been cancelled before the notice is sent to the secondary visa holders. It was further argued that the Minister needs to have a state of mind, namely that the Minister proposes to cancel the visa, which can only come into existence in respect of the secondary visa holder once the primary visa holder’s visa has been cancelled.
Subsection 134(4) provides:
Subject to subsection (5) and to section 135, if:
(a) the Minister cancels a person’s business visa under subsection (1) or (3A); and
(b) a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c) the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa by giving written notice to that person.
However, subsection (5) provides the circumstance in which the secondary visa holder’s visa must not be cancelled:
The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
Again, s. 135(1) requires the Minister to give written notice to a visa holder:
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.
Subsection 134(4) requires the Minister to cancel the visa of the secondary visa holder once the primary visa holder’s visa has been cancelled, unless the cancellation of the secondary visa holder’s visa would result in extreme hardship to that person (s. 134(5)). This is subject to the requirement under s. 135 that the Minister must give both the primary visa holder and the secondary visa holder the opportunity to make representations within a specified period of time. The primary visa holder can, of course, make representations about matters pertinent to subsections (1) or (3A), noting the guidelines, which are non-exhaustive, set out in subsection (3). However, the secondary visa holder can only make representations about extreme hardship.
In my view, it does not follow that the Minister can only call on the secondary visa holder to make representations under s. 135 once the primary visa holder’s visa has been cancelled. The decision to cancel the primary visa holder’s visa will normally be made after considering all the representations made by the primary visa holder. If those representations are unsuccessful, the visa will be cancelled. It follows that the visa of the secondary visa holder will also be cancelled, unless that person satisfies the Minister that this cancellation would result in extreme hardship.
To my mind, there is nothing in either s. 134 or s. 135 that requires the Minister to wait until the primary visa holder’s visa is actually cancelled before issuing a notice under s. 135 to the secondary visa holder giving him or her the opportunity to make representations on the limited issue of extreme hardship.
The language of the sections does not require the decision to be made to cancel the visa of the primary visa holder before issuing a notice under s. 135 to the secondary visa holder. As the cancellation of the secondary visa holder’s visa must follow unless it would result in extreme hardship, it would clearly be more practical for the Minister to have that information available at the time of cancelling the visa of the primary visa holder.
The argument raised about an “absurdity” arising from different periods of time, 28 days or 70 days, according to whether the visa holders are in Australia or outside Australia does not, with respect, lead anywhere. I am unable to discern any absurdity in practice, just as I am unable to envisage a situation where a section 135 notice would be given to a secondary visa holder without reference to the primary visa holder. There would be no point in doing so, because the cancellation of the secondary visa holder’s visa flows from the cancellation of the visa of the primary holder.
It can certainly be said that the cancellation of the primary visa holder’s visa is a condition precedent to the cancellation of the secondary visa holder’s visa under s. 134, but it is not a condition precedent to the giving of notice under s. 135.
I am not persuaded that the notice to the applicants was invalid because they were outside Australia at the time and were only given 28 days. There seems to be no issue that both applicants were outside Australia at the relevant times[25], but nothing turns on that, because the notice was given to their authorised recipient, Mr Han, who was inside Australia at the time and made representations on behalf of the entire family.
[25] Supplementary Court Book at 1 and 7
The applicants’ first ground of review has not been made out.
The next matter to be decided is the ground that relates only to the second applicant, Ms Zeqian Chen, who is a minor. It is argued that she did not receive a notice under s. 135 at all, because the notice to her mother did not meet the requirements of subreg. 2.55 (3A).
Counsel for the Minister has referred the Court to the provisions of subreg. 2.55(9), which provides:
(9) If:
(a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of the document;
the Minister is taken to have given the document to the person and the person is taken to have received the document:
(c) at the time specified by this regulation for that method; or
(d) if the person can show that he or she received the document at a later time – at that later time.
The Minister relies on the decisions in SZIZO and SZOFE in support of the proposition that the Court should examine the nature of the defect and the consequences of any failure to comply strictly with s. 135(1). The court must then consider whether in those circumstances Parliament intended that the notice would be invalid.
In Minister for Immigration and Citizenship v SZIZO[26], there were six applicants for review, all members of the one family living at the one address. The first applicant nominated his eldest daughter, another applicant (SZIZQ), as the authorised recipient. Neither the first nor the second applicant spoke or were literate in English, but their daughter spoke and was literate in Arabic, French and English. However, the Tribunal sent notice of the hearing addressed to the first respondent, instructing him to inform the other applicants of its contents. All of the applicants attended the hearing, evidence was given and an invitation was extended for further submissions to be made. The Tribunal subsequently affirmed the decision under review.
[26] supra
The High Court held that in the circumstances the failure to address the notice to the authorised recipient had not affected the validity of the hearing or of the decision.
Their Honours said:
24. It is well established that the denial of natural justice to an applicant for a visa may result in a decision that exceeds jurisdiction for which prohibition will go.[27]This is not such a case. The Full Court found that no unfairness or prejudice was visited upon any of the respondents by reason of the
Tribunal’s failure to comply with its statutory obligation. It approached the matter on the footing that each procedural step in Divs 4 and 7A imposed an imperative duty on the Tribunal forming part of the statutory statement of the hearing rule.
25. The Act does not provide for the consequences of non-compliance with any of the provisions of Div 4 or Div 7A.
26. Written notice of the invitation to appear before the Tribunal to give evidence and to present arguments (s. 425(1)) came to the attention of the applicants for review (the respondents in this Court) and their authorised recipient (s. 441G) within the prescribed period (s 425A(3)). The notice contained the matters prescribed by the Act (ss 425A(1)), (426(1)). The notice was given to one of the applicants for review (the first respondent) in one of the ways provided by s 441A. There was no dispute, however, that the Tribunal did not give the notice of hearing to the authorised recipient. When s 441G(1) provides that, if an applicant for review has nominated an authorised recipient, ‘the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant’, what consequence follows if an invitation to attend a hearing was not given to the authorised recipient, but was given to one of the applicants for review, and came to the attention of other applicants for review and the authorised recipient in due time? Was it a purpose of the legislation that. Despite holding a hearing at which all of the applicants for review, including their authorised recipient, appeared before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review (s 425(1)), the Tribunal could not validly decide the review?[28]
[27] Footnotes omitted
[28] [2009] HCA 37; (2009) 238 CLR 627 at [24]-[26]
Their Honours referred to the High Court’s earlier decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[29], which concerned compliance with s 424A of the Act, and said at [31]:
It is to be observed that the obligation imposed by s 424A, that the Tribunal give an applicant written particulars of any adverse information including the relevance of that information to the review, is of a different character to the obligation imposed on the Tribunal to give notice of a hearing in the manner that is prescribed by s 441A.
[29] supra
Their Honours concluded:
35 . While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal’s obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity, without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal’s omission and they do not take issue with the Full Court’s characterisation of the result in the circumstances as being ‘rather absurd’…
36. Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of the imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal’s jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.
The Full Court of the Federal Court followed this decision in SZOFE v Minister for Immigration and Citizenship[30], which was a case that referred to s 66(2) of the Act.
[30] supra
In SZOFE the applicant claimed that the notice she had received stating that her protection visa had been refused was invalid because it did not state where the application for review could be made, as required by s 66(2)(d)(iv). The notice gave details of some of the Refugee Review Tribunal registries, including the one in Sydney, where she lived. The applicant successfully lodged an application for review at the Sydney Registry.
The Full Court held that:
i)A failure to list every location where an application for review can be made does amount to jurisdictional error in every case; and
ii)Section 66(2)(d)(iv) was satisfied because the applicant was notified of everything she needed to know to apply for review.
Their Honours (Emmett, Buchanan and Nicholas JJ) held at [67]:
However, in our view there cannot be an adequate assessment of whether the requirements of s 66 of the Act have been breached, or of whether the jurisdiction of the RRT[31] was not engaged, without some examination of the consequences of the alleged non-compliance. The judgment of the High Court in SZIZO has expressly drawn attention to the need to evaluate the practical consequences of failure to comply with procedural obligations under the Act. It is no longer possible, if it ever was, to speak of ‘imperative obligations’ under the Act without specific attention to the purposes they are intended to serve. If the asserted failure to comply with s 66 is tested in that manner then the proposition that in all cases potential applicants for review must be advised of all places at which an application might be lodged, or to which it might be sent, cannot be sustained. The consequences of an alleged lack of information need to be assessed in a particular case.[32]
[31] Refugee Review Tribunal
[32] [2010] FCAFC 79; (2010) 185 FCR 129 at [67]
Applying these decisions, it appears that the Court should ask whether it was the intention of the legislature that any departure from the requirements of subregulation 2.55(3A) would result in invalidity without consideration of the extent and consequences of the departure from those requirements.
The circumstances are that the notice was sent to the first applicant’s authorised recipient with the advice that it applied not only to the first applicant, but to her daughter. As a result, the authorised recipient, who was the applicants’ migration agent, made a representation to the Minister on behalf of the entire family, including the second applicant. This representation was made within the time prescribed. The delegate noted that a written response was received on 23rd July 2009 via email, but no claims were made that the cancellation would result in extreme hardship for members of the family unit.[33]
[33] Court Book 46
Whilst there was a technical defect in the way that the second application was notified, no denial of natural justice flowed from it. The migration agent made a written response on behalf of the entire family, but made no claim that they would suffer extreme hardship. The first and second applicants’ interests were apparently ignored, as they had no other basis for making representations under s 134.
There is no injustice to the second applicant. There is no jurisdictional error.
The applicants’ second ground of review must fail.
The application will be dismissed.
I will consider the question of costs. Costs usually follow the event. I note, however, that the second applicant is a minor and I would be reluctant, on discretionary grounds, to make a costs order against a minor.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 25 January 2011
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