Foo and Anor and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 597
•11 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 597
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/510,512
GENERAL ADMINISTRATIVE DIVISION ) Re SIANG KOON FOO, MAO SIONG FOO Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member McCabe Date11 June 2004
PlaceBrisbane
Decision The decision under review is affirmed. ..................Sgd...................
Senior Member
CATCHWORDS
Migration Law – Business skills visa – whether applicant obtained a substantial ownership interest in an eligible business in Australia – business is not eligible business – applicant has not utilised skills in actively participating at a senior level in day-to-day management – applicant has not made genuine efforts – whether residual discretion should be exercised – decision affirmed
Migration Law – Supplementary visa – applicant in de facto relationship – whether applicant would face extreme hardship if visa were cancelled – decision affirmed
Administrative Law – procedure – error in notice given to applicant under Migration Act – whether error invalidates notice – mandatory and directory provisions – error does not invalidate notice
Migration Act 1958
Migration Regulations 1994
Tien v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 53 ALD 32
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490.
Hamilton v Minister for Immigration, Local Government and Ethnic Affairs (1993) 35 ALD 205
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Re Ong and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178
Re Ng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 229
Wang and Minister for Immigration and Multicultural Affairs [2000] AAT 961
Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31
REASONS FOR DECISION
11 June 2004
Senior Member McCabe Introduction
1. The Minister decided to exercise his power under s 134 of the Migration Act 1958 (the Act) to cancel Siong Koon Foo’s business skills visa on 16 May 2003. Mr Foo has asked the Tribunal to review that decision. The Minister also decided to cancel the contingent secondary business skills visas of Geok Suan Goh (the applicant’s wife) and Mao Siong, Mao Jiun and Swee Lin (the applicant’s children). The family members have also asked the Tribunal to review the decisions with respect to their visas. The evidence at the hearing related to the applications by Siong Koon Foo (Mr Foo) and Mao Siong Foo (Joseph).
2. The applicants say the Minister’s notice of intention to cancel the visa was defective. In any event, they say the Minister’s decisions are not the correct and preferable ones in the circumstances of each case.
3. I am satisfied the visas should be cancelled. I set out my reasons below.
The material before the Tribunal
4. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following statements were also received into evidence:
• statement of Mao Siong Foo dated 18 February 2004;
• statement of Kim Jin Hee dated 20 February 2004.Also in evidence was a copy of a Form 956 headed “Appointment of person to act as agent”. This form indicated the applicant nominated a Mr Lodge to act as his agent on 6 August 1998.
5. Mr Foo and Joseph both gave evidence at the hearing, as did Ms Kim Jim Hee. Ms Kim is Joseph’s partner. She resides with him on the Gold Coast.
6. The matter was heard on 30 March 2004 in Brisbane. The applicant was represented by Mr Chan, a migration agent. Mr Steele represented the Minister.
The facts
7. The facts are straightforward. Mr Foo is a Singaporean businessman. He is the chief executive of a business that supplies materials used in shipping yards. His business has operations in Singapore, China, Indonesia and the Philippines.
8. Mr Foo told the Australian immigration authorities he would like to establish a business presence in Australia. He applied for a business skills visa. His family members applied for secondary visas. He utilised the services of Mr Keith Lodge, a migration agent. On 27 January 2000 Mr Foo was advised by the Australian High Commission in Singapore that his application (and those of the secondary applicants) had been accepted. He was informed his visa was issued under subclass 127. He entered Australia using his new visa on 12 February 2000.
9. The applicant did not stay in Australia long. I was told at the hearing he spent a total of 39 days in this country. He says he is required to travel overseas to attend to his various business interests. I have no reason to doubt that is so. He says he investigated various business opportunities in the time available to him. He decided against setting up his shipping materials’ business in Australia; he noted there were not many shipyards here, and Australian environmental laws were strict. He also said Australian workers were generally unwilling to engage in the dangerous and unpleasant work involved in his usual business.
10. Mr Foo says he looked at other business opportunities and attempted to arrange meetings. He was unable to produce any documentary evidence in support of his claim, although he assured the Tribunal his efforts were real. It was obvious from his testimony that he relied on Joseph to search out opportunities in Australia on his behalf while he was attending to business overseas.
11. Joseph was 28 years of age at the time of the hearing. He came to Australia in February 1997 as a student. He completed a Diploma of Business course at the Melbourne Institute of Business and Technology in 1998. He subsequently enrolled in a Bachelor of Business degree through Central Queensland University’s Melbourne campus. He withdrew from the course in 2000 when the business skills visa was granted. He says he has been helping his father to identify opportunities since that time.
12. In October 2000, Joseph and his father incorporated a company called Protex International Pty Ltd. Joseph and Mr Foo are the only shareholders and directors of the company. The company was apparently intended to be a vehicle for any business opportunities that might be identified.
13. Joseph’s statement refers to various attempts to investigate and arrange appropriate business opportunities. He says he consulted his father in relation to each venture and took instructions from him. Mr Foo and the company have been unable to identify a suitable business.
14. Joseph lives in Australia with his partner, Ms Kim. They are in a de facto relationship. Joseph and Ms Kim have been together since 1998. He says he only returns to Singapore once or twice a year to see his parents. He has friends in Australia and obviously considers this place to be his home. He speaks English, Mandarin, Hainanese and Hokkien. He previously worked for his father in the family business in Singapore but he has no desire to return there. He says he wants to make his own way in business.
15. Ms Kim is a Korean citizen. She was granted a temporary spouse visa on 4 June 2003 on the basis of her relationship with Joseph. She has asked for a permanent spouse visa. She has not been studying (she graduated with a degree in 2001) and she cannot now apply for a graduate skills visa. She says she understands her visa will be cancelled if Joseph’s visa is cancelled, and she will not be able to remain in Australia.
16. Ms Kim says her family do not know of her relationship with Joseph. They would not approve. She says they want her to marry a nice Korean boy. She said there would be a quarrel although it was unclear whether they would ultimately accept her decision. In any event, she says Joseph would not be eligible to live in Korea even if he married Ms Kim because of that country’s restrictive immigration laws. Ms Kim says she would be pressured into an arranged marriage with someone else if she returned to Korea on her own.
17. Joseph is able to return to Singapore, although he says he has no desire to live there. His father might give him a job – Joseph has worked in the family business before – but he did not want that. Ms Kim could accompany him to Singapore and live there if they were married. Ms Kim says she anticipates marrying Joseph eventually, but they are not ready. Joseph says in his statement the relationship will probably end if he cannot remain with Ms Kim in Australia.
18. The notice of intention to cancel Mr Foo’s visa (and the visas of the family members) was forwarded to the applicant on 10 January 2003. The notice was sent to a post office box in North Richmond – the same address the respondent used when the High Commission wrote to Mr Foo informing him he had been successful in his visa application. It was the address of Mr Lodge, the migration agent. Mr Foo had responded in the affirmative when asked in his visa application whether he wanted “all correspondence about this application to be sent to a person (such as an agent or lawyer) other than you?” Mr Foo says Mr Lodge was only engaged as an agent for the purposes of the visa application, and correspondence relating to issues arising after the visa application was granted should have been directed to another address.
19. The respondent says she does not have any other address for the applicant. The letter was sent to the last known address of Mr Foo and to his old address in Singapore.
20. The dispute over the address on the notice does not end there. Mr Foo pointed out the notice was addressed to “c/- Business Migration to Australia”. He says it should have been addressed to a named person, not a business name.
21. Mr Chan (for the applicants) also says the notice of intention to cancel was defective because it did not give Mr Foo and his family members sufficient time to respond. The notice sent required that the applicants provide any representations by 17 February 2003. Mr Chan calculated that Mr Foo was not in fact allowed 28 days to respond if one excluded the period during which the letter was taken to be in transit (Migration Regulation 2.55(7)(a)). He said only 27 days would have elapsed between the day on which the letter was deemed to be delivered and the 17 February deadline for submissions. He acknowledged Mr Foo and the family members made written representations in response to the notice. Those representations were faxed to the respondent on 16 February 2003. The correspondence foreshadowed the possibility of further submissions being provided the following day. It is not clear whether those submissions were made. In any event, a decision was not made by the respondent until 16 May 2003.
The procedural issues
22. I turn firstly to the issues arising out of the notice of intention to cancel. The applicants say these issues are important because provisions in the legislation setting out notice requirements are mandatory.
23. Clause 2.55(3) of the Migration Regulations 1994 provides that notices of intention to cancel visas may be sent in a variety of ways. Clause 2.55(3)(c) says one mode of notifying the applicant is to send a letter “to the person's last residential address, business address or post box address known to the Minister”. The applicants previously gave Mr Lodge’s name and contact details to the respondent; Mr Foo did not provide a more recent address. I do not think anything turns on the fact the respondent sent the notice to Mr Lodge’s post box instead of his residential address. The Australian High Commission had previously written to Mr Foo at that address when it informed him of his successful application and he did nothing to correct the record. I think the Minister was right to assume the post box was the last known address.
24. I do not think there is any substance to the criticism that the notice was addressed to a business name instead of a named person. The letters (at T9) were addressed to each of the visa holders by name care of “Business Migration to Australia”. They were not addressed to the business name as if it were an entity – they were addressed the visa holders care of that business. I do not think there is any issue under s 494D of the Act in those circumstances.
25. The issue arising out of the length of time afforded to the applicant to respond to the notice is more complicated. Section 135(1) provides that where the Minister forms an intention to cancel a visa:
“…the Minister must give its holder a written notice:
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…”
26. Mr Chan is right when he says the applicants were given a deadline that meant they had 27 and not 28 days to respond to the notice. (In fact, the evidence showed they did not receive a copy of the notice until early in February, although that delay might have been avoided if they had kept the respondent informed of their addresses.) He says that defect in the notice is fatal, which means the Minister could not have made the decision to cancel the visas. He adds it is now too late to issue a fresh notice by reason of s 134(9). He argues the respondent has lost her chance to challenge the adequacy of Mr Foo’s efforts to establish a business and he and his family members must now be permitted to stay in Australia.
27. Mr Chan said s 135 was a mandatory provision. He argued that meant the decision-maker must take each step set out in the provision before he or she was empowered to make the decision contemplated by the provision. If he or she failed to take a step, any decision would be invalid.
28. Mr Chan relied in particular on the decision of Goldberg J in Tien v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 53 ALD 32. The respondent in that case purported to cancel Mr Tien’s business visa. Mr Tien was detained at Melbourne airport when he attempted to enter Australia with another person who had irregular papers. The cancellation process was activated at the airport. Section 121(3) required the Minister to alert the visa holder that grounds for cancellation may exist and provide him with the opportunity to respond. That notice was issued by the immigration officers that day at the airport, while Mr Tien was detained. Section 121(3) says that if the response is to be provided at an interview, the time and place of the interview must be specified. The notice sent to Mr Tien did not specify a time for the interview – he was in custody at the time, and the interview commenced when the immigration officers were ready. Goldberg J concluded the notice was defective and the decision to cancel the visa was not effected lawfully. His Honour said the legislation laid down a process for cancellation and parliament clearly intended that each step in the process must be successfully completed before the next step could validly be taken. His Honour insisted that the Minister stick strictly to the rules laid out in the legislation. The provisions were mandatory, he explained: at 50.
29. Mr Chan also referred me to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490. The High Court’s decision in Project Blue Sky repays careful reading. It offers a clue as to why the decision in Tien should be distinguished. McHugh, Gummow, Kirby and Hayne JJ in Blue Sky criticised the process of classifying statutory provisions as mandatory and directory: at 516. Their Honours explained (at 516-517):
“A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.’"
30. Goldberg J in Tien did not discuss Project Blue Sky and continued to refer to “mandatory” provisions, but his Honour’s decision was nonetheless a product of the analysis required by the High Court. That is clear from his Honour’s discussion of the statutory scheme. After acknowledging that insisting on strict observance of the requirements of s 121(3) might be regarded as “pedantic” his Honour explained (at 50):
“I consider that the procedure required to be not directory but rather mandatory and for good reason. The procedure is designed to cover situations where immediate action is sought to be taken by Departmental officials at airports and where visa holders will often not have access to legal advice or, indeed, any other advice. In many situations English will not be a visa holder's first language. In my opinion, in such circumstances, it is not only desirable but necessary that the relevant statutory provisions be the subject of strict compliance.”
31. Those considerations do not apply to visas being cancelled under s 134. The power of cancellation is exercised in different circumstances. The process does not contemplate “immediate action” at ports where visa holders have no opportunity to seek advice, for example. Section 134 decisions are made in relation to people who are already in Australia and who have ample opportunity to obtain advice and assistance. The decisions are not made quickly. I do not accept that a flawless notice is a precondition to the exercise of the power under s 134.
32. The process for cancelling a visa set out in s 135(1) is an attempt by the parliament to codify the principles of natural justice. The provision is designed to ensure the visa holder is afforded an adequate opportunity to make representations before the decision maker determines whether the visa should be cancelled. If one does not treat the provision as creating a precondition to the exercise of the power, what are the consequences of a failure to strictly observe the rules of natural justice set out therein?
33. At common law, a failure to observe the principles of natural justice would ordinarily result in the decision being set aside. But that is not always the case. If a strict observance of the rules of natural justice would have made no difference to the final result, the decision may stand: see, for example, Hamilton v Minister for Immigration, Local Government and Ethnic Affairs (1993) 35 ALD 205 at 214 per Beazley J. His Honour’s view in that case is clearly consistent with what has fallen from the High Court. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, for example, Mason CJ, Dawson, Toohey and Gaudron JJ said (at 578):
“It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if ‘the decision-making process, viewed in its entirety, entails procedural fairness.’”
34. If a failure to observe the requirements of natural justice does not necessarily invalidate a decision at common law, is the position any different where the requirements of natural justice are set out in the statute? I do not see why the failure to observe the statutory rules should be treated any differently once it is accepted that the procedural steps in a particular case are not preconditions to the valid exercise of the power. The failure to follow the steps may be unlawful, but the decision which results in not necessarily unlawful.
35. Do the facts of this case justify a finding that the decision is valid notwithstanding the failure to strictly observe the process set out in the statute? I think they do. The Minister did not act in this case before hearing from the applicant. While the deadline was not correctly calculated, the applicants were not denied the opportunity to put their case. Their representative noted he had limited time to prepare a case because the notice did not arrive until shortly before the deadline, but I have already concluded the delay was not the respondent’s fault. The representative did not complain at the time that the deadline was calculated incorrectly: the defect was apparently discovered later. In any event, the applicant did make submissions prior to the deadline. The delegate of the Minister did not make a final decision until 16 May 2003 after reviewing the submissions.
36. Moreover the applicants have had ample opportunity to prepare a case for the Tribunal. The Tribunal is able to exercise all of the powers of the decision-maker. The existence of a merits’ review process needs to be taken into account when assessing the fairness or otherwise of the decision-making process as a whole. Brennan J noted in Ainsworth (at 593) that a primary decision-maker’s failure to observe the rules of natural justice might be cured if the reviewer has validly exercised the power.
37. (I note the Tribunal’s role and its implications were not discussed in Tien even though it is authorised to review decisions made under s 116. That is understandable since, as Goldberg J observed in Tien, decisions made pursuant to s 116 might have to be made very quickly. The applicant may not have the opportunity to invoke the Tribunal’s jurisdiction as a practical matter. The existence of merits review might be less significant in those cases than it is in relation to appeals from decisions made under s 134.)
38. I do not think the legislation intended the Minister’s decision should be vitiated by an error in calculation in circumstances where the applicants were afforded and took an opportunity to make submissions. The submissions might have been hurried but that was because the notice took longer than anticipated to reach the applicants and their representatives – a delay resulting from their failure to keep the immigration authorities advised of a more appropriate address. In any event, the applicants had the opportunity to make more considered submissions when the matter came before the Tribunal.
39. Mr Chan said in his written submissions that the applicant might have “brought forward his action to set up an active business in Australia and this appeal would not have been required” if he had a longer time to respond to the notice. I do not accept one day would have made a difference, even supposing that a flurry of activity prompted by a notice would satisfy the decision-maker.
40. I am satisfied the notice of intention to cancel the visa was effective notwithstanding the error in calculating the deadline for a response. I am also satisfied the decision that followed was not tainted. It remains to be seen whether it was the correct and preferable decision in the circumstances.
Was the Minister’s decision the correct and preferable decision in the circumstances?
41. The power to cancel a business visa is set out in s 134. Section 134(1) says the Minister may cancel a visa if the visa holder is unable to meet certain criteria. In particular, the visa may be cancelled if the visa holder
“(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business…”
42. There is no evidence Mr Foo obtained a substantial ownership interest in any eligible business here. Protex International was not trading. Nor was Mr Foo actively involved in the senior management of the business. He was overseas most of the time; although he was in contact with his son and apparently discussed various projects and arranged some meetings, that is not enough. The legislation anticipates the visa holder will be physically present in Australia on a regular basis. A person who seeks to direct operations from abroad will not ordinarily be able to satisfy the requirements of s 134(1)(b): see, for example, ReOng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178 per Senior Member Allen at para 32; ReNg and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 229 per Deputy President Wright at para 12.
43. Section 134(2) says the Minister may not cancel the visa if she is satisfied the visa holder has made (and will continue to make) genuine efforts (a) to obtain the substantial ownership interest referred to in s 134(1) and (b) to participate in the senior management of that business. In the course of making that judgement, the Minister may take into account matters like those referred to in s 134(3). Mr Foo was unable to offer much evidence of the kind referred to in s 134(3). It was apparent he left his son to do most of what little work was done. The Minister could not be satisfied that genuine efforts are being made. I am not satisfied either.
44. There is no evidence that would justify the exercise of the residual discretion in s 134(1) not to cancel the visa notwithstanding the visa holder’s failure to meet the criteria. It follows I am satisfied Mr Foo’s visa should be cancelled.
45. Joseph says cancellation of his visa under s 134(4) will cause extreme hardship because his relationship with Ms Kim will become impossible. Section 134(5) says the Minister should not cancel the visa if doing so results in extreme hardship.
46. The expression extreme hardship is not defined in the legislation, although it clearly involves more than inconvenience or detriment: see Wang and Minister for Immigration and Multicultural Affairs [2000] AAT 961 at para 29 per Deputy President McMahon. One does not need to be certain that extreme hardship will occur: it is enough if the hardship will probably occur: see Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31 per Kiefel J at para 33.
47. I do not think Joseph can claim the cancellation may result in extreme hardship. His relationship is not doomed: the evidence makes it clear Ms Kim can accompany him back to Singapore if they marry. The fact they have chosen not to marry yet is a matter for them. So are the consequences of that choice. The position might be different if they were ineligible to marry - because they were a same sex couple, for example, or because they were unable to satisfy some other requirement for a valid marriage. But that is not the case here.
48. That leaves only the other secondary visa holders. I have already noted there was no evidence offered at the hearing in relation to Geok Suan Goh, Mao Jiun Foo and Swee Lin Foo. I have considered the representations made on their behalf in letters to the respondent dated 16 February 2003 from their migration agent. The letters were sent in response to the notice of intention to cancel the visas. Those letters are found at T5 ff70-72. The letters refer to inconvenience and the loss of opportunity to become Australian citizens. They also speak of concern about the family being split between Australian and Singapore, although that is not likely to be a problem in circumstances where the visas of Mr Foo and Joseph have also been cancelled. I can see no good reason why the secondary visas should not be cancelled. In particular, I can see no evidence of extreme hardship.
Conclusion
49. The decisions under review are affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe
Signed: .....................................................................................
Associate: Thomas RitchieDate/s of Hearing: 30 March 2004
Date of Decision: 11 June 2004
The applicant was represented by Mr Chan
The respondent was represented by Mr Steele
7
0