Himawan and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 578

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 578

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2004/1224

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TJHIE HIMAWAN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date17 June 2005

PlaceMelbourne

Decision

1.     The application to declare the decision under review as invalid is dismissed.

2.     The application should be listed for hearing.

(Sgd)  John Handley

Senior Member

BUSINESS VISA – decision to cancel business visa – notice issued pursuant to s 134 of the Migration Act – meaning of “notice” within s 135 – whether notice of intention to cancel made within three years of arrival of applicant in Australia – decision that notice was valid

Migration Act 1958 (Cth) s 134 (9) and s 135

Re Wibisonoand Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 145

Re Prawiro and Minister for Multicultural and Indigenous Affairs [2003] AATA 1096

Re Wang and Minister for Multicultural and Indigenous Affairs [2002] AATA 499

REASONS FOR DECISION

17 June 2005 Mr John Handley, Senior Member           

1.      The applicant has applied to review a decision made by the respondent on 5 October 2004 to cancel his Business Skill Migration Class (Sub-class 127) Visa (“the visa”).  The matter has proceeded through two pre-hearing conferences and is ready to be listed for hearing.  The applicant’s representative however, has made an application, preliminary to the hearing, to have the decision under review in these proceedings dismissed by reason of it having been made outside the time limits imposed by the Migration Act 1958 (“the Act”).

2.      The circumstances giving rise to this preliminary application may be briefly summarised as follows.

3.      Mr Himawan was issued with the visa under review in these proceedings on 31 October 2000.  He entered Australia on 15 June 2001.  The notice to cancel the visa dated 5 October 2004 and was received by him on 15 October 2004.

4. Section 134 (9) of the Act is in the following terms:

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

(a)   if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or 

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

5. Section 135 of the Act is in the following terms:

135 Representations concerning cancellation of business visa 

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

(a)   stating that the Minister proposes to cancel the visa; and 

(b)   inviting its holder to make representations to the Minister concerning the proposed cancellation within: 

(i)if the notice is given in Australia—28 days after the notice is given; or 

(ii)if the notice is given outside Australia—70 days after the notice is given. 

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

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

(4)If: 

(a)   the time specified in the notice ends after the end of the period referred to in subsection 134(9); and 

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

the Minister is not to proceed with the cancellation. 

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

6. Having regard to the dates referred to earlier, I am satisfied that for the purposes of s 134 (9) of the Act, the three year period shall commence on the date that the applicant did enter Australia being 15 June 2001. That date is relevant because at the date that the visa was approved (31 October 2000), the applicant was not “in Australia”.

7. For the purposes of s 135 of the Act, the respondent, by his representative, gave a written notice to the applicant which stated an intention to cancel the visa. That notice was issued on 21 April 2004 and is found at T16, page 68 of the T‑documents.

8. In so far as s 135 (4) of the Act is concerned, it is made up of two parts both of which must be satisfied.

9. Having regard to the language of s s 135 (1) of the Act, I am satisfied that the “notice” is the notice of intention to cancel the visa. The context of s 135 does not permit any other interpretation. The whole of s 135 is concerned with the events which must precede a decision to cancel. Any other interpretation would be illogical. I am not satisfied that the “notice” in s135 (4) is the notice of cancellation as the applicant’s representative asserted.

10.     Additionally I am satisfied that the “period” referred to in ss 135 (4) (a) is the period of time between 21 April 2004, being the date of that notice, and 31 May 2004, being the date by which representations should have been received as directed by the “notice”.

11. I am therefore satisfied that s 135 (4) (a) would only apply to the benefit of the applicant if the period specified by the “notice” expired more than three years after 15 June 2001.

12.     In the present case the ending of the period specified by the “notice” occurred on 31 May 2004 which was within a three year period expiring on 14 June 2004.

13. The 90 day time limit, upon which the applicant also attempts to rely, has no relevance, in this instance as s 135 (4) requires that both sub-paragraphs (a) and (b) be satisfied.

14.     These issues have been discussed and similar findings made, in a number of AAT decisions including Re Wibisonoand Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 145; Re Prawiro and Minister for Multicultural and Indigenous Affairs [2003] AATA 1096; Re Wang and Minister for Multicultural and Indigenous Affairs [2002] AATA 499.

15.     The submission that the Minister should not proceed with the cancellation does not have merit.

16.     Accordingly the application to review the decision to cancel the visa shall proceed.  The matter should be listed for hearing.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Alice Beattie
  Associate

Date of Hearing  10 June 2005
Date of Decision  17 June 2005
Solicitor for the Applicant          Mr D Tanzil
Solicitor for the Respondent     Mr B Wee