Kok and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 1271
•30 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1271
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/445
GENERAL ADMINISTRATIVE DIVISION ) Re CHEE YEN KOK Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
INTERIM DECISION
Tribunal M J Allen, Member Date30 November 2004
PlacePerth
Decision 1. The notice of intention to cancel his visa that was given to the applicant satisfied the requirements of sections 134 and 135 of the Migration Act 1958.
2. The matter be listed for a further hearing in relation to the merits of the decision to cancel the applicant’s visa.
...............(sgd M J Allen).........................
Member
CATCHWORDS
IMMIGRATION – citizenship – cancellation of business visa – consideration of preliminary issue of whether notice of intention to cancel his visa given to the applicant satisfied the requirements of sections 134 and 135 of the Migration Act 1958 – whether address in Australia to which the notice of intention to cancel was despatched was the last known residential address of the applicant – conclusion that notice of intention to cancel visa was properly given – matter to be listed for further hearing in relation to merits of the cancellation decision
Migration Act 1958 ss 134, 135
Migration Regulations 1994 reg 2.55
REASONS FOR INTERIM DECISION
30 November 2004 M J Allen, Member 1. On 28 October 2003 a delegate of the respondent cancelled the subclass 127 business skills visa held by the applicant and several of his family members. The applicant has applied for a review of the decision relating to the cancellation of his visa but applications for review have not been made by the family members.
2. In June 2004 Deputy President Hotop ordered that a preliminary issue be heard and determined prior to a hearing of the merits of the cancellation decision. That preliminary issue was whether notice of the intended cancellation of the applicant’s visa had been given in accordance with the requirements of the Migration Act 1958 (“the Act”) and these reasons for decision concern only that issue. For the reasons set out below I have determined that proper notice of the intended cancellation was given.
3. At the hearing of the matter the applicant represented himself with the assistance of an interpreter in the Mandarin language, and the respondent was represented by Mr Blades, a solicitor with the Australian Government Solicitor.
4. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Tribunal Appeals Act 1975 (“the AAT Act”) (T1 – T17). Oral evidence was given by the applicant. After the hearing the applicant filed an affidavit sworn on 26 August 2004 (which I will refer to as exhibit A1) and the respondent adduced further evidence by way of affidavits sworn on 27 August 2004 and 29 October 2004 by Mr Joe Pulciani and Ms Brooke Griffin respectively, both of whom are officers in the respondent’s department. I will refer to Mr Pulciani’s affidavit as exhibit R1 and Ms Griffin’s affidavit as exhibit R2.
The Evidence
5. The background to the matter is that the applicant and his family members were granted visas in June 2000 and the applicant first arrived in Australia under his visa on 7 July 2000. By the time a notice of intention to cancel (“NOIC”) was posted to the applicant in June 2003 he had visited Australia on 15 occasions (see annexure JP1 to exhibit R1.
6. In October 2002 the respondent’s department posted to the applicant at an address in the suburb of Maylands in Western Australia, a 24 month survey form for completion (T8). That address had been obtained by the department from what is known as the “Settlements Database”, which is one of three computerised databases maintained by the department.
7. Document T8 requested completion and return of the survey form by 9 December 2002, but it was not until April 2003 that the department received a response from the applicant. At T page 105 is a letter from the applicant to the department dated 20 March 2003, the subject of which is stated as “Survey of business skills migrant – 24 months (Form 1010)” in which the applicant referred to the letter dated 21 October 2002 and stated:
“I wish to apologize for the late reply. This is because I have shifted to my new address and the new tenant at my old address has just forwarded the form to me recently. I would appreciate if you could kindly forward all the correspondence to my new address as below with immediate effect.”
There followed an address in the suburb of Karawara in Western Australia (“the Karawara address”). That letter is date stamped showing that it was received by the department on 3 April 2003, and I find that it was so received.
8. The department also received the completed 24-month survey form together with considerable documentary material supplied by the applicant concerning his activities in Australia – which appear at pages 106 – 152 of the T documents. At the hearing there was some dispute as to whether the 24-month survey form had been sent to the department with the letter dated 20 March 2003. The applicant said he could not remember whether the letter and the completed survey form were sent together, but I am satisfied that they were.
9. In exhibit R1 Mr Pulciani explains the department’s procedures for handling mail that is received, noting that on occasions only a covering letter will be date stamped. At para 15 of exhibit R1 Mr Pulciani states that he has examined the original survey form maintained on the department’s file and confirms that there is no date stamp on it. Had the survey form been received separately from the covering letter, normal practice would have meant that it would have been separately date stamped. In addition, on 3 April 2003 an officer of the department created a file note that forms part of what is known as the “Access Database” in relation to the applicant – recording, for an “event date” of 3 April 2003, the following comment: “Covering letter, 24-month survey and supporting documents received from [the applicant] (NB [the applicant] has changed address to [the Karawara address])”. (see annexure JP2 to exhibit R1).
10. I am satisfied, and I find, that the survey form and the accompanying document were received by the department on 3 April 2003 under cover of the letter of 20 March 2003.
11. The first page of the 24 month survey form (T page 106) contains details supplied by the applicant. The relevant points are as follows:
·the applicant answered “yes” to the question of whether he agreed to the department communicating with him by “facsimile, email or other electronic means”. He supplied an email address;
·the applicant provided the Karawara address as a contact address in Australia but did not provide contact telephone numbers or facsimile numbers in Australia;
·the applicant provided a Malaysian address as his contact address overseas and provided Malaysian telephone and facsimile numbers;
·in response to the question “To which address do you want correspondence regarding your case sent?” the applicant ticked the box applicable to his overseas address.
In other parts of the survey form the applicant advised that he had not yet engaged in a business in Australia and that he was still actively involved in a business at the Malaysian address provided.
12. The decision to issue notices of intention to cancel the visas was made on 23 June 2003 and the NOIC were posted on that day. Mr Pulciani said in paras 17 and 18 of exhibit R1 that he had sent the NOIC by registered mail to the applicant’s address in Karawara in accordance with the request in T10 and also because he would have been aware that there was an incoming passenger card (“PAX card”) on the applicant’s file relating to the applicant’s arrival in Australia on 9 November 2002 – in which the applicant gave the Karawara address as his intended address in Australia and stated that he intended to live in Australia for the next 12 months. That PAX card had been obtained by the business skills section of the department on 19 March 2003.
13. Although they were not available to Mr Pulciani at the time of despatching the NOIC, the applicant had also nominated the Karawara address in two other PAX cards, being those relating to his arrivals in Australia on 23 April 2003 and 5 June 2003 (see annexure JP5 to exhibit R1). In the PAX card for the arrival on 23 April 2003 the applicant stated that he intended to live in Australia for the next 12 months but in the PAX card for the arrival on 5 June 2003 the applicant said that he did not intend to so live in Australia.
14. The NOIC that was despatched to the Karawara address were posted on 23 June 2003 (see annexure JP6 to exhibit R1 and annexure BG3 to exhibit R2) and invited the applicant to make representations concerning the proposed cancellation of his visa by 30 July 2003 (T15). Annexure JP6 to exhibit R1 is a copy of an Australia Post “Lodgement Document” used by the department to record registered mail despatched. It shows the two items despatched to the applicant and his wife on 23 June 2003. The names of several other persons to whom NOIC visas were despatched on the same day have been deleted from annexure JP6. Annexure BG3 to exhibit R2 is a copy of the same document, but shows the names of those other persons. I have made an order pursuant to s 35 of the AAT Act restricting access to annexure BG3 in order to preserve the confidentiality of those other names.
15. An NOIC in similar terms was despatched to the applicant at his Malaysian address on the same day and nominated the same date for the making of submissions (T14). Also on 23 June 2003 Mr Pulciani sent an email to the applicant at the email address nominated by the applicant in the 24-month survey form. Attached to that email were copies of the NOIC addressed to the applicant and his family members.
16. Whether or when the applicant received that email, and when he received the letter posted to the Malaysian address is not established by any evidence, but it is established that by 7 July 2003 the applicant had received by one of those means the NOIC – because on that day the applicant telephoned the delegate at the department whose name appeared on the NOIC. According to the attachment to exhibit A1 the applicant made two telephone calls to the department on that day at approximately 10.31 am and 11.47 am, the former of which lasted for 34 seconds and the latter lasting for 7 minutes 46 seconds. Annexure JP8 to exhibit R1 is a file note made by the delegate on 7 July 2003 as follows:
“[the applicant] rang to say that he received the NOIC and is very concerned. His new secretary completed the form for him but he did not check it. He also said that he was in Australia and attended some business seminars, however, he had to return to Malaysia due to business and family problems. He claims that he has sold his business in Malaysia and is committed to doing business here. I advised him of the evidence we require to determine whether he has made a genuine effort to engage in business”.
17. The applicant returned to Australia on 18 July 2003 and on 22 July 2003 collected and signed a receipt at the Karawara post office for the NOIC that had been posted to the Karawara address: (annexure JP7 to exhibit R1).
18. By letter dated 1 August 2003 the applicant made representations and provided supporting documentation concerning the proposed cancellation of his visa. Although that letter is not date stamped by the department, the Access Database contains a file note made on 6 August 2003 to the effect that a response to the NOIC had been received from the applicant and his wife on that day.
19. After consideration of the submissions and other material the decision to cancel the visas was made on 28 October 2003.
20. The applicant said in his oral evidence that he had owned the property in Karawara as early as November 2002 but that it was rented out for some time, although his intention was that his family would live there eventually. His practice, when visiting Australia, was to stay in serviced apartments but he thought that he should provide a residential address in Perth on the PAX cards when he arrived even though he was not living at the Karawara address at the relevant times.
21. The applicant said that his statement in the letter of 20 March 2003 (T3) that he had “shifted to my new address” was not true because he was not living at the Karawara address and was, in fact, still living in Malaysia.
22. When asked why the letter of 20 March 2003 requested that all correspondence be sent to the Karawara address, whereas the 24-month survey form asked that correspondence be sent to his overseas address, the applicant said that he wanted important documents to go to the overseas address but he wanted ordinary or less important documents to go to the Karawara address.
Statutory Framework
23. Sections 134 and 135 of the Act deal with the cancellation of business visas. Subsection 134(1) relevantly 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 matters specified in that subsection. However, s 134(9) relevantly provides that a visa must not be cancelled under s 134(1) unless a notice under s 135 was given to the holder of a visa within the period of 3 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.
24. The notice under s 135 that is referred to in s 134(9) is a notice under s 135(1). That subsection provides that before cancelling a visa under s 134 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) or within 70 days after the notice is given (if the notice is given outside Australia).
25. Section 135(2) and (3) relevantly provide that the holder may make representations to the Minister within the time specified in the notice and that the Minister must give due consideration to any representations.
26. Section 135(4) relevantly provides that if the time for making representations specified in the notice given under s 135(1) ends after the 3 year period referred to in s 134(9) then a cancellation decision must be made before the end of a period of 90 days commencing at the time specified in the notice.
27. Regulation 2.55 of the Migration Regulations 1994 applies to “the giving of a document to a holder … of a visa relating to the proposed cancellation … of a visa under the Act.”. Reg 2.55(3) provides that, for such a document, “… the Minister must give the document in one of the following ways …”. One of the ways specified is contained in reg 2.55(3)(c) which relevantly provides that the document can be given by dating it and despatching it within 3 days of the date of the document by prepaid post or other prepaid means “… to the person’s last residential address, business address or post box address known to the Minister”.
28. Another specified means by which a document can be given is set out in reg 2.55(3)(d), which provides that the document may be given by transmitting it by fax, email, or other electronic means “… to the last fax number, email address or other electronic address known to the Minister”.
29. Reg 2.55(7) relevantly provides that if a document is given by despatching it by prepaid post or other prepaid means, the person to whom it is despatched is taken to have received the document 7 working days (in the place of the address) after the date of the document if the document was despatched from a place in Australia to an address in Australia; and 21 days after the date of the document if despatched to an address in another place. Reg 2.55(8) relevantly provides that if a document is given by fax, email or other electronic means then a person is taken to have received the document at the end of the day on which the document is transmitted.
Consideration
30. The respondent conceded, in both the Statement of Facts and Contentions filed in the proceedings and in the oral submissions made at the hearing, that the NOIC despatched to the applicant on 23 June 2003 by email and by mail to the address in Malaysia did not satisfy the requirements of s 135(1) because, having been sent to an address outside Australia, they did not specify the 70 days for the making of submissions by the applicant as required by s 135(1). In the case of the email, it was taken to have been received by the applicant on 23 June 2003 and the date specified by which representations were to be made (namely 30 July 2003) provided a period of only 37 days. In the case of the letter despatched to the Malaysian address, it was taken to have been received by the applicant 21 working days after 23 June 2003 (ie on 14 July 2003), allowing only a period of 16 days for the making of submissions.
31. The issue to be determined in the preliminary issue is whether the NOIC that was despatched to the applicant at the Karawara address satisfied the requirements of the Act in relation to the giving of notice. For the applicant it was submitted that notice could not be given at all to the Karawara address and that the only proper address that could be used for the giving of notice to the applicant was his Malaysian address.
32. In considering whether the notice requirements in s 134 and s 135 of the Act have been complied with, the first relevant date is 2 July 2000, that being the date of the applicant’s first arrival in Australia under the visa. The 3-year period specified in s 134(9) therefore ended on 6 July 2003 and any valid NOIC must have been actually received, or taken to have been received, by the applicant by that date.
33. Because the respondent acknowledges that the NOIC sent by email and by mail to the Malaysian address were not valid notices, the question that must be determined is whether it was open to the respondent to give the NOIC to the applicant by despatching it by mail to the Karawara address and, if it was so open, whether the NOIC would have been taken to be received by 7 July 2003. It is apparent from the evidence outlined above that the applicant had received an NOIC by 7 July 2003 at the latest because he telephoned the department on that day to discuss the matter – but whether he received the email version or the version sent by mail to the Malaysian address is not clear.
34. It appears from the evidence above that the applicant did not in fact receive the NOIC that was sent to the Karawara address until he signed and received the document on 22 July 2003. However, I am satisfied from annexure JP6 to exhibit R1 that the NOIC was despatched by registered prepaid post to the applicant at the Karawara address on 23 June 2003, that being within 3 days of the date that the NOIC bore. Accordingly, by virtue of reg 2.55(7), that document is taken to have been received 7 working days after 23 June 2003, ie by 2 July 2003 and the latter date is prior to the expiration of the 3-year period. Accordingly, the NOIC will have been given to the applicant within the relevant period provided that it was open to the respondent to give the applicant the NOIC by despatching it to the Karawara address.
35. The requirement in reg 2.55(3)(c) is that the document be despatched to the person’s last residential address, business address or post box address known to the Minister. No issues of business address or post box address arise.
36. For the respondent it is contended that the Karawara address was the last residential address for the applicant known to the Minister, but the applicant contends that the respondent had no reasonable grounds for considering that address to be the applicable one and that the Malaysian address was the correct one to use.
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”.
At the time of despatch of the NOIC in June 2003 the respondent had received somewhat contradictory advice from the applicant regarding communications with him. On the one hand the letter of 20 March 2003 contained specific advice that the applicant had “shifted to [his] new address” and contained a specific request that all correspondence be sent to that “new address”, namely the Karawara address.
38. On the other hand, the 24-month survey form that had been received at the same time asked that correspondence be sent to the applicant’s overseas address. However, the respondent also had, at the time of despatching the NOIC, information from the PAX card for the arrival of the applicant in Australia on 9 November 2002 that the applicant’s intended address in Australia was the Karawara address and that the applicant intended to live here for the next 12 months. Although the officer who despatched the NOIC did not have it, the department was also in possession of additional information by way of the PAX cards for the applicant’s arrivals on 23 April 2003 and 5 June 2003 containing the information set out in para 13 above.
39. In the light of the information that was available to the respondent, and particularly available to the officer who despatched the NOIC, I consider that the Karawara address was known to the Minister with the degree of certainty required and that it was known to be a residential address. It was in fact the last residential address of the applicant known to the respondent at that time. The fact that the applicant may have had an additional residential address in Malaysia does not mean that the Karawara address could not be a residential address for the applicant. The specific request in the letter of 20 March 2003 that correspondence be sent to the Karawara address took precedence over the request in the 24-month survey form. Accordingly, in my opinion, the despatch of the NOIC to the Karawara address was despatch to the last residential address for the applicant known to the respondent and, accordingly, it was a means of giving the NOIC to the applicant that was permitted by reg 2.55. It follows that the NOIC sent to the Karawara address was taken to have been received by the applicant on 2 July 2003 and, by nominating 30 July 2003 as the date by which the applicant had to make representations regarding the proposed cancellation, the NOIC correctly specified a period of 28 days for so doing.
40. For the reasons given above I consider that the NOIC given to the applicant was given in accordance with the requirements of s 134 and s 135 of the Act, and I determine the preliminary issue in the respondent’s favour. Accordingly, it is necessary for the matter to be relisted for further hearing so that the parties can present evidence and make submissions concerning the merits of the cancellation decision.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of M J Allen, Member
Signed: ................(sgd V Wong).................................
AssociateDate/s of Hearing 30 July 2004
Date of Decision 30 November 2004
Counsel for the Applicant In person
Counsel for the Respondent David Blades
Solicitor for the Respondent Australian Government Solicitor
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