Law and Ors and Minister for Immigration and Multicultural Affairs - [2006] AATA 709

CATCHWORDS – IMMIGRATION – business visa – cancellation – whether written notice given in Australia or outside Australia – time allowed in notice for recipient to make representations – notice properly given

Acts Interpretation Act 1901 ss 13 and 34AB

Local Government Act 1919 (NSW) ss 139, 628 and 631
Migration Act 1958 ss 5, 52, 116, 118, 118A, 119, 127A, 128, 129, 134, 135, 137B, 137D, 200, 306AF, 306AGAB, 311K, 422B, 434A, 434B, 494A, 494B,494C, 494D, 499 and 504
Migration Amendment Regulations 2002
Migration Legislation (Procedural Fairness) Act 2002

Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001
Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004
Migration Legislation Amendment Act 1994

Migration Regulations rr 1.20S, 1.20US, 2.16, 2.20A and 2.55

Ball v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 374; 75 ALD 199
Goodwin v Phillips (1908) 7 CLR 1

Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1
Re Chin Wook Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 432

Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 432
Re Tanujaya and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 386

Re Teck Lim Heng and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 32

Rokobatini v Minister for Immigration and Multicultural Affairs (1995) 30 AAR 74, 57 ALD 257
Sydney City Council v Garbett Pty Ltd (1995) 69 ALJR 616; 130 ALR 41
SZBZO v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 494
Tio v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 185; 197 ALR 117; 73 ALD 351

DECISION AND REASONS FOR DECISION [2006] AATA 709

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2005/721
GENERAL ADMINISTRATIVE DIVISION     )

Re YEE MAN THOMAS LAW

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
V2005/1154

Re KIT LING RITA CHIU

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
V2005/1155

Re SHEK YIN TIMOTHY LAW

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
V2005/1156

Re LAI YIN TREVOR LAW

Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  18 August 2006
Place:  Melbourne

Decision:The Tribunal decided on the preliminary issues raised by the application that:
(1)the respondent gave notices to each of the applicants of her proposal to cancel their business visas as required by s 135 of the Migration Act 1958;
(2)the notices were given outside Australia; and
(3)the notices properly specified a 70 day period as the period within which the applicants might make representations to the respondent concerning the proposed cancellation.
S A FORGIE
Deputy President

REASONS FOR DECISION

Together with their two young sons, Mr Yee Man Thomas Law and his wife, Mrs Kit Ling Rita Chiu, were granted business visas to enable them to travel to Australia. Mrs Chiu and her sons had been included in Mr Law’s application for a business visa. When almost three years had passed, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (Minister) decided that there were grounds to cancel their visas. First, she had to give them written Notice of Intention to Cancel the business visa (NOICC) and to invite them to make representations to the Minister regarding the proposal. Under s 135(b) of the Migration Act 1958 (Act), the NOICC had to give them 28 days within which to make the response if the NOICC was given in Australia and 70 days if it was given outside. The NOICCs were sent to an e-mail address with a country designation outside Australia. I have decided that the NOICC sent to such an e-mail address is given outside Australia, rather than in Australia, and must give the recipient 70 days within which to respond. I have also decided that r 2.55 of the Migration Regulations (Regulations) governs the giving of the NOICC to the visa holders rather than ss 494A or 494B of the Act. The NOICCs were properly given to Mrs Chiu and her sons by means of the e-mail address given on their joint application with Mr Law.

BACKGROUND

On 2 April 2001, Mr Law applied for a subclass 128 business skills visa (business visa). When the application form asked for his address for correspondence, he left the box blank. This indicated that correspondence should be sent to his residential address as he was only required to specify that address if different from his residential address.[1] The residential address he specified in the application form was an address in Hong Kong.[2] He also specified his e-mail address.[3] Both Mr Law and Mrs Chiu signed the application.[4]
[1] T documents at 49
[2] T documents at 49
[3] T documents at 49
[4] T documents at 59

Mr Law, Mrs Chiu, and their children, Shek Yin Timothy Law and Lai Yin Trevor Law, were given business visas. The family arrived in Australia on their business visas on 10 February 2002. On 20 January 2004, the Department of Immigration and Multicultural Affairs (DIMA) sent Mr Law a document described as a “Survey of Business Skills Migrant – 24 Months (Form 1010)” (Survey).[5] He had agreed to complete such surveys for three years after his initial arrival in Australia. Mr Law returned the Survey with supporting documents to DIMA on 18 March 2004.[6] In it, he gave the same e-mail as before. When asked for a residential address in Australia, he wrote next to the question “(contact address)” and then gave an address in Australia (Australian address).[7]
[5] T documents at 72-75
[6] T documents at 76-85
[7] T documents at 76

On 4 February 2005, a delegate of the Minister wrote to Mr Law advising of her intention to cancel his business visa. [8] She addressed it to the e-mail address he had given in his application and in the Survey. That address had the country designation “hk”. In addition, the delegate copied the letter to his Australian address and advised that she considered that there were grounds for cancelling it under s 134(1) of the Act. From the information supplied in Mr Law’s Survey, the Minister’s delegate advised that she was not then satisfied that he had obtained a substantial ownership interest in an eligible business in Australia or that he was involved in the day-to-day management of the company at a senior level. Furthermore, the delegate was not satisfied that Mr Law had made genuine efforts to engage in business and to meet visa requirements. In view of her conclusions, the delegate sent Mr Law and the secondary visa holders an NOICC. She sent the NOICC to Mr Law at his e-mail address and to his Australian address. The delegate gave him until 15 April 2005 to reply to the NOICC and advised him that the Act did not permit her to extend the time.[9]
[8] T documents at 151-155
[9] T documents at 151-155

The delegate also wrote to Mrs Chiu on 4 February 2005. She addressed it to the e-mail address shown in Mr Law’s application and the Survey as his e-mail address and copied it to the Australian address. The delegate told Mrs Chiu that there might be grounds for cancelling her business visa and those held by her sons.[10] After referring to the notice sent to Mr Law on the same day, the delegate told Mrs Chiu that her visas and those of her sons must be cancelled unless they would suffer extreme hardship as a result of that cancellation. She invited Mrs Chiu to give her reasons before 15 April 2005 as to why the visas should not be cancelled. Again, the delegate advised that she could not extend the time as it had been set by legislation.
[10] T documents at 149-151

On 13 April 2005, Mr Law’s migration agent made a submission on his behalf in response to the NOICC.[11] No submission was made on behalf of Mrs Chiu or her sons. A delegate decided on 12 July 2005 to cancel his business visa.[12] On the same day, the delegate also cancelled Mrs Chiu’s business visa and those of her sons.[13] In advising both Mr Law and Mrs Chiu and her family, the delegate wrote to their migration agent.
[11] T documents at 156-170
[12] T documents at 9-15
[13] T documents at 171-175

LEGISLATIVE BACKGROUND

Under s 134(1) of the Act, the Minister may cancel a business visa if satisfied of certain matters. The Minister may do so “by written notice given to its holder” but, in accordance with s 134(9):
“… must not cancel a business visa under subsection (1) … 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.”[14]
[14] s 134(9)

Section 135 is concerned with the Minister’s giving the holder of a visa written notice before cancelling a business visa. Sub-section 135(1) is concerned with the contents of the notice and its being given:
“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.”

The holder of the visa may make representations to the Minister in the time specified in the notice[15] and the Minister must give due consideration to them.[16]

[15] s 135(2)

[16] s 135(3)

Section 135(4) effectively limits the Minister’s ability to cancel a business visa should the Minister be minded to make that decision at all. It provides:
“If:
(a)the time specified in the notice ends after the end of the period referred to in subsection 134(9);^[[17]] 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.”
[17] i.e. the three year period calculated in accordance with s 134(9); see [7] above.

The Act has various provisions relating to the way in which the Minister may give a document to a person. Section 494B(1) of the Act provides that:
“For the purposes of the provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient); and
(b)state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.”

The methods that are specified in the sub-sections following s 494B(1) are:

“… the Minister (including by way of an authorised officer) handing the document to the recipient.”[18]
[18] s 494B(2)
“… the Minister (including by way of an authorised officer handing the document to another person who:
(a)is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c)appears to be at least 16 years of age.”[19]
[19] s 494B(3)

“… the Minister dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i)the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii)the last residential or business address provided to the Minister by the recipient for the purposes of receiving the documents.”[20]

“… the Minister transmitting the document by:
(a)fax; or
(b)e-mail; or
(c)other electronic means;
to the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.”[21]

[20] s 494B(4)

[21] s 494B(5)

Section 494A provides for the Minister’s giving documents where there is no requirement to do so by a method specified in s 494B:
“If:
(a)a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b)the provision does not state that the document must be given:
(i)by one of the methods specified in section 494B; or
(ii)by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).”

Section 494C sets out when a person is taken to have received a document when “… the Minister gives a document to a person by one of the methods specified in section 494B (including a case covered by section 494A).” I will set out its effect in tabular form with references to all of the sections:

Mode of giving	Section 494B reference	When document taken to have been received	Section 494C reference
Handing document to a person.	s 494B(2)	When it is handed to that person.	s 494C (2)
Handing document to a person who appears to be at least 16 years of age and who appears to live, or work, at the last residential or business address provided by the person to whom the Act or Regulations require the document to be given.	s 494B(3)	When it is handed to a person at that address.	s 494C(3)
Dating the document and dispatching it within 3 working days by pre-paid means to the last address for service or last residential or business address provided by the person.	s 494B(4)	If “(a)… dispatched from an address in Australia to a place in Australia – 7 working days (in the place of that address) after the date of the document. (b) in any other case – 21 days.”	s 494C(4)
Transmitting the document to a person by fax, e-mail or other electronic means.	s 494B(5)	At the end of the day on which the document is transmitted.	s 494C(5)

Section 504(1)(e) provides that the Governor-General may make regulations not inconsistent with the Act:
“making provision for and in relation to:
(i)the giving of documents to;
(ii)the lodging of documents with; or
(iii)the service of documents on;
the Minister, the Secretary or any other person or body, for the purposes of this Act;”.

This provision must be read with s 504(3) of the Act:

“The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the regulations to have been received by the person at a specified or ascertainable time.”

In so far as it is relevant in this case, r 2.55 provides that:
“(1)   This regulation applies to:
(a)the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act;
(b)…
(c)…
(2)…
(3)For a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a)…
(b)…
(c)by dating it, and then despatching it:
(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 person’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 last fax number, e-mail address or other electronic address known to the Minister.
(4)…
(5)…
(6)…
(7)If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or
(b)in any other case – 21 days after the date of the document.
(8)If the Minister gives a document to a person by transmitting it by fax, e‑mail or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.”

CONSIDERATION

What is meant by the word “given” in s 135(1)?

There is no question that the letters dated 4 February 2005 sent by the Minister’s delegate to Mr Law complied with s 135(1)(a) in that they stated that the delegate, and so the Minister,[22] proposed to cancel the business visa. There is, however, a question arising from s 135(1)(b). The NOICC specified 15 April 2005 as the date by which Mr Law should respond to it. That was a date that was 70 days from the date on the NOICC.
[22] s 34AB(c) Acts Interpretation Act 1901

A 70 day time period was appropriate if the notice was “given outside Australia” in accordance with s 135(1)(b)(ii) of the Act but it was calculated from the date on which the “notice is given”. If the notice was “given inside Australia”, it should have specified a date that was 28 days after the “notice is given”. That accords with s 135(1)(b)(i). It follows that the first thing I must determine is where the NOICC was given.

In determining that issue, Mr Hughan submitted, it is critical to look to the place from which the NOICC was sent or dispatched rather than the place at which it is expected to be received or actually received. The words “notice is given” appearing in s 135(1)(b)(i) and (ii) are to be contrasted with the provisions of ss 494B and 494C. Section 494B refers to the Minister’s giving a document and s 494C to the time at which a person is taken to have received that document. The time at which a person receives a document does not affect the time at which the document was given, Mr Hughan continued. Similarly, the time at which a person receives a notice does not affect the place at which the notice was given. Consequently, the NOICC to Mr Law dated 4 February 2005 was given in Australia, or more particularly the Perth Business Centre, as that was the place from which it was sent or dispatched. As the notice was given in Australia, it should have specified a period of 28 days and not of 70 days.

As an example of a notice given at the time it was dispatched, Mr Hughan referred to the Local Government Act 1919 (NSW) (LGA) considered by the High Court in Sydney City Council v Garbett Pty Ltd.[23] The High Court considered whether a proviso to s 139(2) of the LGA preserved the validity of notices served outside the years for which the rates were made. That proviso was that:
“… the liability of any person for rates shall not be affected by reason only of the fact that notice had not been given to such person with the year for which the rate is made.”

It was common ground that a rate was levied when it was served on the ratepayer. Service could be effected personally, by delivery to a residential or business address and leaving it with a person apparently above the age of 14 years, by pre-paid postage or by affixing notice of the rate on any conspicuous part of the land, building or premises.[24] Section 631 provided that:

“Any reference in this Division to the service of a notice shall include a reference to the giving or sending of a notice or to any similar expression in relation thereto.”

[23] (1995) 69 ALJR 616; 130 ALR 41

[24] Local Government Act 1919 (NSW), s 628(2)

The respondent submitted that the proviso in s 139(2) was directed to those cases in which notice of the rate was deemed to have been served rather than in fact served on the ratepayer. Of this proposition, the High Court said:
“ This argument stands or falls on the proposition that the legislature in using the expression ‘given to such person’ was drawing a distinction between notifying a ratepayer and serving a ratepayer. But the history of the proviso and the terms of s 631 show that no distinction was intended between the term ‘given to’ and the terms ‘levied’ and ‘served’ in s 139(2). …
…
… nothing in the words in the proviso to s 139(2) gave any support to the argument that the proviso was distinguishing between service ‘in fact’ and the deemed forms of service authorised by s 628. Whether or not the ratepayer had received the rate notice personally or ‘in fact’ did not affect that person’s liability to pay the rate. It is impossible to find any ground in the proviso or in the rest of s 139 for concluding that the proviso cut down the liability which s 143 imposed once service was effected in accordance with s 628. On the contrary, the whole purpose of the proviso was to preserve the liability of a ratepayer. It specifically preserved liability when the notice was served outside the year in which it was made. …
Moreover, the suggested distinction between ‘service in fact’ and other forms of service would create practical difficulties in the operation of the legislation. A council could never be sure, without resort to litigation, whether a notice served in accordance with s 628(2)(b), (c) or (d) had ‘in fact’ been served. Consequently, it would not know whether or when a ratepayer became liable for the rate or from what day interest would commence to accrue. One of the purposes of s 628 was to overcome these sorts of difficulties.”[25]
[25] (1995) 69 ALJR 616; 130 ALR 41 at 619, 44, 45

The High Court reached its conclusion on the basis of the language of the legislation and of the scheme it created. The majority of the Federal Court adopted the same approach in Rokobatini v Minister for Immigration and Multicultural Affairs.[26] The Minister had signed a General Direction under s 499 of the Act addressed to any person or body having functions or powers in relation to the deportation of a non-citizen under s 200. The General Direction was expressed to take effect on and from the date of its being signed. Section 499(1) of the Act provides that:
“A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing.”[27]
[26] (1999) 30 AAR 74; 57 ALD 257
[27] (1999) 30 AAR 74; 57 ALD 257 at 76, 259; [6]

The majority, Whitlam and Gyles JJ, looked at the practical considerations behind the power to give general directions. They noted the difficulties in communicating them to each and every person and that the directions were intended to be of “general” application while they remained “in force”. In that context, the word “given” did not mean “serve” or “send”. Rather, it meant “to issue” or “to give a command”.

In view of the approach in these authorities, I have looked first to the ordinary meaning of the word “given”. It is used in s 135(1)(b)(i) and (ii) as the past participle of the verb “give”. The ordinary meanings of “give” include:
“… 1 to transfer ownership of something; to transfer possession of something temporarily ⁭ gave him my watch ⁭ Give me your bags. 2 to provide or administer ⁭ give advice ⁭ give medicine. 3 to produce ⁭ Cows give milk. 4 to perform (an action, service, etc) ⁭ give a smile ⁭ She gave a lecture on beetles. 5 to pay ⁭ gave £20 for it. 6 intr to make a donation ⁭ Please give generously. …”[28]
[28] Chambers 21^st Century Dictionary, revised edition, 1999, reprinted 2004, Chambers

The past participle is “That part of the verb which is used in perfect and passive tenses and sometimes adjectivally.”[29] It “… signifies ‘perfectiveness’ or completion …”.[30] In ordinary usage of the words, it follows that a person often gives and another is given something, be it corporeal such as a bag or incorporeal such as spoken advice, at the same instance. The bag passes from one hand to another, and so possession is transferred, and the advice is spoken and heard, and so provided or conveyed, at virtually the same moment. But a bag may be handed to another who fails to grasp it so that it falls between them and advice given to another who fails to hear it because of deafness and an inability to lip read. Has the bag or the advice been given? Possession, let alone ownership, of the bag has not passed and the advice has not been provided or conveyed. The ordinary understanding of the situation would be that there was attempt to give the bag or the advice to another or that it was proffered. Ordinary understanding would not go so far as to say that the bag or the advice was given. There must be completion of the action of giving, either by receipt of the bag or advice, before either could be said to have been given.
[29] The Oxford Dictionary of English Grammar, 1994, Oxford University Press
[30] The Oxford Dictionary of English Grammar, 1994, Oxford University Press

Section 135(1)(b) does not refer to the NOICC’s “having been given”, as I have in my example, but to the date on which the NOICC “is given”. I do not consider that the difference in tense is a difference that leads to a different interpretation in the context of the provision. It must be read as part of the legislative scheme of which s 135(1)(b) is a part. I have set out the provisions above but, in summary, the steps are these:
the Minister must not cancel a business visa “… unless a notice under section 135 was given to its holder within the period of 3 years commencing …” on days determined according to the applicable paragraphs of s 134(9);
that notice, the NOICC, must specify certain time limits within which the holder of a business visa may make representations and those time limits are determined by whether the “notice is given”[31] inside or outside Australia;
the Minister must consider any representations within the specified time limit; and
the Minister must not cancel a business visa if the decision to do so would be made outside the period of 90 days commencing “at the time specified in the notice”[32] or if the time specified in the notice ends after the end of the period of three years calculated in accordance with s 134(9).
[31] s 135(1)(b)(i) and (ii)
[32] s 135(4)(b)
The tenor of the scheme is that the holder of the business visa must know about the NOICC in order to resist the threatened cancellation by making representations to the Minister. In order to know about the threat, the holder must receive notice of its existence and of its contents. In order to address the threat, the holder must be given enough time within which to prepare and transmit representations. All of this suggests that the words “give” and “given” should be understood according to their ordinary meanings. So, the Minister must provide, and so “give”, the holder of a business visa with a written notice in accordance with s 135(1) before cancelling it. Section 135(1) assumes that the act of giving will be completed so that the notice can be described as “given”. It requires consideration of whether the act of giving will be completed in Australia or outside Australia.

That this is the correct interpretation is supported by the provisions in the Act relating to the giving of documents and receipt of documents. Whether ss 494A or 494B or r 2.55 is the appropriate provision regulating the giving of an NOICC is of no matter for the moment. Each provides for the giving of a document, whether the giving is required or permitted under the Act but, either alone or, in case of ss 494A and 494B, in conjunction with s 494C, provides for the time at which the document that is given is taken to have been received. The deeming of receipt suggests that the action of giving a document has not been completed so that it can be described as having been given until it has been received.

What is a suggested in these provisions is expressed in s 137D. It is concerned with the notification of decisions to cancel, under s 137B, approval of a person as a business sponsor. It provides:
“(1) If the Minister decides to cancel under section 137B an approval of a person as a business sponsor, the Minister is to give the person written notice of the decision.
(2) Subject to subsection (3), the notice:
(a)is to be addressed to the person; and
(b)is to be given by the prescribed method, or, if there is no prescribed method, by a method that the Minister considers to be appropriate, to an address that, under section 137E, is an appropriate address for delivery of the notice.
(3)Subsection (2) does not prevent the Minister from giving notice of the decision to the person by a method or to an address not mentioned in that subsection provided that the person receives the notice.
(4)Notice of the decision must state the ground for the cancellation.
(5)Failure to give notice of the decision does not affect the validity of the decision.”

The proviso in s 137D(3) clearly indicates that receipt of notice of the decision is essential before it can be said to have been given. The proviso is that the Minister is not prevented from “giving” notice of the decision by a method not referred to in s 137D(2) if the person receives the notice. Certainly, s 494C and r 2.55 provide for deemed receipt but the effect is the same. Each of the provisions contemplates that a document is not given by one to another until it has been received or deemed to have been received as the Act permits.

A consideration of the practical consequences leads to the same conclusion. If it were the case that a notice “is given in Australia” if it is posted in Australia to an address outside Australia, the holder of the business visa would be given only 28 days within which to respond. That would be the effect of s 135(1)(b)(i). If it were sent from an address outside Australia to another address that is not only outside Australia but the two addresses are in the same country, the holder of the business visa would have 70 days within which to make representations. That would be the effect of s 135(1)(b)(ii) but it would not accord with the scheme of the legislative provisions. The scheme is clearly intended to give the holder a proper, albeit limited, opportunity to make representations to the Minister.

It follows that the reference in s 135(1) to when an NOICC “was given” to the holder of a business visa is a reference to the place in which the notice is received, or taken to have been received, in accordance with the Act. It is not a reference to the place in which the Minister sends it in some way whether under ss 434A or 434B or r 2.55 as is appropriate.

Did the Minister give Mr Law a NOICC complying with s 135?

The notice that the delegate sent to Mr Law by e-mail specified the country designation as “hk”. This has been taken as an address outside Australia. That means that the NOICC must comply with s 135(1)(b)(ii) and invite Mr Law to make representations 70 days after the notice was given. The answer to the question of when the notice is given is not affected by whether ss 494A and 494B (when read with s 494C) or r 2.55 applies. Each leads to the same result. When the Minister gives a document to a person by e-mail, the effect of s 494C(5) and r 2.55(8) is that the “person is taken to have received the document at the end of the day on which the document is transmitted.” The “day on which the document is transmitted” must be a reference to the day on which, in this case, it was transmitted in Australia. As it has not been challenged that the NOICC was sent by e-mail and, indeed, Mr Law states that he received it on 4 February 2005, I accept that it was transmitted to him by e‑mail on that day. He is taken to have received it at the end of 4 February 2005 as well as in fact having received it by then. As that is the date on which he would be taken to have received it, the calculation of the 70 day time period from that day is appropriate and the specification of 15 April 2005 as the time by which Mr Law had to make any representations was the correct date.[33]
[33] This approach was accepted, without question, by the Full Court of the Federal Court in considering a different question in Tio v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 185; 197 ALR 117; 73 ALD 351 (see, for example, Lindgren J at 186, 118, 352; [5] Downes J 195, 127, 361; [57] and in dissent Stone J 193, 125, 359; [43]) and see also Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 432 at [45] per Mr Webb, Member.

It follows that I find that the NOICC given to Mr Law complied with the provisions of s 135 of the Act.

Were the NOICCs properly given to the secondary applicants, Mrs Chiu and sons?

Mr Hughan submits that the secondary business visa holders, Mrs Chiu and her sons, were not given NOICCs as they were sent to Mr Law’s e-mail address and copied to his Australian address. It has not been established, he submitted, that they had, as required by s 494B of the Act, provided those addresses, or either of them, for the purposes of receiving documents. As they had not been given proper NOICCs, s 134(9) prevented the Minister from cancelling their business visas. Mr Wee submitted that s 135 does not prescribe the use of either s 494B or r 2.55 to give the NOICC to the secondary applicants. Regulation r 2.55 should be preferred as it specifically relates to the “proposed cancellation … of a visa” and that would include a business visa and, unlike s 494B, is not limited to circumstances in which it has been prescribed.

Mr Wee drew my attention to Tio v Minister for Immigration and Multicultural and Indigenous Affairs[34] as one of the cases in which the Federal Court has accepted the use of r 2.55 in relation to business visas. It appears from the judgment of Lindgren J that the parties had given the Court a statement of agreed facts. It appears from his judgment that the parties assumed that r 2.55 was the correct provision.[35] His Honour does not go on to question or consider whether it was appropriate and nor does Downes J, with whom he formed the majority. Stone J was in the minority but she did not address the question either.
[34] (2003) 126 FCR 185; 197 ALR 117; 73 ALD 351
[35] (2003) 126 FCR 185; 197 ALR 117; 73 ALD 351 at 186-187, 118, 352; [3]-[7]

Mr Wee referred to several Tribunal decisions which have either assumed that r 2.55 is applicable,[36] have not needed to decide the issue[37] or that have favoured r 2.55 to either ss 494A or 494B while not deciding the issue.[38] In Re Tanujaya and Minister for Immigration and Multicultural and Indigenous Affairs, Mr Murray Allen, Member, said:
“ In my reasons for decision in the matters of Re Bhyat and MIMIA [2003] AATA 1051 and Re Eng and MIMIA [2004] AATA 6 I observed that the interrelationship between Reg 2.55 and the sections of the Act referred to above is by no means clear and that I favoured an interpretation that the Minister is, in relation to notices of intention to cancel under ss 134 and 135, required to give such a notice in accordance with Reg 2.55. In neither of those cases was it necessary to reach a concluded view about the point. In Re Eng I considered that the notices of intention to cancel that had been given in that case did not comply with either Reg 2.55 or the provisions of s 494A or 494B.”[39]
[36] Re Teck Lim Heng and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 32 at [96]-[99]
[37] Re Chin Wook Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 432
[38] Re Tanujaya and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 386
[39] [2004] AATA 386 at [33]

It seems to me that r 2.55 regulates the giving of the NOICC and that ss 494A and 494B are not applicable. The provisions relating to business visas are found in Part 2 of the Act. Part 2 is entitled “Control of arrival and presence of non‑citizens”. A “non-citizen” is anybody who is not an Australian citizen.[40] Part 2 deals with matters under headings dealing with matters such as immigration status,[41] the power to obtain information and documents about unlawful non-citizens,[42] visas,[43] sponsorship,[44] detention of unlawful non-citizens,[45] examination, search and detention[46] and monitoring compliance with student visa conditions.[47] Section 116 in Subdivision D of Part 2 provides that the Minister may cancel a visa if satisfied of any one of a number of matters such as the circumstances permitting the grant of the visa no longer exist or the holder has not complied with a condition of the visa.[48]
[40] s 5(1)
[41] Division 1
[42] Division 2
[43] Division 3
[44] Division 3A
[45] Division 7
[46] Division 13
[47] Division 14A
[48] ss 116(1)(a) and (b)

The general power to cancel a visa under s 116, which is found in Subdivision D of Part 2, is not limited or affected by the power to cancel a business visa under s 134.[49] Subdivision E is concerned with procedures for cancelling visas whether the holder of the visas are inside or outside Australia but only if Subdivision F does not apply. It requires the Minister to give notice to the holder of a visa before deciding to cancel it using the general power of cancellation under s 116.[50] The holder of the visa must be notified in the prescribed way or, if there is no prescribed way, in a way that the Minister considers appropriate. That is the effect of s 119(2), which has long been part of the Act and was last amended in 1994.[51] Subdivision F is concerned with the procedure for cancelling visas under Subdivision D outside Australia. If the Minister is satisfied that there is a ground for cancelling a visa under s 116, the Minister may do so without notice.[52] Notice of the cancellation must be given in the prescribed way.[53] The word “prescribed means prescribed by the regulations”.[54]
[49] s 118(d)
[50] The provisions of Subdivision E do not apply to a cancellation under a provision other than s 116 or to a cancellation governed by Subdivision F: s 119(4).
[51] Migration Legislation Amendment Act 1994
[52] s 128
[53] s 129(2)
[54] s 5(1)

Section 494B was inserted in the Act in 2001.[55] There are specific references in the Act to it in relation to the Migration Agents Registration Authority[56] and to a range of other matters in the Regulations.[57] An example is s 306AF(2) which was inserted in 2004[58] and which provides:
“(1) The Minister must give the Migration Agents Registration Authority written notice of a decision under section 306AC to refer a registered migration agent to the Authority.
(2)The notice must be given to the Authority by one of the methods specified in section 494B. The notice must specify the grounds for the referral.”

Reference is also made in notes to sections[59] but these do not form part of the Act.[60]

[55] Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001

[56] ss 306AF(2), 306AGAB(2) and 311K(2)

[57] e.g. rr 1.20S, 1.20US, 2.16 and 2.20A

[58] Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004

[59] e.g. ss 52(3C) and there are also examples to be found in the Regulations

[60] Acts Interpretation Act 1901, s 13

Section 494B falls within the group of sections from ss 494A to 494D. For the purposes of Subdivisions E and F those sections are , “… taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.”[61] The Subdivisions are each “… taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”[62] These provisions were inserted in the Act in 2002 by the Migration Legislation (Procedural Fairness) Act 2002. Similar provisions appear elsewhere in the Act. That found in s 422B has been considered by several Federal Court authorities. It provides that Division 4 and certain provisions, including those in Division 7A, are taken to be an exhaustive statement of the requirements of the natural justice rule in relation to the matters they deal with. All are concerned with aspects of an application and its hearing in the Refugee Review Tribunal. The interpretation of s 422B has led to disagreement among differently constituted Federal Courts as to the extent of s 422B. They were summarised by Jacobson J in SZBZO v Minister for Immigration, Multicultural and Indigenous Affairs:[63]
“28.     Section 422B applies to applications to the Tribunal for review of a decision filed after 4 July 2002; see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 596 at [31]; see also SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 (‘SZBDF’) at [11]. It therefore applies to the present case.
29.      As Branson J pointed out in SZBDF at [12], there is a division of opinion within the Court as to the ambit of s 422B(1). One view is that the phrase “in relation to the matters it deals with” imports a limitation upon the extent to which Div 4 is to be read as a code and doe [sic] not, in effect, completely exclude common law rules of natural justice; see WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 (‘WAJR’ at [47] – [59] and Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 (“Moradian”) at [35] – [37].
30.      The other view is that s422B applies to a larger subject matter than the exact text of the requirements stated in Div 4; see NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 356 (‘NAQF’) at [50] – [87] and Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 (‘Wu’) at [21] – [23]; see also VXDC v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 146 FCR 562 (“VXDC”) at [30] – [31] per Heerey J.”
[61] ss 118A(2) and 127A(2)
[62] ss 118A(1) and 127A(1)
[63] [2006] FCA 494

I do not need to take that matter any further for I have referred to it and the other references to s 494B to show the part it plays in the Act. On its face, s 494B applies only when a provision of the Act or Regulations requires the Minister to give a document by one of the methods specified in s 494B if the document is to be given at all.[64] There are provisions of the Act that require or permit the Minister to give another a document but only by one of the methods specified in s 494B. Section 135 requires the Minister to give the visa holder an NOICC before cancelling a business visa. It makes no reference to s 494B and no other provision in Subdivision G of Division 3 of Part 2 relating to the cancellation of business visas makes any reference to it. Subdivision G does not have any provision to the effect that ss 494A to 494D are “… taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.” I have concluded, therefore, that s 494B has no relevance in determining the manner in which an NOICC is given.
[64] s 494B(1)(b)

Section 494A is more difficult to reconcile with the other provisions. Sections 494A(1)(a) and (b)(i) are satisfied as the Minister is required to give the NOICC but is not required by s 135 to do so by a method specified in s 494B. Equally, s 135 does not state that the NOICC must be given by a method prescribed for the purposes of giving documents to a person in immigration detention. Therefore, s 135(1)(b)(ii) is satisfied. This would mean that, on its face, it would enable the Minister to give the document to Mrs Chiu and her sons by any method considered by the Minister to be appropriate.

That, though, is not an end of the matter. Section 494A is a section having general application to the giving of a document. The regulation making power in ss 504(1)(e)(i), when read with s 504(3), is a specific provision of the Act relating to the giving of documents to “the Minister, the Secretary or any other person or body, for the purposes of this Act” (emphasis added). It contemplates that specific provisions will be made to regulate specific circumstances. That has been done in r 2.55 in relation to “the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act”.[65] Its provisions differ from those of s 494B in some respects.
[65] r 2.55(1)(a)

A similar conflict may arise between separate Acts and the principle used to resolve it and equally applicable to a conflict within an Act,[66] was stated by O’Connor J in Goodwin v Phillips:[67]
“Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.”[68]
[66] Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 at 29
[67] (1908) 7 CLR 1
[68] (1908) 7 CLR 1 at 14

Applying this principle in this case, it seems to me that r 2.55 must be taken as governing the methods by which an NOICC must be given to a visa holder. This would mean that it is sufficient for the Minister, or her delegate, to have transmitted the NOICC to the last e-mail address of Mrs Chiu known to the Minister. I have considered whether Mrs Chiu did not advise the Minister of her e-mail address although there is no question that her husband did advise of his. Mr Law did that in his application. In Ball v Minister for Immigration and Multicultural and Indigenous Affairs,[69] Ryan J said of the provisions in r 2.55(3)(c) relating to postage to a person’s last residential address last known to the Minister:
“… the concept of a last known address in reg 2.55(3)(c) does not depend on the minister’s knowledge coming from a particular source. Nor does it require that the minister’s knowledge be verified in a particular way. It is sufficient that the means of knowledge relied on by the minister be reasonable in the circumstances. …”[70]
[69] (2003) 199 ALR 374; 75 ALD 199
[70] (2003) 199 ALR 374; 75 ALD 199 at 385, 210

The same principles would apply to the last e-mail address known to the Minister in r 2.55(3)(d). That regulation does not state that it is the person’s e‑mail address or that it has been provided by the person. In this regard, it is to be contrasted with s 494B(5) which provides that transmission is to the last e-mail address provided to the Minister by the recipient for the purposes of receiving documents. Despite the omission of these requirements in r 2.55(3)(d), it seems to me that the undoubted intention of r 2.55 is to ensure that the visa holder has a proper opportunity to be notified of the Minister’s intention to cancel a visa, or to revoke a cancellation of a visa. It must be inherent in r 2.55(3)(d) that the e-mail address be an address that has a connection of some nature with the person to whom the document is to be given. The regulation cannot be read as permitting the Minister to transmit a document to an e-mail address that has no connection at all with the visa holder and that would have no reasonable likelihood of ever reaching the visa holder.

In this case, Mrs Chiu signed a declaration as part of the application made by Mr Law. Mr Law signed as the “main applicant” and Mrs Chiu signed as an “accompanying person over 18”.[71] Her sons did not sign the application but they were under the age of 18 years at the time. Mrs Chiu’s declaration included a statement that the information she had supplied in the application was complete, correct and up-to-date in every detail. She would inform the Department of Immigration and Multicultural Affairs (Department) of any changes to her personal circumstances (including change of address) while her application was being considered. The completed application form did not include a residential address for Mrs Chiu that was different from her husband’s. It is to be taken as the same as her husband’s given the form of the question in the application. There is no similar question regarding her e-mail address. Mrs Chiu was not asked for an e-mail address although her husband was asked for it. Mr Law did not advise the Minister or his Department of any changes to his e-mail address in his subsequent correspondence.
[71] T documents at 59

Before its repeal in 2002,[72] Items 128.225 to 128.311, which related to a subclass 128 visa, permitted an application to be made by a member of an applicant’s family unit at the same time and place as the applicant and as a combined application with the applicant. In view of that and in the absence of Mrs Chiu’s giving any separate information relating to her, including a separate e-mail address, on the application form or subsequently, it seems to me that the e-mail address on the application form can be regarded as the last e-mail address known to the Minister within the meaning of r 2.55(3)(d) in relation to her and her sons. That would mean that the Minister sent the NOICC to Mrs Chiu properly and also to her sons as her dependants. They were given the appropriate 70 day period in which to respond.
[72] Migration Amendment Regulations 2002

For the reasons I have given, I have decided on the preliminary issues raised by the application that:
(1)the respondent gave notices to each of the applicants of her proposal to cancel their business visas as required by s 135 of the Migration Act 1958;
(2)the notices were given outside Australia; and
(3)the notices properly specified a 70 day period as the period within which the applicants might make representations to the respondent concerning the proposed cancellation.

I certify that the forty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: ...............................................................

Jayne Rathjen Associate

Date of Jurisdiction Hearing         13 April 2006
Date of Decision  18 August 2006
Solicitor for the Applicant            Mr E. Rodan
  Erskine Rodan & Associates
Solicitor for the Respondent         Mr B. Wee
  Australian Government Solicitor

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Citations

Law and Ors and Minister for Immigration and Multicultural Affairs [2006] AATA 709

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Kaur and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 432

Tio v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 53