Lin and Minister for Immigration and Citizenship
[2009] AATA 938
•7 December 2009
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/0521
General Administrative Division )
Re: Xiaoyi Lin
Applicant
And: Minister for Immigration and Citizenship
Respondent
DECISION (CORRIGENDUM) [2009] AATA 938
TribunalMr R P Handley, Deputy President
Date9 December 2009
PlaceSydney
WHEREAS:
The Tribunal published its Decision in this matter on 7 December 2009.
The Tribunal wishes to amend the Decision to rectify an error.
Now the Tribunal therefore orders that the Decision of the Tribunal should be amended to reflect the following amendment to Paragraph 15 of the decision:
Mr Orford referred to the Explanatory Memorandum for the Migration Amendment Bill (No 2) 1992 which introduced what is now s 135 into the Act. In referring to the notice requirement, no distinction is drawn between primary and secondary visa holders.
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Mr R P Handley
Deputy President
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 938
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2009/0521
GENERAL ADMINISTRATIVE DIVISION )
ReXiaoyi LIN
Applicant
And Minister for Immigration and Citizenship
Respondent
DECISION
TribunalMr RP Handley, Deputy President
Date7 December 2009
PlaceSydney
DecisionThe decision under review is affirmed.
....................[sgd]........................
Mr RP Handley
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – Business skills visa – family unit visa – whether the notice of intention to cancel visa is valid – whether cancellation of a primary visa holder’s visa is a condition precedent to issuing notice to cancel a secondary visa – whether the delegate had complied with s 135 – whether the notice must assert that the Minister or delegate proposes to cancel the visa – notice not required to use exactly the same words as long as intention is clear – whether the notice sought to restrict representations to those made in writing – decision under review affirmed
WORDS AND PHRASES – “proposes”, “proposed cancellation”, “intention”
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RELEVANT ACT
Migration Act 1958: ss 134, 135
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CITATIONS
Wei Zhong v Minister for Immigration and Citizenship [2008] FCA 507
Adams and Minister for Immigration and Citizenship [2007] AATA 1180
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OTHER AUTHORITIES
Migration Regulations 1994: regs 2.55
Migration Amendment Bill (No 2) 1992 (Cth) Explanatory Memorandum
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REASONS FOR DECISION
| 7 December 2009 | Mr RP Handley, Deputy President |
Mr Xiaoyi LIN has applied to the Tribunal for the review of a decision to cancel his business visa. The issue for the Tribunal is whether the Minister gave Mr Lin a valid written notice of his intention to cancel Mr Lin’s visa.
Background
Mr Xiaoyi Lin, who was born in 1986, is the son of Mr Jing Lin, a Chinese citizen who, on 21 October 2005, was granted a Business Skills (Subclass 132) visa. As a consequence of this, Mr Jing Lin’s wife and Mr Xiaoyi Lin, being members of Mr Jing Lin’s family unit, were also granted business visas.
On 1 October 2008, the Department of Immigration and Citizenship (the Department) sent Mr Xiaoyi Lin a notice of its intention to cancel his visa to the address for Mr Xiaoyi Lin provided by his father in a ‘Survey of business skills visa holders’, which was signed by Mr Jing Lin on 10 March 2008 and by Mr Xiaoyi Lin on 11 March 2008. The notice invited Mr Xiaoyi Lin to make representations to the Minister concerning the proposed cancellation of his visa. Mr Xiaoyi Lin states that he did not receive the notice, and the letter enclosing this was returned to sender.
On 5 January 2009, a delegate of the Minister cancelled both Mr Jing Lin’s and Mr Xiaoyi Lin’s visas. On 6 February 2009, Mr Xiaoyi Lin applied to the Tribunal for a review of the decision to cancel his visa.
The Legislative Framework
The relevant provisions of the Migration Act 1958 (the Act) are as follows:
134.Cancellation of business visas
(1)Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment‑linked visa or a family member's visa), by written notice given to its holder, if the Minister is satisfied that its 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; or
(c) does not intend to continue to:
(i)hold a substantial ownership interest in; and
(ii)utilise his or her skills in actively participating at a senior level in the day‑to‑day management of;
an eligible business in Australia.
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(4)Subject to subsection (5) and to section 135, if:
(a) the Minister cancels a person's business visa under subsection (1) or (3A); and
(b) a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c) the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person's business permit or business visa by giving written notice to that person.
(5)The Minister must not cancel the other person's business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
…
(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.
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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.
The requirements for the giving of documents to the holder of a visa relating to a proposed cancellation or cancellation of a visa are set out in the Migration Regulations 1994. Regulation 2.55(3) states the Minister must give the document in one of the following ways:
(a)by handing it to the person personally;
(b)by handing it to another person who:
(i)is at the person's last residential or business address known to the Minister; and
(ii)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii)appears to be at least 16 years of age;
(c)by dating it, and then dispatching 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.
Regulation 2.55(7) states:
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.
At the hearing, Mr Dobbie, for Mr Xiaoyi Lin, said the Applicant no longer disputes the giving of the notice and accepts it was sent to the last address known to the Minister. Mr Dobbie said the Applicant is also no longer pressing his claim that cancellation of his visa would result in extreme hardship.
The validity of the Notice
The Applicant cites three grounds for his contention that the Minister did not give Mr Xiaoyi Lin a valid notice of his intention to cancel Mr Lin’s visa as required by s 135(1) of the Act.
Was cancellation of the primary visa holder’s visa a pre-condition?
The first ground on which the validity of the notice is challenged is that the cancellation of the visa held by the primary visa holder, Mr Lin’s father, was a condition precedent to the valid exercise of the delegate’s power to issue such a notice to secondary visa holder, Mr Xiaoyi Lin. This had not yet occurred and thus the notice was invalid. Mr Dobbie stated that the wording of the notice created the impression that a decision to cancel Mr Lin’s father’s visa had already been made.
Mr Dobbie noted that pursuant to s 135(1)(b), the sending of notices of intention to cancel to both the primary and secondary visa holder’s visas at the same time, could lead to the anomaly that if the primary visa holder is outside Australia and the secondary visa holder is onshore, the secondary visa holder’s representations must be received within 28 days after the notice is given while the primary visa holder’s representations need only be received within 70 days after the notice is given. Mr Dobbie said this does not make sense, especially in terms of the secondary visa holder making representations about the hardship that would result from cancellation of his or her visa.
Mr Dobbie referred to the decision in Wei Zhong v Minister for Immigration and Citizenship [2008] FCA 507 (Zhong) (further discussed below) which, he submitted, requires in Mr Lin’s case that the Minister must already have made a decision to cancel the primary visa holder’s visa.
The Minister rejects this argument contending that as it is a legislative necessity that the secondary visa holder’s visa is cancelled when the primary visa holder’s visa is cancelled, it is appropriate for the secondary visa holder to be given an opportunity to make representations prior to the cancellation of the primary visa holder’s visa.
The wording of s 135(1) requires the giving of notice to the holder of the visa before the cancellation of that person’s visa. With reference to secondary visa holders, the subsection does not stipulate that another person’s visa must first have been cancelled. Mr Orford, for the Minister, submitted that the language of s 135(1) does not require a state of mind, as in Zhong. The subsection is drafted in such a way that the notice requirement applies in respect of both primary and secondary visa holders.
Mr Orford referred to the Explanatory Memorandum for the Migration Amendment Bill (No 2) 1992 which introduced what is now s 135 into the Act. In referring to the notice requirement, a distinction is drawn between primary and secondary visa holders.
Mr Orford also noted that practical difficulties might follow in the case of children who are secondary visa holders if a parent’s primary visa is cancelled first. The giving of notice to both primary and secondary visa holders at the same time avoids such problems.
In my view, the decision in Zhong is distinguishable on the facts since it was concerned with non-compliance and the relevant section of the Act in that case required the Minister to have first decided that the holder of the visa had not complied with specific provisions of the Act before giving the holder of the visa a notice. While s 134(4) is subject to s 134(5) and to s 135, s 134(4) is purely about cancelling visas by giving written notice of cancellation to the visa holders, and does not itself deal with the grounds for cancellation. There is no requirement in the subsection for the Minister to have attained a particular state of mind.
Thus, I do not accept that the cancellation of the primary visa holder’s visa is a pre-condition or condition precedent to the issuing of a notice to the secondary visa holder under s 135. In my view, the timing of the notice in Mr Xiaoyi Lin’s case was not inappropriate and had no effect on the validity of the notice.
Did the notice comply with s 135(1)(a)?
The second ground on which the Applicant contends the notice was invalid is that it did not comply with s 135(1)(a) in so far as it did not state the Minister was proposing to cancel the visa. Mr Dobbie submitted that s 135(1)(a) requires the notice to state that “the Minister proposes to cancel the visa”.
Mr Orford said while the notice does not use the word “proposes”, the language used in the notice is sufficiently clear to appropriately reflect the language used in s 135(1)(a). He referred to the Macquarie Dictionary definition of “propose” which includes “to put forward (a matter, subject, case etc) for consideration”, and “to intend”. The wording of the notice, which bears the heading “NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR VISA”, states that “there may be grounds to consider cancellation of your visa” and invites Mr Lin to make representations.
Having examined the notice dated 1 October 2008 sent to Mr Xiaoyi Lin, I am satisfied that it explains sufficiently clearly why he is being invited to make representations – and, indeed, refers in lines 3 - 4 to “your opportunity to make representations about the proposed cancellation”. Later in the notice, it refers to giving Mr Xiaoyi Lin an “opportunity to comment” and refers specifically to making representations about “why you think the cancellation of any visas held by you … would result in extreme hardship”. In my view, the notice adequately addressed the wording of s 135(1)(a). The notice is not required to use exactly the same words used in the subsection as long as the intention is clear.
Did the notice invalidly restrict the form that representations might take?
The third ground on which the Applicant contends the notice was invalid is that it sought to restrict representations to those made in writing when there is no such restriction imposed by s 135(1)(b). The notice stated “You are invited to make representations to the Minister in writing to Locked Bag 7, Northbridge WA 6865”. Mr Dobbie acknowledged that this argument was rejected by Deputy President Walker in Adams and Minister for Immigration and Citizenship [2007] AATA 1180 (Adams), but submitted that the Deputy President’s reasoning in Adams should be rejected. The notice in the current matter restricts representations to those made in writing and sent to the Locked Bag. This would mean that if a visa holder only receives the notice on the 28th day after the giving of notice, he or she would be unable to make representations to the Minister, which would be contrary to the language of s 135(1)(b).
Mr Orford submitted that DP Walker’s decision in Adams is correct and should be followed. The notice makes clear that the person can contact the Department in a number of ways. Mr Orford also referred to the relevant departmental policy (included in the T Documents), which states that if a response to such a notice is received before the decision is made, “even though outside the ‘allowed period’, it must be taken into consideration”.
In Adams, at [18], DP Walker rejected a similar argument put by Mr Dobbie, noting that the contact details and address of the delegate were stated on the notice, which also referred to further information about the process on the Department’s web page and stated that further information could be obtained by contacting the Department by email, telephone or fax. I agree with DP Walker’s comment, at [19]:
While in retrospect the notice might have been worded more clearly, it did not impose a condition but merely indicated an address which the applicant could be confident would ensure that his representations would reliably reach the minister’s delegate.
In the current matter, at the bottom of page 1 of the notice, the street address of the relevant section of the Department is stated alongside the same Locked Bag number to which the person is invited to make representations (on page 2), together with an email address for the section, a website, telephone number and fax number. The final paragraph of the letter on page 2, which is headed “Further Information”, states that if the person “would like further information about the Business Skills monitoring process, please examine our webpage” (webpage address provided) or “Alternatively, you may contact us via E-mail … by telephone … or by fax …”.
In my view, the “invitation” is not prescribing the form that the response should take but requesting that representations should be in writing to the Locked Bag – presumably for the sake of convenience and so that the representations are made in a tangible form. The provision of other means of contact on the notice, including the street address, email address, telephone and fax number alongside the same Locked Bag number is sufficient to facilitate other means of communicating the person’s representations.
My having rejected the Applicant’s three grounds for challenging the validity of the notice, the Applicant’s contention that no valid notice was given within the three‑year period prescribed by s 134(9) must also be rejected.
Thus, the decision under review is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Signed: .................[sgd]..........................................................
A Veness, Associate
Date of Hearing: 20 November 2009
Date of Decision: 7 December 2009Applicant representative: Mr N Dobbie, Visa Immigration Specialists Australia Pty Limited
Respondent representative: Mr A Orford, Clayton Utz
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