Prawiro and Minister for Immigration and Multicultural and Indige Nous Affairs
[2003] AATA 1096
•30 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1096
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W2002/195,
) W2002/221 &
)W2002/222
GENERAL ADMINISTRATIVE DIVISION ) Re HANDOYO PRAWIRO
CHRISTY PRAWIRO
RATIKA PRAWIROApplicants
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr M Allen, Member Date30 October 2003
PlacePerth
Decision The decisions made on 23 April 2002 to cancel the business visas held by the applicants are affirmed.
............(sgd M Allen)....................
Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP - cancellation of business visas – whether notice of intention to cancel was invalid because it specified a period of more than 28 days for the making of representations – consideration of effect of non-compliance with ss135(1) - whether visa held by daughter of primary visa holder should be cancelled – whether daughter would face extreme hardship if visa cancelled
Migration Act 1958 ss 134, 135
Migration Regulations 1994 reg 2.55
Re Andiwadjaja and Minister for Immigration and Multicultural and Indigenous Afffairs [2003] AATA 397
Tio v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 53
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 153 ALR 490
NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; 193 ALR 449
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AAT 961
REASONS FOR DECISION
30 October 2003 Mr M Allen, Member 1. These are three applications made respectively by Mr Handoyo Prawiro and his two daughters, Ms Christy Prawiro and Ms Ratika Prawiro. All three applications seek review of decisions made by a delegate of the Minister on 23 April 2002 to cancel the Business Skills (Migrant) (Class AD) (Subclass 127) Visa (“the visa”) held by Mr Prawiro and the secondary visas held by Christy and Ratika. A secondary visa granted to Mr Prawiro’s wife, Ms Anny Hardjono, was also cancelled on that day but no application has been made for review of that decision. At the hearing I was informed that the application made by Christy would not be pursued.
2. At the hearing the Tribunal received into evidence the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act, 1995 (T1 – T42 and S1 – S19). Two documents tendered by the applicants (R1 and R2) were also received in evidence. Oral evidence was given by Mr Prawiro and Ratika.
Background
3. The following background information was not in contention and the following findings of fact can be made.
4. Following the granting of the visas Mr Prawiro first arrived in Australia on 18 January 1999.
5. By letters dated 11 December 2001 a delegate wrote to all the visa holders giving notice of intention to cancel the visas under s134 of the Migration Act, 1958 (“the Act”) and inviting each visa holder to make representations concerning cancellation by 23 January 2002.
6. On 23 April 2002 a delegate cancelled all the visas and notified the visa holders accordingly by letters of that date, with which were enclosed a statement of the reasons for the decisions (T5,6,12,13,19 and 20).
7. The grounds upon which the visas were cancelled was that Mr Prawiro had failed to obtain a substantial ownership interest in an eligible business in Australia, or had not utilised his skills in actively participating at a senior level in the day to day management of such a business.
8. At the hearing Mr Prawiro informed me that he did not wish to contest the cancellation on the grounds referred to in the preceding paragraph, but that he did wish to contend that the cancellation was not legally effective because of a failure by the Minister’s delegate to comply with various time requirements in ss 134 and 135 of the Act. Accordingly, the issues for determination by the Tribunal in these proceedings are:
(a)whether the time requirements in ss134 and 135 were complied with and whether any non-compliance results in the purported cancellation of the visas being legally ineffective?; and
(b)if any non-compliance with statutory time limits was not such as to render the cancellation ineffective, then the second issue to consider is whether Ratika’s visa should not be cancelled on the grounds that to do so would result in her suffering extreme hardship?
The Legislation
9. So far as is relevant, ss134 and 135 of the Act provide as follows:
“Section 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.
…
(4) Subject to subsection (5) and to section 135, if:
(a) the Minister cancels a person's business visa under subsection (1) …; 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 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), … 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.
(10) ...
Section 135 – Representations concerning cancellation of business visa
(1) Before cancelling a visa under subsection 134(1), … 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) …t.”
10. Also relevant to the matter is reg 2.55(7) of the Migration Regulations 1994 which provides, relevantly, that if the Minister gives a document to a person by dispatching it by prepaid post then the person is taken to have received it seven working days after the date of the document.
Contentions
11. At the hearing I invited both parties to make written submissions regarding the issues of compliance raised by Mr Prawiro. As I understand his written submissions Mr Prawiro contended that the response period of 28 days specified in s135(1)(b)(i) should apply – rather than the actual date nominated for response in the notice of intention to cancel. In other words, the 90-day period referred to in s135(4)(b) should start at the expiry of 28 days after he was taken to be given the s135(1) notice rather than at the expiry of the actual period nominated for response in the notice. On this basis he should be taken to have been given the s135(1) notice on 18 January 2002 and the 90-day period should have expired on 18 April 2002 – and because the cancellation decisions were made on 23 April 2002 they were made after the time permitted by s135(4).
12. It was contended on behalf of the respondent that the giving of a period longer than 28 days for making representations does not invalidate the notice of intention to cancel and the decision of this Tribunal in Re Andiwadjaja and MIMIA [2003] AATA 397 (per Senior Member Lindsay) was referred to in support of such a contention.
CONSIDERATION
13. It is true that the Act imposes limits on the period within which the Minister is able to cancel visas. Briefly, the scheme of the cancellation provisions is that s134(9) requires that a notice of intention to cancel (pursuant to s135(1)) must be given within a three-year period of the date of the grant of the visa or the date of the first entry into Australia after the grant. That notice must invite representations within 28 or 70 days after the notice is given (depending on whether the notice is given in Australia or outside Australia) – and if that period expires after the three-year period mentioned above then the Minister may only cancel the visa within the period of 90 days commencing at the end of the period specified in the notice for the receipt of representations: s135(1), (4) and (5).
14. In the present case the first relevant date is 18 January 1999, being the date of Mr Prawiro’s first arrival in Australia after the grant of the visa. The three-year period specified in s 134(9) therefore ended on 17 January 2002. The notice of intention to cancel under s 135(1) was dated 11 December 2001 and was posted to an address in Australia. By virtue of reg 2.55 it was deemed to have been “given” seven working days later, or 20 December 2001 – a date well before 17 January 2002. Section 134(9) was, therefore, complied with.
15. The notice specified 23 January 2002 as the date within which representations could be made. On the authority of Tio v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 53 the first day of the 90-day period specified in s135(4) was 24 January and the period ended at the end of 23 April 2002. On this basis the cancellation decisions made on 23 April 2002 were made on the last day available to the Minister to do so. I note that in the respondent’s written submissions the 90-day period was said to have ended on 24 April. In my opinion that is not correct, but it does not affect the outcome of the case.
16. However, the point of the submission made by Mr Prawiro is that, in specifying 23 January 2002, the notice did not specify a period that was 28 days after the date of the giving of the notice. A period of 28 days exactly after the date on which the notice was taken to be given (i.e. 20 December 2001) would have ended on 17 January 2002 and a 90-day period after that date would have ended on 17 April 2002. That is, of course, six days before the cancellation decisions were actually made.
17. The question arises, therefore, as to what is the significance of the fact that the notice of intention to cancel did not specify a date by which representations were to be made that was exactly 28 days after the date on which the notice was taken to have been given.
18. In Tio the Full Federal Court did not have to decide the question posed at [17]. Rather, the issue before the Full Court was when the period of 90 days referred to in s135(4)(b) commenced. Nevertheless, two members of the Court made observations concerning the 28-day period referred to in s135(1)(b)(i). Lindgren J observed at [17] that s135(1) requires that the notice of intention to cancel a visa must allow “a full period of 28 days after or from the end of the day on which it is given, and expiring at the end of that period of 28 days”. At [23] his Honour observed that “s135(1) allows no lee way and requires the giving of a notice which has the effect of allowing a period expiring at the end (midnight) of the 28th day.” At [24] his Honour commented that “regardless of its form, a valid notice will always have the effect of allowing exactly 28 days expiring at the “time” of midnight on the 28th day.” At [63] Downes J observed that “problems might arise if a notice specifies a date which does not accord with the date required by sub para 135(1)(b)(i). However, that problem does not arise here”. It should be noted that in Tio the notice given under s135(1) specified a time for making representations that was exactly 28 days after the date on which the notice was taken to be given.
19. At the outset it should be noted that the language of s135(1) is in mandatory terms; before there can be cancellation of a visa a notice must be given that complies with paragraphs (a) and (b) of that subsection – in particular it must invite representations within 28 days after the notice is given.
20. The notices given in the present case did not so comply in that they specified a period that was greater than 28 days. What is the consequence of such non-compliance? In Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 the High Court (per McHugh, Gummow, Kirby and Hayne JJ) said (with references deleted):
91 An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied…; there is not even a ranking of relevant factors or categories to give guidance on the issue.
92 Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority….. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition…. Cases falling within the second category are traditionally classified as directory rather than mandatory. …As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity…. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been "substantial compliance" with the provisions governing the exercise of the power…. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. …
93 In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood… in criticising the continued use of the "elusive distinction between directory and mandatory requirements"… and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning…. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales…. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute"….
21. The regime that I described briefly at [13] above is consistent with the comment of the responsible Minister in the second reading speech relating to the Migration Amendment Act (No.2) 1992 by which s135 was inserted into the Act. The Minister stated that s135 “recognises that, as permanent residents, business migrants should not be under the threat of cancellation indefinitely.” The Act provides a regime by which action to cancel must commence within 3 years of the visa holder first entering Australia and must be finalised within a few months after that 3 year period at the latest. Equally, it is clear that the cancellation of a visa is not to occur unless the visa holder has been given warning of its possible cancellation and given a reasonable period within which he or she can make representations regarding cancellation. Parliament must be taken to have intended that a period of 28 days (if the notice of intention to cancel was given within Australia) is a reasonable period of time for the making of representations.
22. In my opinion, the legislative purpose that can be discerned from these provisions is that a visa holder should have at least 28 days within which to make representations. . In Andiwidjaja (supra, at [52]) SM Lindsay noted that in that case the date specified for the making of representations in the notice of intention to cancel (16 December 2001) was two days before the 28th day after the notice was to be taken to have been given. Nevertheless, SM Lindsay concluded that the notice was not invalid as it did not omit information that was misleading or impaired the applicant’s ability to respond, referring to the Full Federal Court decision in NAAV v MIMIA [2002] FCAFC 228; 193 ALR 449. Although that situation does not arise in this case and I do not have to determine the point, it seems to me that a notice given under s135(1) that nominated a period of less than 28 days may well not provide a reasonable period for making representations and such a non - compliance with the requirements of the statute may result in the invalidity of the giving of the notice. I note in passing that the Minister’s department appears to hold that view because clause 6.4 of its Ministerial Series Instruction 133 document (T22) states, in relation to the s135(1) time requirements, that “it is not possible to reduce these periods under any circumstances.”
23. However, that is not the present case and I do not consider that the same can be said for a notice that nominates a longer period of time than 28 days. Although the longer period has the effect of delaying the start of the 90 day period within which the final cancellation decision must be made, it also has the advantageous result for the visa holder of allowing not only a greater period of time within which to make representations but also a greater period of time to put in place business arrangements that may in the long run mean that cancellation of the visas is not possible. In my opinion no legislative purpose can be discerned that requires the conclusion that a notice given under s135(1) will only be valid if it nominates exactly a 28-day period rather than a period that is longer than 28 days.
24. The fact that s135(4), when dealing with the specific period of time within which the Minister must act to cancel the visa, refers to the 90 - day period as commencing at “the time specified in the notice“ given under 135(1) – rather than as commencing 28 days after the s135(1) notice was given - lends support for the conclusion that s135 as a whole does not contemplate that a notice of intention to cancel will be invalid if it nominates a time that is greater than 28 days for the making of representations.
25. My conclusion is, therefore, that the notices of intention to cancel dated 11 December 2001 were not invalid by reason of the fact that they nominated a period of more than 28 days within which representations could be made by the visa holders. I conclude that valid notices were given under s135(1). Because the date specified in the notice of intention to cancel was outside the three-year period from when Mr Prawiro first entered Australia, s 135(4) applied and the cancellation decision had to be made within the 90 day period. I find that the decisions made on 23 April 2002 were made within that period.
26. It follows that, because Mr Prawiro did not otherwise contest the grounds upon which the cancellation decision was made, that I should affirm the decision made on 23 April 2002 to cancel his business visa.
27. In relation to the application made by Christy, as noted above I was informed that this application would not be pursued and, accordingly, I affirm the cancellation decision made in respect of Christy’s visa.
28. In relation to the application made by Ratika, I must consider whether her visa should be cancelled. This requires consideration of whether or not cancellation of her visa would result in extreme hardship to her.
29. Ratika gave evidence that she was 19 years of age and until 1998 she had lived at home in Jakarta with her family, but in that year she and her sister and her mother had come to Australia because of racial disturbances in Indonesia. She had gone to school in Australia for part of 1998 but between 1999 and 2001 she had completed 3 years of schooling at a boarding school in Malaysia. In early 2002 she had returned to Australia to complete her final year of high school at a Perth boarding school. In 2003 she had started an undergraduate food science course at Curtin University which she expected to complete at the end of 2005. Thereafter, she hoped to work in Australia for one or two years and then undertake a two year masters degree in food science.. She rents a room near Curtin University and has some relatives living not far away. She does not work and is fully dependent on her father. Ratika said that she had not lived in Indonesia for some years, although she visits her parents approximately twice a year. She has settled well into Australia and had formed many good friendships that would be hard to break if she had to return to live in Indonesia.
30. She has explored the possibility of trying to do a food science degree in Indonesia but there is only one university in Jakarta that offers such a course and it is a small university with very limited laboratory and other facilities. She would be very unhappy to attend university in Indonesia because she considers them to be unsafe. She has friends attending university in Indonesia and has visited several campuses. She has seen drug dealers in operation and has heard stories of how unsafe the universities are, particularly for female students. The universities do not provide any security and there is a need to have someone accompany girls at all times. She believes that a degree in food science from Curtin University would have far greater prestige and recognition than such a degree from an Indonesian university.
31. When she is in Indonesia she does not want to drive a motor vehicle, even though she is allowed to do so. She is afraid of the traffic and scared of accidents. Because of that, when she is in Indonesia she finds it difficult to get out of her parents’ house, except when they accompany her. She is concerned about the possibility of a re-occurrence of the racial violence that occurred in the late 1990s. She had not personally been exposed to those troubles but relatives and friends of hers had been affected. She had not explored in any detail the possibility of obtaining a student visa to remain in Australia to continue her studies but she understood that even if she were able to obtain such a visa the fees payable to the university would be considerably greater than would otherwise be the case. She does not suffer from any medical problems but when she returns to Indonesia she finds that the pollution in the air causes her to cough and to produce flu - like symptoms.
32. Mr Prawiro gave evidence in support of his daughters’ claim. He said that he considered universities in Indonesia to be unsafe and that many stories were published in newspapers of violence in the universities. He said that he had not been able to afford to keep his family in Australia during 1998 even though he wanted to and that was the reason why he had arranged for his daughters to go to a boarding school in Malaysia. As regards the racial riots that had occurred in Indonesia, Mr Prawiro said that they had not impacted directly on his family but there had been disturbances quite close to their house in Jakarta. Many homes nearby had been burned and robbed over a period of several days. They had seen the people involved in the disturbances and there was no sign of police or other security officials at all.
33. The Act does not define “extreme hardship” and the practical onus of establishing this ground rests on the person asserting that there would be extreme hardship if the visa is cancelled ie. Ratika. The meaning to be given to those words was considered by the Federal Court in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481. At 487 Foster J said that:
“…it is, in my opinion, important to approach the phrase “extreme hardship” in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case. ‘‘Hardship” is in itself a relative term. What may be a “hardship” to a sensitive person, or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more protected situation. Similarly, the word ‘extreme’ must be evaluated against the facts of a particular case. Such an evaluation cannot, consistently with the duties imposed upon the decision-maker by the Act, be approached in a dismissive or perfunctory fashion. A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken. ….
In addition to what I have already said, I consider that the application of the word “extreme” must also be approached with caution. Obviously there are varying degrees of hardship which may be suffered by any particular individual. “Trivial”, “minor”, “moderate” are adjectives which spring to mind as conveying such varying degrees. Clearly enough, “extreme” hardship must find itself at the very high end of the scale. This does not mean, however, that in any given case, “extreme hardship” means, in effect, a particular point on a continuum of hardship. It obviously denotes an area in which an ascertainable burden of hardship may fall and properly merit the description “‘extreme”.. Within that area there may be varying degrees of burden, one less than another, but each meriting the description.”
34. In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AAT 961 at [28] to [31] Deputy President McMahon observed that extreme hardship in the context of s134(5) must be judged subjectively; that hardship involves more than inconvenience or detriment – it must be affectation to a considerable degree; that helpful dictionary definitions of the word extreme” include “utmost or exceedingly great in degree” or “to a very high degree”; that the hardship must necessarily result from the cancellation and be a necessary concomitant of the cancellation – a mere possibility or even a probability would not be sufficient - the adverse consequence must almost certainly happen; and that to demonstrate the constituent elements in subsection (5) is to undertake a particularly onerous task. DP McMahon concluded at [32] that “it is clear that the applicant does not wish to leave Australia. That in itself cannot amount to hardship. The fact that the loss of a visa means that the applicant would need to leave Australia cannot of itself amount to hardship as this is the result contemplated by the statute upon cancellation. One must look at the consequences to the applicant that undoubtedly would result from the cancellation.”
35. In the present case it is obvious that Ratika does not wish to return to Indonesia to live and would much prefer to remain in Australia studying for a degree at a university that she believes will give her a better qualification than she could obtain in Indonesia. I am sure that she has made friendships in Australia that she will be sorry to leave. Equally, she may well find living conditions in Jakarta more restrictive and less pleasant than would be the case in Australia and she may need to have greater regard for her personal security. However, and putting aside the possibility that she may in fact be able to remain in Australia for the time being under a student visa, I do not consider that the limitations and setbacks, as upsetting as they may be, that Ratika might experience if she returned to Indonesia can be said to be hardship that is so certain and so serious that it can be regarded as extreme hardship in the context of s134(5) of the Act. She will be returning to her family home to live with her parents and sister in a country that she has visited regularly over the years. There will be no language or financial difficulties and I do not consider that any emotional upset about the return to Indonesia will be great. Having regard to all of the evidence that is before me concerning Ratika I do not consider that any hardship that she may endure as a consequence of the cancellation of her visa can be described as extreme hardship. I therefore affirm the decision of 23 April 2002 to cancel her visa.
36. My decision is, therefore, that the decisions made on 23 April 2002 by a delegate of the respondent to cancel the visas held by the applicants are affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: ..................(sgd V Wong)...........................
AssociateDate of Hearing 13 August 2003
Date of Decision 30 October 2003
Counsel for the Applicant In person
Counsel for the Respondent Mr N Dawson
Solicitor for the Respondent Blake Dawson Waldron
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