Sack and Minister for Immigration and Multicultural and Indigenous Affairs - [2002] AATA 675

DECISION AND REASONS FOR DECISION [2002] AATA 675

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1902

GENERAL ADMINISTRATIVE DIVISION       )
           Re      TERENCE RICHARD SACK
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
  Respondent

DECISION

Tribunal The Hon R N J Purvis QC, Deputy President

Date9 August 2002
PlaceSydney

Decision The decision under review is set aside, the Respondent to not proceed with the cancellation of the Applicant's Business Skills visa.

[SGD] The Hon R N J Purvis QC
Deputy President
CATCHWORDS
Migration – Business Skills visa – whether decision to cancel was made within 90 days – whether period of 90 days commenced on day specified in notice or from day after – decision of Minister on 91st day – Minister cannot proceed with cancellation

Acts Interpretation Act 1901 sections 15AA, 36
Migration Act 1958 sections 134,135

Wang and Ors v Minister for Immigration and Multicultural Affairs [2002] AATA 499
Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524
Watson v Uniframes Ltd & Trumbull (1994) 55 FCR 556
Minister for Immigration & Ethnic Affairs v Teo (1995) 57 FCR 194

REASONS FOR DECISION

9 August 2002 The Hon R N J Purvis QC, Deputy President

the factual background and issue for decision

Mr Terence Richard Sack ("the Applicant"), a resident of the Republic of South Africa, was on 16 January 1998 granted a Business Skills (Migrant) (Class AD) subclass 127 visa. He first entered Australia after being granted the visa on 10 July 1998. The visa permitted unlimited travel and entry to Australia until 16 January 2003.
On 8 June 2001 an officer of the Department of Immigration and Multicultural and Indigenous Affairs ("the Respondent") gave notice to the Applicant of an alleged failure on his part to meet the requirements of the Business Skills visa. After detailing deficiencies said to have occurred over the period since the visa was granted, the Respondent requested the Applicant to comment upon the ground for cancellation and to give reasons, why the visa should not be cancelled. Pursuant to the provisions of the Migration Act 1958 ("the Act") the Applicant was to provide a written answer together with any documentation thought to be in support of his claim by 7 September 2001. The request noted that (T6, p26):
"If you do not respond within that time, a decision on whether to cancel your visa will be made using the information already held by the Department."
Notices to a similar effect were given to members of the Applicant's family.
On 24 August 2001 the Applicant wrote to the Respondent noting that he had received the letter six weeks after its date and requesting an extension beyond 7 September 2001 in which to respond. On 24 September 2001 the Respondent wrote to the Applicant stating inter alia (T8, p31):
"…As the time for the response to a Notice of Intention to Cancel your Business Skills visa, is set by legislation I am unable to grant you an extension.
You must respond to this notice in writing and your response must be received in this office before the date stated in your Notice of Intention to Cancel, any information received after this date but before a decision is made will also be taken into consideration. This Notice of Intention to Cancel is a warning that unless you provide documentary evidence as proof that you are meeting your Business Skills visa requirements your visa will be cancelled. However, if you send in documentary evidence that you are meeting your visa requirements cancellation of your visa will not proceed.
…"
By e-mail and facsimile the Applicant by himself or his agent provided to the Respondent information as to his various business activities, and on 21 October 2001 he completed a "Survey of Business Migrants" (T11, p42).
However, on 6 December 2001, and pursuant to a Decision Record of the same date recommending cancellation of the Business Skills visa of the Applicant and his family members under section 134 of the Act, the Applicant's visa was purportedly cancelled. In an assessment of the Applicant's claims made in response to the Notice of Intention to Cancel the visa it was stated (T14, p61):
"…
Section 134(2) states that the Minister must not cancel a business visa under s134(1) if the Minister is satisfied that is [sic] holder has made, and will continue to make, a genuine effort to obtain a substantial ownership interest in and utilise his or her skills in actively participating at a senior level in the day-to-day management, of an eligible business in Australia. S134(3) sets out the matters that the Minister may take into account when determining whether a person has made the genuine efforts referred to in subsection (2).
In considering whether Mr Sack has made genuine efforts, I have taken the information provided by Mr Sack's agent, Mr Levine into account. While these documents have been provided as evidence that Mr Sack's visa should not be cancelled they do not verify that Mr Sack is involved in business activities in Australia or that he has made genuine efforts to engage in an eligible business in Australia. Furthermore, Departmental records indicate that Mr Sack has spent a total of only 2 days in Australia since his initial entry on 10 July 1998 and has not returned to Australia since 11 July 1998. Given the lack of evidence of any business activities in Australia, and the evidence from Departmental records that indicate that Mr Sack is based overseas, I am not satisfied that he meets the requirements of sections 134(1) and (2).
…"
In its notification of the decision to cancel the Business Skills visa under section 134 of the Act, also dated 6 December 2001, the Respondent stated (T15, p63):
"On 8 June 2001 the Department informed you of its intention to cancel your Business Skills visa. Under section 135 of the Migration Act (the Act) you were given until 7 September 2001 to comment on the grounds for cancellation and give reasons why your visa should not be cancelled. Gary Levine, from Migration Aid responded on your behalf in a letter dated 1 November 2001.
On 6 December 2001 a decision was taken to cancel your Business Skills visa under section 134 of the Act. The reasons for this decision are outlined in the attached decision record…"
The Applicant has remained a resident of South Africa and on 14 December 2001 he requested an extension of time in which to lodge an application to the Administrative Appeals Tribunal for a review of the Respondent's decision of 6 December 2001, this largely on account of his being outside of Australia and the time taken to effect service upon him. The application was granted on 11 January 2002. Under date of the 18 January 2002 the Applicant made an application to the Tribunal for review of the decision of 6 December 2001. In the reasons for making the application, the Applicant detailed business activities said to warrant retention of the Business Skills visa and "in the alternative" submitted (T3, p12):
"…on the date on which the Delegate for the Minister for Immigration…made a decision to cancel the Business Skills visa of the Applicant, namely on 6th December 2001, that such cancellation was undertaken more than 90 days after the period specified in the Notice of Intention to cancel the visa, given to the Applicant, which was the 7th September 2001.
… Section 135(4)(b) [of the Act] … states inter alia as follows:
…
In accordance with the aforegoing provision, it is submitted that the 90 days period in accordance with the above sub-section, commenced on 7th September 2001, being the time specified in the notice, and that on 6th December 2001, on which the decision was taken to cancel the Applicant's visa, was the 91st day from the date specified in the notice.
It is our submission that in accordance with Section 135(4)(b) the period of 90 days would have ended on 5th December 2001."
By consent of the parties, the application presently before the Tribunal is to determine the "alternative" submission, the merits review to abide such decision. The issue is presently, whether the Respondent is precluded from proceeding with the cancellation of the Applicant's Business Skills visa by reason of the application of subsection 135(4) of the Act.
There is no issue as to the notice and time periods in the notice being in accord with the provisions of subsection 135(1) of the Act.
the hearing
At the hearing of the present application, the Applicant was represented by Mr S M Gerber and the Respondent by Mr Tim Reilly, both of counsel.
The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T15. The matter otherwise proceeded by way of oral submissions.
relevant statutory provisions
The statutory provisions relevant to this present application are those of the Acts Interpretation Act 1901 and the Migration Act 1958.
the acts interpretation act 1901
Section 15AA:
"Regard to be had to purpose or object of Act
(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."
Section 36:
"Reckoning of time
(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.
(2)…"

Migration act 1958

Section 134:
"Cancellation of business visas
…
(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."
Section 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.
…"

submissions and decision

The Applicant contends that the Respondent may only proceed with cancellation if paragraphs (a) and (b) of subsection 135(4) of the Act have been complied with. There is an admission on behalf of the Applicant that paragraph (a) of subsection 135(4) of the Act has been satisfied in that the date upon which representations were to have been made, that is 7 September 2001, ended after the end of the period referred to in subsection 134(9) of the Act, the period being a three-year period commencing 10 July 1998, the date on which the Applicant first entered Australia after the visa was granted. However, the Applicant submits that the Respondent did make a decision to cancel the visa "at the end of the period of 90 days commencing at the time specified in the notice." The period of 90 days commencing on 7 September 2001 would end on 5 December 2001. The decision was made on 6 December 2001. In determining the period of 90 days, the Act it is submitted (subsection 135(4)(b)), specifies that the period is to be determined with the first day commencing at the day specified in the notice.
On the other hand, the Respondent maintains that subsection 135(4)(b) is not applicable because the decision to cancel the visa was made on the 90th day of the period allowed. The Respondent relies upon subsection 36(1) of the Acts Interpretation Act 1901 as being relevant in that the day specified in the notice is not counted, subsection 135(4)(b) prescribing "a period of time dating from a given day" within the meaning of subsection 36(1). Thus, the period of time is to "be reckoned exclusive of such day". It is further submitted that in the present circumstances, there is no contrary intention expressed in the legislation as provided for in subsection 36(1). The Respondent submits, that if the day specified in the notice is counted as the first day of the 90 day period, that a visa could be cancelled within the period allowed by subsection 135(2) for the visa holder to make representations as to why the visa should not be cancelled. Alternatively, the Minister could be denied the full period allowed by subsection 135(4)(b) for considering whether to cancel the visa or not. It is said that neither result would conform with the legislative intent apparent from section 135, that there be two consecutive but non overlapping periods, one for the visa holder to make representations and the other for the Minister to consider cancellation. The Tribunal does not agree that it is apparent from the legislation that the intent was and is as alleged.
Similar submissions to those made in the present application were made before this Tribunal in the matter of Wang and Ors v Minister for Immigration and Multicultural Affairs [2002] AATA 499. In the later mentioned application, the Tribunal was called upon to consider the same issue as arises in the present application. So far as it is here relevant in the reasons for decision in Wangand Ors v Minister for Immigration and Multicultural Affairs (supra) it was stated:
"27. The expression "the time" appears in sub-section (2) and appears also in sub-section (4)(b). Its place within ss (2) suggests that the words refer to a "period" of time, whereas the use of the same words in ss (4)(b) suggest a "point in" time. A similar or uniform interpretation to the words "the time" in each of the sub-sections would produce absurdity.
…
29…the expression "the time" as it appears in ss (2) is given its meaning not only by context, but by the word "within" as it immediately proceeds these words. The entire expression namely "within the time" is, in the circumstances clearly referable to a period of time.
30. The expression "the time" as it appears in ss (4) is given its meaning by the preceding word, namely "at". The entire expression namely "at the time" is clearly, in my view, referable to a point in time.
…
33…I am influenced by the word "commencing", as it immediately proceeds the expression "at the time". The word "commencing" is a term of everyday language and needs no special or legal interpretation. It means "to commence" or "beginning". On the analysis given above to the words "at the time", I am satisfied that the entire expression "commencing at the time" means to either begin or commence at a point in time. That point in time is that which is "specified in the notice"….
…
35. In Darwin Broadcasters (Darwin Broadcasters P/L v Australian Broadcasting Tribunal (1990) 95 ALR 138) Beaumont J discussed the words "relevant period" which the Broadcasting Act defined as a period of 60 days, "commencing on the day on which the notice is given". His Honour said, at 141-
"A question arises as to how the period of 60 days is to be calculated… It follows, in my opinion, that the Acts Interpretation Act does not apply here. In the first place, the Acts Interpretation Act applies where the period is to date "from" a given day, act or event. This can, I think, be distinguished from a provision that period is to commence "on" that day. Even if that not be so, the question still remains whether s 83A(11) [of the Broadcasting Act] has indicated a "contrary intention" within the meaning of the Acts Interpretation Act. In my opinion, such an intention does appear from the choice of a language used in s 83A(11)."
36. The expression "commencing on" does not exist within ss (4), but there is a similarity of intent and application…between those words and the words commencing "at the time"…the words may be understood and interpreted as meaning commencing or beginning at a point in time…s 36 of the Acts Interpretation Act 1901 does not apply. The language of ss (4) does not indicate that the period of time commences "from" a given day, act or event…the applicable period of time commences "at" a point in time specified in the notice… if the Parliament intended that the period of time commenced…on…it would not have used the expression "commencing at the time". Instead it would use language that is either more certain in its intention or adopt language consistent with s 36 of the Acts Interpretation Act 1901.
…
40. Nonetheless, if there is any ambiguity, the liberties and rights of visa holders should be acknowledged and preserved. A construction that ensures those ideals are honoured, is to be preferred.
…"
This Tribunal agrees with the reasoning of the Tribunal in Wang and Ors v Minister for Immigration and Multicultural Affairs (supra) and, except for that contained in paragraph 40 supra, adopts the conclusions there reached. The use of the words "at the time specified in the notice" in subsection 135(4) is clearly a point in time. The Acts Interpretation Act 1901 relevantly refers to "any period of time dating from a given day". Section 135 does not specify a period of time dating from a given day but a period commencing on a particular day namely, "at the time specified in the notice". Thus, the words "commencing at the time" are to be given the meaning ascribed to them by the Tribunal in paragraph 33 and 36 of its abovenoted reasons for decision.
In Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 at 527 and Watson v Uniframes Ltd & Trumbull (1994) 55 FCR 556 at 560, the Court was there considering the meaning to be ascribed to the words "commencing on the day on which the notice is given" in the former case and "beginning on that day" in the latter. In both cases, the requirements of the Acts Interpretation Act 1901 and the Corporations Law (which was to a similar effect) were deemed not to be applicable. It is the opinion of this Tribunal that phrases such as "commencing on the day on which the notice is given" and "beginning on that day" are comparable with the phrase "commencing on the time specified in the notice".
In paragraph 40 of the decision in Wangand Ors v Minister for Immigration and Multicultural Affairs (supra) reference was made to "the liberties and rights of visa holders" being acknowledged and preserved and this factor being in aid of interpretation. Section 15AA of the Acts Interpretation Act 1901 refers to the purpose or object underlying an Act, if need be, to be relevant in that a construction that would promote that purpose or object is a factor to be taken into account in aid of interpretation. It is the opinion of this Tribunal that the Act, as was submitted on behalf of the Respondent, is intended to consider the interests of the competing parties and is to be interpreted accordingly (Minister for Immigration & Ethnic Affairsv Teo (1995) 57 FCR 194 at 206). But it is the public interest that is upper most. The competing interests are those of a visa holder and the welfare of the Australian community. This Tribunal does not consider that a construction ensuring that the "ideals" of "liberties and rights of visa holders" are honoured is a construction that is to be "preferred".

However, the latter consideration and opinion is not germane to the decision under review.
For the reasons hereinbefore set forth, the Tribunal concludes that the period of 90 days was to commence on 7 September 2001 and would end on 5 December 2001. The decision under review was made by the Respondent on 6 December 2001. Pursuant to subsection 135(4) of the Act, the Respondent is not to proceed with the decision to cancel the Applicant's visa.
The decision under review is set aside, the Respondent to not proceed with the cancellation of the Applicant's Business Skills visa.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis QC, Deputy President
Signed: H Sim         .....................................................................................
  Associate
Date of Hearing  12 July 2002
Date of Decision  9 August 2002
Counsel for the Applicant        S M Gerber
Counsel for the Respondent    Tim Reilly