Su and Minister for Immigration and Multicultural Affairs - [2002] AATA 305

DECISION AND REASONS FOR DECISION [2002] AATA 305

ADMINISTRATIVE APPEALS TRIBUNAL )     Nº N2001/899
GENERAL ADMINISTRATIVE DIVISION   )
  Re:        Chueh Lien-Ho Su
  Applicant
  And:      Minister for Immigration and   Multicultural Affairs

Respondent

DECISION

Tribunal:       Mr P.J. Lindsay, Senior Member
Date:             3 May 2002
Place:            Sydney

Decision:The decision under review to cancel the business skills visa of Chueh Lien-Ho Su is affirmed; the decision to cancel the business skills visa of Jan-Ho Su is affirmed; the decision to cancel the business skills visa of Yi-Hsien Su is affirmed; the decision to cancel the business skills visa of Yi-An Su is affirmed; and the decision to cancel the business skills visa of Fang-Yi Su is set aside.

. . . . . . . . . . . . . . . . . . . . . . . .
Mr P.J. Lindsay
Senior Member
CATCHWORDS Migration – business skills visa subclass 127 – giving notice of intention to cancel visa – service of notice at address last known to respondent - discretion not to cancel visa – cancellation of visa –cancellation of secondary business visas
Migration Act 1958 (C'th) – ss.134, 135, 136 and 137.
Migration Regulations 1994 – reg 5.02A, 5.03.
Al Adwan v Minister for Immigration and Multicultural Affairs [2001] FCA 706
Rodwell v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 195
R v Moodie and Others; ex parte Mithen (1977) 17 ALR 219
Minister for Immigration and Multicultural Affairs v Singh (2000) 171 ALR 53
Rahman v Minister for Immigration and Multicultural Affairsand Another (1998) 51 ALD 316

REASONS FOR DECISION

Ms Chueh Lien-Ho Su, the applicant, has applied for review of a decision dated 13 June 2001 by a delegate of the Minister for Immigration and Multicultural Affairs, the respondent, to cancel her business skills visa pursuant to s.134(1) of the Migration Act 1958 (the Act).

The applicant was represented at the hearing by Mr C. Levingston, solicitor, and the respondent by Ms S. Goodman, solicitor. The documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) were received into evidence and further documents were tendered and marked as exhibits (Exhibits A1 and R1).
BACKGROUND
On the basis of the material in the T documents, the Tribunal is satisfied that on 14 April 1998 the applicant was granted a Business Skills (Migrant) visa subclass 127. The visa's expiry date is 14 April 2003. It was granted to the applicant while she was out of Australia. Her husband Jan-Ho Su, sons Yi-Hsien Su and Yi-An Su, and daughter Fang-Yi Su were issued secondary visas on 14 April 1998.
The applicant, who was born on 31 December 1950, is a citizen of Taiwan.
At the time of the application for her business skills visa in April 1996, the applicant was a director and president of a manufacturing and trading company, Chang Cheng Corp, which was located in Taipei. The applicant stated in her Supplementary Information Form 928 (T42), also completed in April 1996, that the company's main activity was the manufacture and sale of lunch boxes and foods, and trading of instant coffee and fruit juice soda. Her application noted that she was responsible for all the daily management and major decisions of Chang Cheng Corp, handling its finances, purchasing and production. The applicant described her intended business activities in Australia as involving the establishment of a marketing operation in Sydney to work in close liaison with Chang Cheng Corp and later to export Australian produce, such as pork and beef, to Taiwan and Asian countries. She planned to invest $600,000 in her Australian business.
As part of the application for the business visa, the applicant declared that she understood that the respondent's Department conducted regular surveys, usually at 12, 24 and 36 monthly intervals, concerning visa holders' business activities in Australia. In addition to the applicant's residential address, the application contained an address in Taipei of Australia-Taiwan Development Co. Ltd, an organisation that helped her in completing the application form. She also agreed in the Declaration – Business Skills Migrant, Form 926 (T38) to notify the Department of her residential address within 28 days of entry into Australia as a business skills migrant and, for a further three years thereafter, to notify the Department of changes in her residential address (including any such address outside Australia) within 28 days.
It is not in dispute that, during the period from 15 April 1998 when she first entered Australia after being granted the visa to 13 June 2001 being the date of the decision to cancel the visa, the applicant was present in Australia for a total of only 20 days. In fact, during that period, she did not return to Australia after October 1999.
legislation
Section 134(1) of the Act confers a discretionary power upon the respondent to cancel a business visa if satisfied of certain matters; it reads:
(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.

Section 134(2) of the Act sets out the circumstances in which the respondent is not to exercise the power to cancel given by s.134(1):

(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c) intends to continue to make such genuine efforts.

…

A consequence of cancelling a person's business visa is the consequential cancellation of certain business visas held by members of the person's family unit pursuant to s.134(4) of the Act:
(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.

The meaning of "member of the family unit" is found in r. 1.12 of the Migration Regulations 1994 which states (subregulation (2) is not presently relevant):

(1) Subject to subregulation (2), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse of the family head; or
(b) a dependent child of the family head or of a spouse of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse of the family head; or
(d) a relative of the family head or of a spouse of the family head who:
(i) does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head; or

(e) a relative of the family head or of a spouse of the family head who:
(i) has never married or is widowed, divorced or separated; and
(ii) is usually resident in the family head's household; and
(iii) is dependent on the family head.

However, s.134(5) of the Act provides that consequential cancellation is not automatic if the family member would suffer extreme hardship:

(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.
…

The power to cancel a business visa may be exercised only within a three year period prescribed by s.134(9) of the Act:
(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 134(1) is expressly subject to s.135 of the Act, which provides relevantly:
(1) Before cancelling a visa under section 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.
…

Section 136 of the Act gives the Tribunal jurisdiction to review the respondent's decisions under ss.134(1) or 134(4) and reads:
Application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister under subsection 134(1), (3A) or (4).

Under s.137(1) of the Act the Secretary to the respondent's Department (the Secretary) can require visa holders to furnish information about their business activities in Australia and under s.137(4) the Secretary can require visa holders to inform the Secretary of any change in their address during particular periods. Section 137 relevantly provides:
(1) The Secretary may by written notice require the holder of a business visa to give the Secretary such information as is specified in the notice.
(2) The Secretary may not require information under subsection (1) unless the information is to be used by the Secretary or the Minister for the purpose of the administration of this Act or of regulations made under this Act.
(3) A notice under subsection (1) is only valid in the period of 3 years commencing:
(a) if the 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 the holder was not in Australia when he or she was first granted a business visa—on the day on which the holder first entered Australia after that first visa was granted.
(4) Without limiting the generality of the information that may be required under subsection (1), the Secretary may require the holder to advise the Secretary in writing of any change in the address of the holder during a period specified in the notice.
(5) A notice under subsection (1) must state that the information must be provided within a period of 28 days commencing on a day specified in the notice.
(6) The day specified in the notice may be:
(a) the day on which the notice is issued; or
(b) a later particular day; or
(c) the day on which an event specified in the notice occurs.
(7) A person who, without reasonable excuse, fails to comply with a notice under subsection (1) commits an offence at the end of every successive 28 day period that is contained in the period commencing on the day specified in the notice and ending when the person complies with the notice.
…

evidence

In opening, Mr Levingston informed the Tribunal that no evidence would be given by the applicant or any of her family. He said that the applicant's decision was well considered and that "particular difficulties in our case" were recognised in respect of the issues raised in s.134(1) of the Act. Mr Levingston said that, for the purpose of these proceedings, neither the applicant nor any of her family would be contending that cancellation of the secondary visas would result in extreme hardship to them. In addition, Mr Levingston said the applicant did not rely on any of the material in the letter of 14 June 2001 by Chew and Chiu, chartered accountants, on her behalf to the respondent's delegate (T95).
Mr Levingston conceded that there was no dispute regarding the facts set out in the respondent's letter of 13 June 2001 (T6), informing her of the cancellation of the visa and the basis for the cancellation. Among other things, the letter referred to the facts that the respondent's delegate had taken into account in deciding that there were grounds on which to cancel the visas. The only matter the applicant disputed was whether the respondent had given notice of his intention to cancel the visas within the requisite three year period in s.134(9). It was agreed that the notice's form and contents complied with s.135's requirements.
The parties agreed that on 16 April 1998, the day after she first entered Australia following the grant of the visa, the applicant sent a Notification of Address or Change of Address, Form 922, to the respondent stating that her current or contact address was 44/533 Kent Street, Sydney (T68). The respondent acknowledged receipt and reminded the applicant to inform the Department if she should change address in the future (T 69).
On 6 March 2000 the respondent sent the applicant a Survey of Business Skills Migrant - 24 month survey, Form 1010 (T70). It was addressed to the applicant at 44/533 Kent Street, Sydney. A response was required within 28 days of the second anniversary of the applicant's arrival in Australia and in this case the form was due before 12 May 2000.
Some months later on 20 October 2000, the respondent wrote to the applicant, again at the Kent Street address, asking for a response to the 24 month survey (T71). There was a reminder in the letter that, in her Declaration – Business Skills (Migrant) Class Form 926 (T38) signed on 2 April 1996, the applicant had agreed to complete the surveys that the Department sends requesting information about her business activities in Australia. The letter informed the applicant that completion of such surveys was a compulsory requirement of her visa and that non compliance may lead to a case being presented to the respondent to decide whether her visa should be cancelled under s.134. On 16 March 2001 a Survey of Business Skills Migrant – 36 months, Form 1010, was sent to the applicant at the Kent Street address (T72).
A notice of intention to cancel the applicant's visa dated 20 March 2001 was sent by the respondent to the applicant at her Kent Street address (T73). Similar notices of intention to cancel were sent to each of her family members at the Kent Street address (T83-93). The Tribunal finds that the notices invited the applicant and her family members to respond in writing by 24 April 2001 if they considered their visas should not be cancelled and if cancellation would cause a family member extreme hardship.
Ms Goodman referred to Exhibit R1, an extract from an Australia Post registered post lodgment document. Although there was no evidence from Australia Post concerning their registered post practices, Ms Goodman asserted that the document recorded some of the notices of intended cancellation as having been sent by registered post on 20 March 2001 to 44/533 Kent Street, Sydney. Nothing turns on the point that the extract does not record the lodgment of the notices for sending to Yi-Hsien Su and Yi-An Su.
All the notices were returned in their envelopes (T82, 85, 88, 91 and 94) to the respondent on 8 May 2001. There were three superscriptions on the envelopes. Although not wholly legible, in part one said "Card left 22/3", from which Ms Goodman inferred that cards were left at the Kent Street address for each addressee informing them that Australia Post was holding registered post items for their collection. There was a Return to Sender stamp on each envelope. The stamp gave a number of alternative reasons for the item's return: no such street / number; insufficiently addressed; unknown at address; left address; refused; and unclaimed. Each Return to Sender stamp showed that the reason for return was "unclaimed" and the stamp had been initialled, presumably by an employee of Australia Post. The remaining superscription was a date stamp noting that the returned envelopes were received by the respondent on 8 May 2001.
Mr Levingston read his affidavit sworn 17 September 2001 filed in the proceeding (Exhibit A1). Attached to it were copies of a number of documents that the respondent had provided as a result of Mr Levingston's application under the Freedom of Information Act1982 in respect of the applicant's daughter Fang-Yi Su (referred to in that application as Angel Fang-Yi Su). The documents included a copy of an Application for grant of Australian citizenship in the name of Angel Fang-Yi Su, which was lodged on or about 5 February 2001 with the Department at its office in Sydney. The citizenship application form gave Angel Fang-Yi Su's current residential address as unit 90, 289-295 Sussex Street, Sydney.
Also attached to Mr Levingston's affidavit were copies of a number of internal email messages about the citizenship application. The messages passed between a number of the respondent's Departmental officers in Sydney and Canberra. The first such message was sent on 21 February 2001, apparently by an officer dealing with citizenship matters, to an officer in the business visas area. The email linked Angel Fang-Yi Su's application for citizenship with her class 127 business skills visa; it reads:
Subject: business migrants that have applied for citizenship visa class 127,128.
Miss Angel Fang-Yi Dob 300780 Taipei, China Visa class 127 migrated 150498/558079713s
…
As requested latest group of Citizenship Applications awaiting your follow up, It would be very much appreciated if you can advise on cases asap.
…

Subsequently, on 3 April 2001 there was a reply which stated:

Subject: Citz App for Miss Angel Fang-Yi, aka Fang-Yi SU
Re: above application, and your referral on 21 February 2001. PA IS Chueh Lien-Ho SU. A Notice of Intention to Cancel was sent to PA on 20 March 2001.
I will advise whether or not PA is cancelled.

On 5 April 2001 the officer in the business skills area sent another email:

Subject: Citz referral for Miss Angel Fang-Yi
PA is Ms Su Chen Chang.
There currently appears to be grouds for cancellation of the business skills visa under s134 of the Migration Act 1958.
I will provide an update when a decision is made.

The officer dealing with the citizenship application sought an update on 25 May 2001 about Angel Fang-Yi Su's business visa and on 28 May 2001 she was informed that the applicant and her family had been issued with notices of intention to cancel their business visas. The email stated that the notices "… have been returned to sender, you may like to advise client to have her father contact this office to supply current address, however it should be noted that response date has passed and a decision may be made at any time before 23 July 2001)." An email on 3 June 2001 to the officer handling the citizenship application asked her not to proceed with Angel Fang-Yi Su's application until further notice from the business skills section, as notices of intention to cancel the business visas had been issued on 20 March 2001.
submissions
Mr Levingston submitted that the applicant's case would rise or fall on the application of s.134(9) of the Act and rr. 5.02A and 5.03 of the Migration Regulations 1994.
The regulations read as follows:
5.02A Service of documents — cancellation, or proposed cancellation, of visa
(1) This regulation applies to a document relating to:
(a) the proposed cancellation of a visa under the Act that is to be given to the holder of the visa; or
(b) the cancellation of a visa under the Act that is to be given to the former holder of the visa.
(2) For the Act and these regulations, a document must be given to the person who is the holder, or former holder, of the visa:
(a) by giving it to the person personally; or
(b) by sending it to the person's residential or business address last known to the Minister; or
(c) if the person is in immigration detention — in the manner mentioned in regulation 5.02.
5.03 Time of receipt of document etc that is sent
(1A) This regulation applies to a document sent by the Minister or a Tribunal to a person in that person's capacity as:
(a) an applicant, of any kind, under the Act or these regulations; or
(b) the holder, or the former holder, of a visa; or
(c) a person who is invited in writing by a Tribunal to give information or comments to the Tribunal.
(1) For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either:
(a) if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document; or
(b) if the document is sent from:
(i) a place outside Australia to an address in Australia; or
(ii) a place in Australia to an address outside Australia; or
(iii) a place outside Australia to an address outside Australia;
21 days after the date of the document.
(2) Subregulation (1) does not apply to a document unless it is sent within 3 days after the date of the document.

Mr Levingston accepted that r. 5.03 in its current form, having been amended by schedule 2 to the Migration Amendment Regulations 2000 (No.3), is valid, a concession properly made in light of Sackville J's judgment in Al Adwan v Minister for Immigration and Multicultural Affairs [2001] FCA 706.

Mr Levingston noted the mandatory language of s.134(9) of the Act:
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 … (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.

It was not in dispute that the applicant was out of Australia when she was granted the visa. Accordingly, the notice of intention to cancel the visa had to be given within three years of her first entering Australia after the visa was granted. That period expired on 15 April 2001.

Regulation 5.02A(2) contains three alternative methods for the giving of notices. One of the methods was not relevant because it applies where the person to be served is in immigration detention. The respondent chose to send the notice to the applicant rather than give the notice to her in person. The notice was sent by registered post to the applicant at the Kent Street address
Mr Levingston submitted that the respondent's choice of method was implausible. Mr Levingston referred to the respondent's letter of 6 March 2000 enclosing a 24 month survey for the applicant to complete by 12 May 2000 (T70). The letter was sent to the Kent Street address. He noted that on 20 October 2000 the respondent sent a reminder letter about the 24 month survey stating that no response had yet been received. Again the letter was sent to the Kent Street address.
Mr Levingston submitted that from 12 May 2000 the respondent should have been aware that something was going wrong with communications that were being sent to the applicant. Mr Levingston submitted that it was implausible for the respondent on 20 March 2001 to send a notice, such as the notice of intention to cancel the visa, to the applicant at an address where previous notices had gone unanswered. In his submission, the respondent's officers should have been more diligent and investigated why the applicant was not replying to letters sent to her at the Kent Street address and should have considered sending future notifications to her business address, an alternative accommodated in reg. 5.02A(2). Mr Levingston referred to the applicant's form 47 application for business skills visa, which provided a contact address, being that of the Australia-Taiwan Development Co. Ltd. in Taipei (T22).
Mr Levingston also submitted that it should be inferred from the intra Departmental email message of 21 February 2001 (Exhibit A1) that the respondent was then aware that one of the visa holders, Angel Fang-Yi Su, had provided the respondent with a different residential address to that which the applicant had provided on 16 April 1998 in her Notification of Address (T68). In Mr Levingston's submission, had the notice of intention to cancel Angel Fang-Yi Su's business visa been sent to her at the new address in Sussex Street, Sydney, the bad news about the proposed cancellation would have been quickly passed on the other family members, who could have made appropriate representations to the respondent about the intended cancellation.
Finally, Mr Levingston submitted that the respondent had an overarching responsibility to act in good faith when choosing a method of service. To support this submission, he relied on the following passage about r. 35 of the Migration Regulations 1989 in the judgment of Olney J in Rodwell v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 195:
In the absence of any internal indication as to how the choice is to be made it would seem that the regulation has to be given effect to in accordance with its terms. It may be that the only gloss that can be implied is that the choice should be made in good faith, but in this case the facts do not support any suggestion other than that the method of service was appropriate even though it was known at the time that it was likely that the notice would not reach the applicant.

Mr Levingston readily conceded that the paragraph immediately following in his Honour's judgment ran counter to the submission:

There are strong policy reasons for applying a strict construction to regulations of this type. The department is at an extreme disadvantage in dealing with large numbers of applicants upon whose good faith it must rely to keep its records of their whereabouts current. There is of course, in many cases, a great incentive for an illegal entrant to refrain from being completely frank with the department, given the enormous difficulty associated with locating those who simply merge into the general community. Although there may be occasions when strict reliance upon the regulations could be regarded as harsh, the policy of the regulations is clear enough. They have been drafted to meet a particular purpose and must be given effect to in accordance with their terms.

Nevertheless Mr Levingston argued that, in these circumstances, the respondent was not entitled to sit on his hands but should have pursued either an alternative method of service or, after 12 May 2000, have sent notices to the applicant's business address. Mr Levingston submitted that it should be inferred from the respondent's knowledge of the correspondence sent to the Kent Street address having gone unanswered and of the change in Angel Fang-Yi Su's residential address, that the respondent failed to act in good faith by choosing to send the notices of intention to cancel the visa to the Kent Street address. He submitted that the respondent showed a reckless indifference to the applicant's receipt of the notice regarding intended cancellation.

Ms Goodman submitted that the Kent Street address was the applicant's address last known to the respondent, it being the address specified in the notification of address form dated 16 April 1998 that the applicant had given to the respondent (T68). The intra Departmental email of 28 May 2001 demonstrated in Ms Goodman's submission, that at 20 March 2001 when the cancellation notices were sent, the respondent did not know that the applicant was no longer at the Kent Street address and therefore the respondent did not act recklessly by sending the notices to that address. Ms Goodman referred to the Australia Post registered post lodgment document (Exhibit R1) which showed, she submitted, that the notices of intention to cancel the visas dated 20 March 2001, were sent on that day from the Australian Capital Territory. As the notices were sent within three days after the date of the notices, Ms Goodman submitted that r. 5.03 deems the applicant to have received her notice on 27 March 2001.
In addition, Ms Goodman submitted that it would be impractical for the respondent to have to make enquiries about the circumstances of people who do not respond to correspondence sent to their address last known to the respondent. She further submitted that sound administrative practice based on privacy considerations, militates against sending a notice to a person at an address known to be occupied by another member of the person's family.
consideration of issues
The Tribunal notes that this application has throughout been prepared on the basis that the applicant is arguing only one point: whether the notice of intended cancellation of her visa under s.135 was given to her within the three year period specified in s.134(9). The applicant's statement of facts and contentions dated 17 September 2001 filed by Mr Levingston states that the applicant "must be unsuccessful in the application for review" if the applicant's argument regarding s.134(9) is rejected. Mr Levingston conceded in opening that, since the applicant had spent nearly all of her time in Taiwan following the grant of the visa and had delegated management of her Australian business activities to a son, there was ground for cancellation.
The Tribunal is not bound by the applicant's concession, but instead must satisfy itself whether there are grounds for exercising the power to cancel the applicant's visa: R v Moodie and Others; ex parte Mithen (1977) 17 ALR 219.
Are there grounds for cancelling the visas?
The respondent's decision to cancel the applicant's visa was made in exercise of the power in s.134(1) which is found in Subdivision G – Cancellation of business visas, Migration Act 1958. The applicant failed to put forward any information that would demonstrate her compliance with the conditions in her visa. In brief, by reason of those conditions which were set out in the Declaration – Form 926 that she signed in April 1996, the applicant was obliged within three years of first arrival in Australia, to acquire a substantial interest in an eligible Australia business and to participate on a day to day basis in the senior management of that business, or to have made a genuine effort to do those two things.
Having regard to the lack of evidence before it, the Tribunal finds that the applicant has not obtained a substantial ownership interest in an eligible business in Australia (s.134(1)(a)) and that the applicant is not utilising her skills in actively participating at a senior level in the day to day management of such a business (s.134(1)(b)). There are grounds for cancelling the applicant's visa.
Section 134(2) directs the Minister not to cancel the visa if satisfied that the holder has made a genuine effort to obtain the relevant interest in an Australian business or to utilise her skills in day to day management of the business at a senior level. In considering whether the applicant has made a genuine effort, the Minister may take into account a number of matters that are set out in s.134(3) of the Act:
(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;
(c) research that the person has undertaken into the conduct of an eligible business in Australia;
(d) the period or periods during which the person has been present in Australia;
(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g) business activity that is, or has been, undertaken by the person;
(h) whether the person has failed to comply with a notice under section 137;
(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:
(i) the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii) the reasons why the person no longer holds the interest or participates in the management (as the case requires).
The applicant has provided no evidence of any business proposals, with or without partners, that she has developed nor of any research undertaken into the conduct of any business in Australia. Further, there was no evidence about any assets that the applicant has transferred to this country to enable her to acquire a business here. The Tribunal notes that prior to 13 June 2001, when the decision was made to cancel her visa, the applicant had spent only 20 days in Australia since the grant of her visa. The respondent sent 24 month and 36 month survey forms to the applicant in order to monitor her business activities in Australia (T70-72). The surveys are notices given by the respondent under s.137(1). Compliance with the surveys is mandatory: s.137(7). The applicant did not respond to any survey and so did not comply with s.137. Consequently, the Tribunal finds that the applicant has not made the genuine efforts referred to in s.134(2).
Has there been compliance with ss.134(9) and 135?
The Tribunal accepts the respondent's evidence that a written notice dated 20 March 2001, containing the information required by s.135, was sent by registered post on that day by the respondent in the Australian Capital Territory to the applicant at 44/533 Kent Street, Sydney. Sending documents through registered pre-paid post as an alternative to ordinary pre-paid mail, is a valid method of effecting service where service by sending documents is allowed under relevant legislation: Minister for Immigration and Multicultural Affairs v Singh (2000) 171 ALR 53. The Tribunal finds that the Kent Street address was the applicant's address last known to the respondent at the time the notice was sent. In Form 922 dated 16 April 1998 (T68), the applicant had informed the respondent of that address, which was identified as her "Current or contact address". The Tribunal finds that the applicant did not thereafter inform the respondent of a change to that address before the notice was sent on 20 March 2001. That Angel Fang-Yi Su, in her citizenship application lodged on 5 February 2001, gave a different residential address for herself, unit 90, 289-295 Sussex Street, Sydney, does not alter the fact that the Kent Street address remained the applicant's residential or business address last known to the respondent at the time notice of cancellation was given.
Was the respondent bound to act in good faith and to adopt some other method of giving notice to the applicant in circumstances where the respondent has not received a reply from her to earlier correspondence sent to the Kent Street address? Mr Levingston submitted that the respondent had four options: personal service; sending the notice to the applicant's Kent Street address; sending it to the Australian-Taiwan Development Co. Ltd. at the Taipei address that had been provided in the visa application form 47 (T22,35); or sending it to the Sussex Street address that Angel Fang-Yi Su had provided in her citizenship application (Exhibit A1). He further submitted that the respondent was not interested in contacting the applicant. In support of this argument he pointed to the respondent's failure to give evidence of diligent efforts having been made to try to contact her, either by telephone at the number given in the Notification of Address Form 922 (T68) or through notice sent to the Taipei or Sussex Street addresses. In this regard Mr Levingston referred to Rodwell's case and also relied on Rahman v Minister for Immigration and Multicultural Affairs and Another (1998) 51 ALD 316 at 325 where Einfeld J said:
In Rodwell at 197, Olney J thought that the choice of method for service must by implication be made in good faith. I respectfully agree. To choose a method of service that is known to be very unlikely to effect service when another method of service, required by practice and ethics if not by law, is almost certain to succeed frustrates the very purpose of the provisions for service and amounts to a breach of the implied duty to make the choice in good faith. In my opinion, the regulation should not be interpreted to allow the frustration of its very purpose by the giving of a mandatory notice to an address where it is or should be known that the person no longer lives. It cannot be within the Parliament's intention that a method of service can be chosen, at the whim or by the inadvertence or accident of the server, which would distinctly ensure that the document in question would not come to the receiver's attention, when one of the other prescribed methods would be much more likely to ensure that it did.
There are a number of relevant facts that distinguish the current application from Rahman's case. Briefly, in that case Mr Rahman applied for a refugee permit, after having been refused permanent residency on humanitarian grounds. Mr Rahman gave his address in the application for refugee status. A firm of solicitors acting for him had communicated with the Department on a number of occasions around the time of his making the application. The Department continued to send its notices to him at the address he had provided, even though notices were being returned because the applicant had left the address, and despite having an alternative point of contact through the solicitors.
Here, prior to 8 May 2001 the day on which the Tribunal finds that the notice of intention to cancel the applicant's visa was returned to sender, it was open to the respondent to draw a number of alternative inferences from the fact that its correspondence (T70, T71 and T72) sent to the applicant at the Kent Street address was unanswered: the applicant simply did not want to bother replying; the applicant did not know how to go about replying to the surveys; the applicant knew she was not complying with her visa's conditions and did not want to reveal this to the respondent; or the applicant had changed address. The Tribunal finds that, until the notice of intended cancellation was returned to sender on 8 May 2001, the respondent was not aware that its correspondence had not been coming to the applicant's attention. It is also relevant, by way of contrast with Rahman's case, that the applicant did not retain solicitors or other agents to represent her in dealings with the respondent during the period from the grant of her visa until its cancellation.
In relation to the suggestion that the respondent ought to have sent the notice to the Taipei address of Australia -Taiwan Development Co. Ltd, the Tribunal notes that such address was provided in April 1996 as an address for correspondence concerning the application for the visa. After the grant of the visa and upon arrival in Australia on 16 April 1998, the Tribunal finds that the applicant, in compliance with s.137(4) of the Act, completed a Form 922 (T68) informing the respondent that the Kent Street address was her 'current or contact address'. The Taipei address had been superseded. The Tribunal finds that the respondent recorded the Kent Street address and wrote to the applicant there on 1 May 1998, enclosing another Form 922 with a postage paid envelope in case she changed her address in the future (T69). It is reasonable, therefore, to send the notice of intended cancellation to the applicant at the Kent Street address, her address last known to the respondent. The Tribunal finds that the email traffic between Departmental officers, prior to the email of 28 May 2001, does not support an inference that the respondent should have known that the applicant no longer lived at the Kent Street address at the time that the notice of intended cancellation of visa dated 20 March 2001 was given to her. In addition, the Tribunal rejects the submission that the failure to send Angel Fang-Yi Su's notice to her at the Sussex Street address demonstrates a lack of good faith or indifference on the respondent's part to giving notice to the applicant or to the other secondary visa holders. As Olney J said in Rodwell's case about other regulations dealing with service of notices in immigration matters, "Although there may be occasions when strict reliance upon the regulations could be regarded as harsh, the policy of the regulations is clear enough. They have been drafted to meet a particular purpose and must be given effect to in accordance with their terms." There is no justification in this case for not giving effect to the regulations. For these reasons the Tribunal is satisfied that the respondent's sending the s.135 notice by registered post to the applicant at the Kent Street address to effect service in conformity with r. 5.02A, did not breach the implied duty to choose a method of service in good faith.

The Tribunal has found that the respondent sent the notice of intended cancellation of the applicant's visa, dated 20 March 2001, by registered post from the Australian Capital Territory on that day and that it was sent to the applicant at the Kent Street address. Accordingly, the condition in r. 5.03(2) that the document be sent within three days after the date of the document is satisfied. The effect of r. 5.03(1)(a) is that the notice is taken to have been received by the applicant within seven days of the notice's date, that is 27 March 2001. As the applicant received the notice within three years of 16 April 1998, the day on which she first entered Australia after the visa was granted, s.134(9) does not prevent cancellation of the visa.
Where a business visa such as the applicant's is cancelled, s.134(4) provides that the business visas held by members of the person's family unit will automatically be cancelled, except in certain circumstances. The family member's visa, which can be referred to as a 'secondary visa', is a business visa that the person holds only because he or she is a member of the family unit of the other person, the 'primary visa holder'. Secondary visas were granted to the applicant's spouse and her three children, two of whom Yi-An Su and Angel Fang-Yi Su were under 18 at the time the visas were granted, and to her older son Yi-Hsien Su who was a dependent child of the applicant's. A secondary visa is not to be cancelled if cancellation would result in extreme hardship to the holder: s.134(5). Mr Levingston said that the applicant and the secondary visa holders did not contend that cancellation would result in extreme hardship. No evidence of extreme hardship has been put before the Tribunal.
There can be no cancellation of secondary visas unless a written notice of intended cancellation, complying with s.135, has been given to each visa holder within the three year period required by s.134(9) thereby affording them the opportunity to make representations to the respondent about the impact that cancellation will have on them. The Tribunal finds that notices of intended cancellation were given to the secondary visa holders through the same method, registered post, and to the same address used for giving notice to the applicant. However, the respondent's officers, albeit those dealing with citizenship applications and not business visas, had been informed by Angel Fang-Yi Su that she had changed her address. Angel Fang-Yi Su lodged her application for citizenship on 5 February 2001. The Tribunal finds that on 20 March 2001, when the notices of intended cancellation were sent to the secondary visa holders, Angel Fang-Yi Su's address last known to the respondent was not the Kent Street address. The Tribunal is satisfied that, by sending the notice of intended cancellation of business visa through registered post to Angel Fang-Yi Su at the Kent Street address, the respondent failed to comply with r. 5.02A(2)(b). As there was no evidence before the Tribunal that the notice was given to Angel Fang-Yi Su personally within the required period, the Tribunal is satisfied that she has not been given a notice under s.135 within three years of her arrival in Australia on 15 April 1998, which is a mandatory requirement of s.134(9).
After taking the evidence into account, and noting in particular the applicant's failure to comply with the requirements of her business visa, the Tribunal decides that the discretionary power in s.134 of the Act should be exercised and the business visas of the applicant, her spouse Jan Ho and sons Yi-Hsien and Yi-An should be cancelled.
DECISION
For the reasons given above, the decision under review to cancel the applicant's business skills visa is affirmed; the decision to cancel the business skills visa of the applicant's husband Jan-Ho Su is affirmed; the decision to cancel the business skills visa of the applicant's son Yi-Hsien Su is affirmed; the decision to cancel the business skills visa of the applicant's son Yi-An Su is affirmed; and the decision to cancel the business skills visa of the applicant's daughter Fang-Yi Su is set aside.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P.J. Lindsay, Senior Member
Signed:           H. Sim           .....................................................................................
  Associate
Date of Hearing  8 March 2002
Date of Decision  3 May 2002
Solicitor for the Applicant         Mr C Levingston
Solicitor for the Respondent    Ms S Goodman