Tanujaya and Ors and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 386
•16 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 386
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W2002/128 and
GENERAL ADMINISTRATIVE DIVISION ) W2003/350-353 Re SOEGIANTO TANUJAYA
INDRAWATY KUSUMA LIM
VICENSIA TANUJAYA
RINNY TANUJAYA
TONY TANUJAYAApplicants
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr Murray Allen, Member Date16 April 2004
PlacePerth
Decision The decision of the Tribunal is that the decisions made by a delegate of the respondent on 26 March 2002 to cancel the business skills visas held by the applicants is set aside. The visas remain valid and effective. …...........(sgd M Allen)....................
Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – cancellation of business visas – notices of intention to cancel sent to address provided at time of application for visas as a contact address only – not a residential address known to respondent or provided to respondent for the purposes of receiving documents – notices not given as required by the Act or the Regulations – notices sent to mother on behalf of dependent visa holders – conclusion that Act requires individual notification to each visa holder – power to cancel visas did not arise – decisions to cancel visas set aside
Migration Act 1958 ss 134, 135, 494A, 494B
Migration Regulations 1994 reg 2.55
Re Bhyat and Minister for Immigration and MIMIA [2003] AATA 1051
Re Eng and MIMIA [2004] AATA 76
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490
VEAN v MIMIA [2003] FCA 280
REASONS FOR DECISION
16 April 2004 Mr Murray Allen, Member 1. On 26 March 2002 a delegate of the respondent Minister made decisions to cancel the sub-class 127 business skills visas held by Mr Soegianto Tanujaya (“Mr Tanujaya”) and those held by the other applicants – who are his wife, Indrawaty Kusuma Lim (“Ms Lim”,) and their three children, Vicensia Tanujaya (“Vicensia”), Rinny Tanujaya (“Rinny”), and Tony Tanujaya (“Tony”). Initially, in proceedings number W2002/128, only Mr Tanujaya sought review of the decision in relation to his visa. However, at the hearing and with the consent of the respondent, I granted an extension of time to the other four applicants to file applications for review of the cancellation decisions concerning their visas. Consequently, the present proceedings involve a review of the cancellation decisions made in respect of the visas held by all the family members.
2. At the hearing Mr Tanujaya represented himself with the assistance of his nephew, Mr Benny Lau, and the respondent was represented by Mr Blades, a solicitor with the Australian Government Solicitor. The Tribunal received into evidence the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act, 1975 (T1 – T33 and ST1 – ST3). The Tribunal also received into evidence documents tendered by the applicants (A1 and attachments A1.1 – A1.27, A2 and attachments A2.1 – 2.5, A3 and attachments A3.1 – A3.5, A4 and A5) and by the respondent (R1 and R2).
3. Oral evidence on behalf of the applicants was given by Mr Tanujaya, Ms Lim, Mr Sumanpo Lau, Mr Chandra Wijaya and Mr Benny Lau. Mr Tanujaya and Ms Lim gave their evidence in the Indonesian language with the assistance of an interpreter.
4. The background to the matter is that Mr Tanujaya applied for a business skills visa in 1997 on behalf of himself and his family members and visas were issued to all the applicants on 2 March 1999. All the family members first arrived in Australia pursuant to the visas on 20 May 1999.
5. By two letters dated 19 November 2001 addressed to Mr Tanujaya and to Ms Lim, the respondent’s Department notified the intention to cancel the visas issued to all family members. Those letters were not received by Mr Tanujaya or Ms Lim and were returned to the Department unclaimed on 27 November 2001.
6. In March 2002 contact was made with the family and Mr Tanujaya provided information concerning why the visas should not be cancelled. However, on 26 March 2002 the respondent’s delegate cancelled Mr Tanujaya’s visa under s 134 (1) of the Migration Act, 1958 (“the Act”) and the visas held by the other family members under s 134(4) of the Act.
The Preliminary Issues
7. During the hearing two preliminary issues were identified and both parties were invited to make written submissions in respect of them. Both parties did subsequently make submissions and it is appropriate to consider those issues prior to examining the merits of the cancellation decisions.
8. The first preliminary issue is whether the notices of intention to cancel were “given” in accordance with the Act and the Migration Regulations 1995 (“the Regulations”) – specifically whether they had been sent to the correct address.
9. The second preliminary issue is whether, even if proper notice had been given to Mr Tanujaya and Ms Lim, proper notice had been given to the three children in that they had not been sent individual notices of intention to cancel their visas.
10. Sub-sections 134(1) and 134(2) of the Act provide that the business visa held by a person such as Mr Tanujaya may be cancelled if the holder fails to satisfy any one of the three matters specified in s 134(1), but the visa must not be cancelled if the person has made genuine efforts to do all of the things specified in s 134(2). If the visa held by a person such as Mr Tanujaya is cancelled under s 134(1) then, subject to certain requirements, s 134(4) requires the cancellation of business visas held by other persons who are members of the family unit of that person – unless to do so would result in extreme hardship to those members of the family unit.
11. Before a visa can be cancelled under s134(1) or s134(4) certain requirements regarding the giving of notice must be satisfied. Relevantly, sections 134 and 135 of the Act provide as follows:
“Section 134 Cancellation of Business Visas
…
(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) … ; 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), … 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.
...”
12. The first preliminary issue identified at [8] above requires consideration of the provisions of the Act and the Regulations that deal with how notices are to be given and the times at which those notices are taken to have been received.
13. Section 494A of the Act (which came into effect in August 2001) is headed “Giving documents by Minister where no requirement to do so by s 494B method” and provides that:
“If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).”
14. Section 494B is headed “Methods by which Minister gives documents to a person” and relevantly provides that:
“(1) For the purposes of provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient ); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.”
The section goes on to say that one of the permitted methods is to dispatch the document by pre-paid post within 3 working days of the date of the document to “the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents”.
15. Regulation 2.55 of the Regulations (which also came into effect in August 2001) applies to “the giving of a document to a holder ... of a visa relating to the proposed cancellation ... of a visa under the Act.” Regulation 2.55(3) provides that, for such a document, “the Minister must give the document in one of the following ways”, one of which is the despatch by pre-paid post or other pre-paid means “to the person’s last residential address, business address or post box address known to the Minister”.
16. Against that statutory background the evidence concerning the information available to the Department concerning addresses for the family in Australia was not significantly in dispute and the following findings of fact can be made.
17. In the initial application made by Mr Tanujaya for the visas he disclosed that he intended to live in Western Australia but that all correspondence regarding his application should be addressed to his address in Indonesia. (T47) One of the documents that Mr Tanujaya signed in the course of making his application was a declaration (Form 926, included in the T documents at page 273) in which he declared that he would notify the Department of a residential address within 28 days of his first entry to Australia and that for 3 years thereafter he would notify the Department of any subsequent changes to that residential address within 28 days after a change.
18. In February 1999 when Mr Tanujaya was informed by letter (T20) that his application was likely to be successful, he was asked to complete and return a Health Undertaking (Form 815) and a Settlement Assistance Information Form (Form 886). He did so in February 1999 and a copy of the Form 815 is T22. Part of that form contains the following:
“I can be contacted in Australia at:
Give full residential address, including post code and telephone number where possible. If you do not know what your address in Australia will be, you must give the name and address of a person in Australia who will know how to contact you (for example, a relative, a friend, your employer or a staff member at your proposed study institution). You will not be granted a visa without this information.”
In that part of the form Mr Tanujaya provided an address in Booragoon, Western Australia and a telephone number. The address and telephone number were those of Ms Lim’s sister, although no name of any person is mentioned.
19. No copy of the Form 886 has been retained by either Mr Tanujaya or the Department. The respondent’s submissions state that Mr Tanujaya did return the form and that the details provided therein included a contact address in Australia. According to the submissions the contact details provided were recorded by the Department in what is known as a “Settlement Database” and that “in accordance with usual practice” the form itself was disposed of after the information was recorded on the database. T25 is a print out of what is shown in respect of Mr Tanujaya on that database and indicates that it was created on 8 March 1999 and updated on 21 May 1999 (the day after Mr Tanujaya and his family first arrived in Australia under the visas). The printout reveals that part of the data recorded is what is described as a “contact address”. The name of Ms Lim’s sister is recorded as a contact name and the address is the same as that provided in Booragoon in the Form 815 referred to above. The telephone number that was provided in the Form 815 was not included.
20. No information was provided at the hearing as to the types of question asked in the Form 886 or any statements within the form concerning the purpose for which the information was gathered. However, in the letter to Mr Tanujaya from the Embassy in Jakarta in February 1999 (T20) the following statement appears in relation to the Form 886:
“Please return the completed form with your passport when you submit it to this office. It is very important that we receive the completed form. The information is collected to assist in planning better services such as health and education for newly arrived migrants.”
It would appear that the name of Ms Lim’s sister must have been included in the Form 886 and that that was the means by which the Department became aware of her name.
21. In early 2001 Ms Lim’s sister and her family moved from the Booragoon address to an address in East Perth. Ms Lim’s nephew, Mr Benny Lau, gave evidence (which I accept) that the house in Booragoon had been vacated in early 2001 and sold. He had visited the house on a few occasions thereafter looking for mail, but found no letters. The buyer of the house was a person who was from Taiwan and did not live in the house all the time.
22. In early May 2001 the Department was proposing to send Mr Tanujaya a 24 month survey form and appears to have consulted the Settlement Database in order to obtain an address for that purpose. On 3 May 2001 an officer of the Department made an entry in a computer record known as “File Notes” (Annexure B2 to the respondent’s written submissions) that “Address found using Settlement Database, entered as an IAA”. The initials “IAA” appear to mean ‘Initial Address Advice’ and Annexure B1 to the respondent’s submissions (which is a printout of another database maintained by the Department) shows that on 3 May 2001 an event described as “Initial Address Advice received” was processed by entry onto that computer system.
23. By letter dated 21 May 2001 the 24 month survey form was posted to Mr Tanujaya, addressed to him care of his sister-in-law (who was named) at the Booragoon address. The undisputed evidence was that Mr Tanujaya never received that letter but there is no evidence as to whether it was delivered to the house in Booragoon or returned to the Department undelivered. In any event, no response was received by the Department at that time.
24. On 19 November 2001 the Department sent notices of intention to cancel the visas by letters of that date addressed to Mr Tanujaya and Ms Lim. Again, both letters were addressed care of Ms Lim’s sister at the Booragoon address. Because these letters were sent by registered mail there is evidence (T documents at page 577 and R2) that both letters were returned to the Department on 21 November 2001, although there is nothing on those documents to indicate the reason for the inability to deliver. The notices of intention to cancel invited submissions on why the visas should not be cancelled by 26 December 2001.
25. I pause at this point to note that, after the initial entry on 20 May 1999, Mr Tanujaya entered Australia only once in the period up until the end of 2001, namely, on 11 December 2001 when, on an incoming passenger card (PAX card) he disclosed his intended address in Australia would be the address in East Perth of Ms Lim’s sister. In that same period Ms Lim entered Australia on at least a further 7 occasions. The only PAX card available to me is in respect of Ms Lim’s arrival in Australia on 21 October 2001, that being the last arrival prior to the despatch of the notices of intention to cancel the visas. On the PAX card for that arrival Ms Lim also disclosed the address of her sister in East Perth as her intended address in Australia (Annexure C to the respondent’s written submissions).
26. In January 2002 Ms Lim’s nephew, Mr Benny Lau, contacted the Department on behalf of Mr Tanujaya and asked for a 24 month survey form to be sent to the East Perth address. That was done and on 21 February 2002 the completed survey form was received back by the Department. That form disclosed a new contact address for Mr Tanujaya in Australia, namely the East Perth address. At the same time the Department received from Mr Tanujaya a notification of change of address form which also stated that the address at East Perth was effective from 12 December 2001.
27. On 4 March 2002 an officer of the Department telephoned the number shown on the 24 month survey form and the change of address form, and spoke to Mr Lau. An email address was obtained from Mr Lau (which was that of Mr Lau himself) and on that same day an officer sent an email to that address addressed to Mr Tanujaya (T30). The email was headed “Re Notice of intention to cancel your business skills visa” and referred to receipt of the 24 month survey and change of address forms. It went on to say that on 19 November 2001 a notice of intention to cancel had been sent to “your last known address” and that, because Mr Tanujaya had not provided details of addresses or change of addresses as he had undertaken to do, the Department had not been able to monitor his business activities and the notice of intention to cancel had been sent to the last known address “located by the Department”. The email invited Mr Tanujaya to make representations and provide documentary evidence regarding his business activities by 25 March 2002.
28. Mr Tanujaya responded to that email by letter dated 12 March 2002 that was received by the Department the next day.
29. According to the respondent’s written submissions, on 4 March 2002 the departmental officer had also tried to call Mr Tanujaya at his home in Indonesia on a number provided by Mr Lau, but she was not able to get a response from anybody in the household. No oral evidence was provided by the respondent to that effect, and the file note made by an officer on 4 March refers only to phoning the number of the house in East Perth and speaking to Mr Tanujaya’s nephew, and obtaining Mr Tanujaya’s email address (Annexure B2 to the respondent’s written submission).
30. Against that factual background it was submitted by the respondent that the interaction of Reg 2.55 and ss 494A, 494B and 494C of the Act is such that the Minister may give notice of the proposed visa cancellation by any of the methods prescribed in s 494B; any of the methods prescribed in Reg 2.55; or any other method that the Minister considers “appropriate” for giving documents.
31. It was submitted for the respondent that the despatch of the notices of intention to cancel to the Booragoon address satisfied the requirements of s 494B(4)(c)(ii) because that was the residential address of Ms Lim’s sister that had been provided in the Form 815 and which was recorded in the Settlement Database based on what had been supplied by Mr Tanujaya in the Form 886. It was submitted that there was no obligation to consult PAX cards completed by Ms Lim in 2001 and 2002 to find an updated address because the addresses on the PAX cards were not addresses provided for the purposes of receiving documents under s 494B.
32. For the applicant it was submitted that the Booragoon address was not a residential or business address provided to the Minister for the purpose of receiving documents within the terms of s 494B(4)(c)(ii). Because Mr Tanujaya was overseas the Department should have posted the notice of intention to cancel to his overseas address, which had not changed since he first applied for his visa.
33. In my reasons for decision in the matters of Re Bhyat and MIMIA [2003] AATA 1051 and Re Eng and MIMIA [2004] AATA 76 I observed that the interrelationship between Reg 2.55 and the sections of the Act referred to above is by no means clear and that I favoured an interpretation that the Minister is, in relation to notices of intention to cancel under ss 134 and 135, required to give such a notice in accordance with Reg 2.55. In neither of those cases was it necessary to reach a concluded view about the point. In Re Eng I considered that the notices of intention to cancel that had been given in that case did not comply with either Reg 2.55 or the provisions of s 494A or 494B.
34. In the present case the notices of intention to cancel that were despatched in November 2001 were sent by pre-paid post and it is not contended that they were sent to the last business address or post box address known to the Minister (as permitted by Reg 2.55) or the last business address provided to the Minister by the recipient for the purposes of receiving documents (as provided by s 494B). Leaving aside for the moment what might be considered to be an “appropriate” method of giving a notice under s 135, what is in dispute in this preliminary issue is whether the address to which the notices were sent was the “last residential address known to the Minister” (for the purposes of Reg 2.55) or the “last residential address provided to the Minister by the recipient for the purposes of receiving documents” (for the purposes of s 494B.
35. At the time that the notices were to be despatched in November 2001, the Department had an address for Mr Tanujaya and his family in Jakarta that had been provided in the original visa application and which, it was not in dispute, had never changed. On the evidence before me the only thing the Department knew about the Booragoon address was that it had been given in the Form 815 as a contact address for the purposes of a health undertaking at the time of the visa application. It appears to have been recorded in the Settlement Database as a contact address, rather than as a residential address of Mr Tanujaya and his family. The departmental officer who on 3 November 2001 chose to record that contact address as an “initial address advice” did not, in my opinion, have any basis upon which to do so.
36. The Department must also be taken to know that Mr Tanujaya had not been in Australia since his departure on 27 May 1999 (T33) and that Ms Lim had arrived in Australia on 21 October 2001 and nominated the East Perth address. Although I agree with the respondent’s submission that addresses provided on PAX cards are not addresses provided for the purpose of receiving documents under s 494B, I consider that it is equally true that the address provided in the Form 815 and, apparently, in the Form 886 was likewise not an address provided for that purpose, nor was it advice of a residential address.
37. Although Mr Tanujaya may have been at fault in not providing a residential address in Australia to the Department in accordance with his undertaking at the time of applying for a visa, I do not consider that it can be said that the Department had any reason to believe in November 2001 that it was in possession of a residential address for Mr Tanujaya and his family other than the address in Jakarta. The most that, in my opinion, can be said about the Booragoon address is that it was provided as a means for the Department to make contact with Mr Tanujaya. It was neither a residential address nor an address for the purpose of receiving documents. There was no basis upon which it could be said, in my opinion, that it was a residential address known to the Department as a residential address, or a residential address provided for the purpose of receiving documents.
38. Accordingly, in my opinion, despatch of the notices of intention to cancel to the Booragoon address in November 2001 could not be said to satisfy the requirements of either Reg 2.55 or s 494B.
39. The leaves the question of whether it can be said that the notices were sent to an “appropriate” address for the purposes of s 494A. Although there is evidence that officers of the Department considered and made enquiries about an address in May 2001 for the purpose of the 24 month survey, there is no evidence that any person in the Department put their mind to the appropriateness or otherwise of the Booragoon address in November 2001. In view of the facts that the Department knew of the Jakarta address, knew or should be taken to know of the East Perth address from Ms Lim’s PAX card, knew that the Booragoon address had failed to elicit a response to the 24 month survey document, and knew that Mr Tanujaya had not been in Australia since May 1999, I consider that the Booragoon address could not be seen as an appropriate address in November 2001. It would have been open to the Department to have contacted Mr Tanujaya at the Jakarta address to obtain a reliable address in Australia, or, as contemplated by s 135(1)(b)(ii) of the Act, despatch the notice of intention to cancel to the Jakarta address.
40. Accordingly, I conclude that the s 135 notices addressed to Mr Tanujaya and Ms Lim were not given in any of the ways permitted by Reg 2.55 or s 494B, nor were they given in an appropriate way for the purposes of s 494A. The notices were not, therefore, given as required by s 134(9) and s 135(1) of the Act and as a result the power to cancel the visas of Mr Tanujaya and the members of his family unit pursuant to ss 134(1) or 134(4) did not arise. It is not, therefore, necessary to consider the merits of the cancellation decisions.
41. Having arrived at the conclusion set out in the previous paragraph, it is also not necessary to consider the second preliminary issue that is identified at paragraph 9 above. However, I have considered the issue and it is appropriate that I set out my thoughts on it.
42. As has been seen above the notices of intention to cancel that were despatched in November 2001, although never actually received by the addressees, were despatched only to Mr Tanujaya and Ms Lim.
43. It was submitted on behalf of Vicensia, Rinny and Tony (who, in November 2001, were aged 14, 11 and 7 years of age respectively) that the cancellation decisions made in respect of their visas were legally ineffective because no notice of intention to cancel had been sent to them personally. It was contended that sections 134 and 135 of the Act require the notice of intention to cancel to be given to each visa holder individually and that they should have received individual notification rather than indirect notification via their mother. The failure to comply with that requirement would mean that the decision to cancel the visas of the three children was invalid for that reason.
44. For the respondent it was contended that there is no obligation on the respondent to send separate notices of intention to cancel to each of the children, because they were minors in the care and custody of Mr Tanujaya and Ms Lim and the visa application form submitted by Mr Tanujaya and Ms Lim stated that the three children would be migrating with them. Accordingly, it was proper for the Department to correspond with the children regarding the intended cancellation of their visas through their mother.
45. The letter to Ms Lim (part of Exhibit R2) advised her that there may be grounds for cancelling her visa and those of the three children because they were family members of Mr Tanujaya, whose visa was then under notice of intention to cancel. The letter went on to say that “the [Act] gives you the opportunity to comment on these grounds for cancellation and to give reasons why your visa should not be cancelled. You should now provide this office with a written answer as to why your visa should not be cancelled. Your answer should provide details of any extreme hardship you and the other visa holders might suffer if your visa were cancelled. You must provide your response, together with any documentation you would like considered in support of your claims by 26 December 2001. 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”.
46. It can be seen from the parts of sections 134 and 135 quoted above that in relation to the giving of notices of intention to cancel visas the requirements are in mandatory terms. Under s 134(9) the Minister “must not” cancel a visa unless a notice under s 135 was given “to its holder” within the specified period. Section 135(1) provides that before cancelling a visa under s 134(4) the Minister “must give its holder” a written notice specifying certain items. In the present case it is not in dispute that Vicensia, Rinny and Tony were holders of a visa and that separate notices of intention to cancel were not given to them. The question that arises for determination in this preliminary issue is what is the consequence of such non-compliance?
47. In Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 the High Court (per McHugh, Gummow, Kirby and Hayne JJ) at [90] observed that:
“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”.
48. The Court approved of the criticism of the “elusive distinction between directory and mandatory requirements” and concluded that “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”.
49. The reasons why the Act requires a person whose visa may be cancelled to be given notice of the proposed cancellation are obvious. The cancellation of a visa may have drastic consequences for the visa holder and the Act reflects a very clear acceptance of the principle that the visa holder should be given a reasonable opportunity to make representations concerning why the visa should not be cancelled, and that the eventual decision maker must take those representations into account when making the final decision. It would be surprising if the Act did not contain notification provisions of the kind referred to above – which reflect a basic degree of procedural fairness.
50. I agree with the submissions made for the applicants that the Act does not distinguish between adult and minor visa holders. There are good reasons why it should not do so. A business visa holder will often have dependent family members who may be adults, mature teenagers, younger teenagers, or children who have not yet entered their teens. Experience of cases such as the present in this Tribunal shows that business skills visa holders who are the “head” of the family unit will often spend considerable periods of time overseas and children, particularly (but not only) teenage children, will often spend many years studying in this country, often living more or less independently. The position of each visa holder (adult or minor) must be considered separately in terms of whether or not the person would suffer extreme hardship if that person’s visa were to be cancelled.
51. It is not difficult to identify circumstances where the personal and other interests of various members of a family unit may not necessarily coincide. One family member (regardless of age) may be able to make out a strong case that extreme hardship would result from the cancellation of his or her visa when another visa holder may have a less strong case. Alternatively, and the present case is an example, legal issues regarding the existence of the power to cancel may arise that relate differently to the various visa holders.
52. Although such differences may arise, and may or may not be recognised by the persons concerned, a parent may be reluctant to put them forward because he or she may not be able to bear the idea of breaking up the family unit or being separated from the child. This may be for financial or emotional or other reasons.
53. In the present case the only notification in relation to the intended cancellation of the three children’s visas was given by the Department to Ms Lim – in terms, as set out in [45] above, that emphasised that she was being given an opportunity to make submissions about why her visa should not be cancelled, or the extreme hardship she and the children might suffer if her visa was cancelled (as opposed to their visas). In my opinion that form of notification carries a real risk of misleading the parent who receives it into concluding that separate submissions could not be made on behalf of each individual visa holder and that separate consideration would not be given by the decision-maker to each individual’s position. That is, in my opinion, a risk that the particular provisions of the Act were intended to avoid, by requiring notice of intention to cancel to be given to each visa holder – regardless of age or state of dependency on the principal visa holder.
54. In my opinion the precise and mandatory terms of the relevant provisions of the Act reinforce the notion that each visa holder should be separately notified of the proposed cancellation and specifically invited individually to make representations concerning that possibility. I am aware from other cases before this Tribunal that this is the course that is sometimes adopted by the Department, including where the family members are not adults in the legal sense. In this context I note that the Department’s Migration Series Instruction regarding visa cancellation (MSI-133) states (in clause 9.3) that “if the other visa holders are adults or if the residential address of the other visa holders is different from that of the primary business visa holder, a separate notice of intention to cancel must be sent to each visa holder.” Such a view recognises that in some circumstances individual notification is required. The Act, in my opinion, does not permit a distinction to be made on the basis of age, residential address or degree of dependency.
55. To interpret the relevant parts of ss 134 and 135 as requiring individual notification to all visa holders is not, in my opinion, to permit considerations of form to prevail over substance – which, as Weinberg J observed in VEAN v MIMIA [2003] FCA 280 at [33] is not appropriate. That was a case involving the issue of whether a letter of notification of a decision had been properly addressed. In the present case I consider that the issues at stake are of real substance and go to the heart of a fair process.
56. In the circumstances I consider that the absence of individual notification to each of Vicensia, Rinny and Tony as required by ss 134 and 135 has the consequence that no notice of intention to cancel has been validly given to them and the failure to give such notices means that no power arises to cancel the visas held by them, regardless of whether or not the notices despatched to Mr Tanujaya and Ms Lim were invalid for the reasons I have given above.
57. My decision is, therefore, that the decisions made by a delegate of the respondent on 26 March 2002 to cancel the business visas held by the applicants is set aside. The visas remain valid and effective.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Murray Allen, Member
Signed: ...................(sgd V Wong).............................
AssociateDate/s of Hearing 10 June, 15-16 September 2003
Date of Submissions: 8 and 21 October 2003
Date of Decision 16 April 2004
Counsel for the Applicant Self represented, assisted by Mr Benny Lau
Counsel for the Respondent Mr David Blades
Solicitor for the Respondent Australian Government Solicitor.
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