Wibisono and Minister for Immigration and Multicultural and Indig Enous Affairs

[2004] AATA 145

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 145

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/993

General DIVISION		)
Re		Guruh Wibisono

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Justice Garry Downes, President

Date12 February 2004

PlaceSydney

Decision The decision made on 21 May 2003 to cancel the business visa held by the applicant is affirmed.

...............................................

President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – cancellation of business visa – whether notice of intention to cancel was invalid because it specified a period of more than 28 days for the making of representations – consideration of effect of non-compliance with subsection 135(1) – whether 90 day period commences from 28th day or from date specified in the notice

Migration Act 1958 ss 134, 135

Re Prawiro and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1096

REASONS FOR DECISION

12 February 2004 Justice Garry Downes, President            

1. Section 134 of the Migration Act 1958 empowers the Minister for Immigration and Multicultural and Indigenous Affairs or his delegate to cancel business visas.  The power arises if the Minister is satisfied that the holder of the visa “has not obtained a substantial ownership interest in an eligible business in Australia” or “is not utilising his or her skills in actively participating at a senior level in the day to day management of that business” or “does not intend to continue to” satisfy either of these requirements (ss 134(1)). 

2. On 21 May 2003, a delegate of the Minister purported to cancel the applicant’s business visa pursuant to s 134 of the Act. Application was made to the Tribunal pursuant to s 136 of the Act for review of the cancellation decision.

3.      Subsection 135(1) of the Act requires the giving of a notice of proposal to cancel a business visa which invites the making of representations before the visa can be cancelled.  Subsection 134(9) of the Act requires the notice to have been given within three years of the grant of the visa or the holder’s later entry into Australia.

4. Section 135 is as follows:

(1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:

(a) stating that the Minister proposes to cancel the visa; and

(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:

(i) if the notice is given in Australia—28 days after the notice is given; or

(ii) if the notice is given outside Australia—70 days after the notice is given.

(2) The holder may make such representations to the Minister within the time specified in the notice.

(3) The Minister must give due consideration to any representations.

(4) If:

(a) the time specified in the notice ends after the end of the period referred to in subsection 134(9); and

(b) at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;

the Minister is not to proceed with the cancellation.

(5) If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.

5.      In the present case, “the time specified in the notice” (ss 135(2)) within which representations could be made was 29 days after the notice was given and not 28 days as required.  There are two questions for me to decide. First, does the specification of a time exceeding the prescribed time invalidate the notice? Secondly, if it does not, is the period of 90 days to be calculated by reference to the date inserted in the notice or the date one day earlier which should have been inserted in the notice?

6. If the notice is invalid or if it is valid, but the period of 90 days is to be calculated by reference to the correct date rather than the date inserted in the notice, then the visa cancellation is invalid. If the notice is invalid, the Minister has failed to comply with s 135. If the 90 day period is to be calculated by reference to the correct date, the cancellation is ineffective because the decision to cancel the visa was made the day after the 90 day period had ended and therefore outside the time limit provided for in ss 135(4). In either event, the visa could not now be cancelled because ss 134(9) precludes the Minister from cancelling a visa unless a notice under s 135 was given within three years from the visa coming into effect. That period has now expired.

7.      The same issues that arise here were present in an application determined by Member Allen last year (Prawiro v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1096). Member Allen decided that the notice was not invalid and the cancellation was effective. The parties before me have referred to that decision in their arguments. I have read the decision.

8.      The conclusion to which I have come is that Member Allen was right in Prawiro for the reasons he gave.  I can, accordingly, be brief.  I particularly agree with Member Allen that, applying Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388 to 391, no legislative purpose can be discerned that the giving of a notice permitting additional time for the making of representations should be invalid. Like Member Allen, I consider that the fact that ss 135(2) refers to “the time specified in the notice” rather than the statutory period and that ss 135(4) uses the same phrase assists in coming to this conclusion. In my opinion, the notice was valid.

9. I turn to the question of whether the 90 day period is to be calculated by reference to the time specified in the notice or the precise time of 28 days. Again, the fact that both ss 135(2) and ss 135(4) refer to the time specified in the notice demonstrates that that is the time to which reference must be made. That remains the time, even if it is given in error.

10.     In my opinion, the visa was cancelled within the required 90 day period.  No other argument why the cancellation decision should be set aside has been put before me.  Accordingly, the cancellation decision must be affirmed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Garry Downes, President

Signed:         .......................................................................................
           S. Toomey, Associate

Date of Hearing  12 February 2004
Date of Decision  12 February 2004
Representative for the Applicant      Robert McLeod

Solicitor for the Respondent              Andras Markus,

Australian Government Solicitor