Yeung and Minister for Immigration and Multicultural and Indigeno Us Affairs

[2003] AATA 504

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 504

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2003/276

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Siu Chun Yeung

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date14 April 2003

PlaceSydney

Decision The Tribunal denies the Applicant’s application for an extension of time.

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

RP Handley
  Deputy President 

CATCHWORDS

IMMIGRATION – Business Skills Visa – application for extension of time for lodging application for review – cancellation of business skills visa – examination of the history of the notification of the Department’s decision – whether the Applicant had failed to comply with visa requirements as to his business interests in Australia – whether the Applicant had a “substantial ownership interest” of a business in Australia – held that the application lacked merit – extension of time denied.

Migration Act 1958 ss 494B(4), 494C(4)

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Brown v Federal Commissioner of Taxation (1999) 42 ATR 118

REASONS FOR DECISION

14 April 2003 Mr RP Handley, Deputy President          

1. This is an application by Siu Chun Yeung (“the Applicant”) made on 20 February 2003 pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 for an extension of time for lodging an application with the Tribunal for a review of a decision to cancel Mr Yeung's Business Skills visa and the visas of his wife and son, made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Respondent”) on 20 March 2002.

2.      At the hearing, the Applicant was represented by Ian Latham, of Counsel, and the Respondent was represented by Johanna Selth, Solicitor, of the Australian Government Solicitor's office.  Both representatives made oral and written submissions. 

3. By letter dated 19 November 2001, the Department notified Mr Yeung of its intention to cancel his Business Skills visa under s 134 of the Migration Act 1958 (“the Act”) and invited him to comment on this.  This letter was sent to the address last notified by Mr Yeung at Unit 7, 54 Christie Street, St Leonards, New South Wales 2065.   By letter dated 15 December 2001,  Mr Yeung notified the Department of a change of address to Unit 7, 49 Lithgow Street, St Leonards, New South Wales 2065, and made submissions and provided additional documents in response to the Department's invitation. 

4.      By letters dated 20 March 2002, addressed to Mr Yeung, his wife and his son at Unit 7, 49 Lithgow Street, St Leonards, a delegate of the Respondent gave notice of the cancellation of their visas.  These letters were sent by registered post.  Notes made on the envelopes indicate that delivery was attempted on 27 March 2002 and 9 April 2002 but was unsuccessful.  As a result, the letters were returned to the sender on 16 April 2002.

5.      In an Affidavit dated 14 May 2003, Mr Yeung's son, Chau Yeung, who is a student, states that he and his wife were living at the Lithgow Street address at the time of the cancellation.  Mr Chau Yeung said that he left Australia in December 2002.  When he sought to return to Australia in early January 2003, he was informed at Hong Kong airport that his visa and his father's had been cancelled.  This was the first occasion on which both he and his father were made aware of this.

6.      A Departmental file note indicates that Mr Yeung's daughter-in-law contacted the Department on 8 January 2003 and said notification of the decision to cancel had never been received.   She was advised "that they should contact the AAT".   A copy of the cancellation decision was sent to the daughter-in-law's address at 23 Hillcrest Avenue, Epping on 8 January 2003.  Mr Yeung's application for a review of the decision to cancel his visa, lodged at the AAT on 20 February 2003, states that he received the decision on 20 January 2003.  That application was signed on 19 February 2003.

7. Thus, a period of 11 months elapsed between the original notice of cancellation dated 20 March 2002 and Mr Yeung's application for review being lodged with the Tribunal. Pursuant to s 29(2) of the Administrative Appeals Tribunal Act 1975, applications for review of a decision must ordinarily be lodged within 28 days after notification of the decision. However, s 29(7) provides that the Tribunal may extend the time for making such an application.

8.      The principles guiding the Tribunal in the exercise of its discretion in deciding whether to grant an extension of time have been the subject of many Federal Court and Tribunal decisions.   It is widely accepted that the Tribunal should be guided by the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. However, as Hill J noted in Brown v Federal Commissioner of Taxation (1999) 42 ATR 118, at paragraph 41, too slavish an adherence to those principles should be avoided.

9.      The first proposition is that an application applying for an extension of time must provide an explanation for the failure to lodge the application within the required period, which, in the ordinary case, should be an acceptable explanation for that failure.   Secondly, it is relevant to consider whether the Applicant has "rested on his rights" such that the decision-maker may have believed that the matter may have finally been concluded.  Thirdly, is there any prejudice to the Respondent by the granting of an extension of time?   Fourthly, should relevant matters of public policy and public interest be taken into account?  Fifthly, what are the merits of the application?   The Applicant should be able to show that he or she has an arguable case.  Sixthly, would the granting of the extension of time raise considerations of fairness as between the Applicant and other persons in a like position?

10.     Dealing with each of these propositions in turn, first, the Applicant says he never received the notification of 20 March 2002 at that time.  There is no evidence as to why the registered post deliveries failed and the letters were returned to sender.  The Applicant's son says he was living at the address at that time.  Given that the Applicant had responded to the Respondent's invitation to make comments on the proposed cancellation of the visas by letter dated 15 December 2001, it is surprising that when the Applicant heard nothing further, he did not follow up on the outcome of his submissions.

11. In the Tribunal's view, the Respondent did all that was required of it by sending the notifications by registered post (see s 494B(4) of the Act), and, pursuant to s 494C(4), such notification is deemed to have been received seven working days after the date of the document.

12.     Even if one were to assume that notification of cancellation was not effected in late March 2002, notification would have been effected in January 2003.  The evidence of the Department's file note is that a copy of the notices was despatched to the Applicant's daughter-in-law on 8 January 2003.  Deemed receipt would have occurred on 15 January 2003.   The Applicant's application to the Tribunal states that the letter of notification was received on 20 January 2003.  Even allowing for this later date, the application to the Tribunal for a review was still not made within 28 days.  The parties agreed at the hearing that the application was between two and five days outside the required 28 day period. 

13. The Tribunal is not satisfied that there is a reasonable explanation for the delay. Whilst there is insufficient evidence to persuade the Tribunal that the Applicant rested on his rights - the second factor to be considered - nevertheless, it is clear that the Applicant was, at the very least, tardy. Thirdly, there is no evidence to suggest that there would be any prejudice to the Respondent by the granting of an extension of time. The fourth and sixth factors can conveniently be considered together in this case. Clearly, there is a public interest in there being compliance with the regulatory framework established by the Act. There is also the issue of fairness as between the Applicant and other persons in a like situation. Here, the decision was notified 11 months before the Applicant's application for a review by the AAT was received, the Respondent having done all that could reasonably be expected of it to effect notification.

14. The final factor to be considered is the merits of the Applicant's case. The Applicant should be able to show that he has an arguable case. The Respondent states that Mr Yeung spent only 64 days in Australia between 20 April 1999 and 20 March 2002 and that he was primarily engaged in running a business in China which continued to be his main source of income. While Mr Yeung had registered a proprietary limited company in Australia, evidence provided to the Department indicated that only one shipment of almond oil had been made to Hong Kong, in May 2000. The Departmental delegate was not satisfied that Mr Yeung had made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia, nor made a genuine effort to utilise his skills to actively participate at a senior level in the day to day management of that business, as required by s 134(1) and (2) of the Act.

15.     Mr Latham, for the Applicant, suggested that Mr Yeung had been misled by advice from a Migration Agent in Hong Kong into not thinking that the importation of products into Australia would be taken into account by the Respondent in evaluating the Applicant's business activity.   Mr Latham said that Mr Yeung would now revive a previous plan relating to the importation of “bioinsecticide”, and had taken steps to progress this.   Mr Chau Yeung's affidavit makes reference to this.  However, this will obviously take place after the original decision and should not be accorded significant weight for that reason. 

16.     The Tribunal notes that in his submission to the Department dated 21 December 2001, Mr Yeung recognised that he must presently concentrate on his business activities in China.  He stated:

I have to stay in China to develop communication network and business relations.  My wife assists me to take care of the business in Australia.

The documents which Mr Yeung appended to his submission do not, in the Tribunal's view, indicate a developing business.  Apart from the one shipment of almond oil referred to earlier, there is little indication of business activity.  The Tribunal notes that the main asset of the company is a motor vehicle.  Nor is there any evidence of active participation by Mr Yeung in the company's day-to-day management.  Certainly, Mr Yeung’s spending 64 days in Australia over a period of two years and 11 months is not indicative of any genuine effort in either establishing or developing an eligible business in Australia or actively participating in its day to day management.

17. Thus, on the basis of the evidence before it, the Tribunal is not persuaded that the Applicant has an arguable case. Weighing up the above considerations, and, in particular, with regard to the lack of a reasonable explanation for the Applicant's delay in making his application to the Tribunal and the apparent lack of merit for that application, the Tribunal concludes that it should not exercise its discretion to grant an extension of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975.  The Tribunal therefore denies the Applicant's application for an extension of time.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the Oral decision herein of Mr RP Handley, Deputy President

Signed:         .......................................................................................
  Associate

Date/s of Hearing  14 May 2003
Date of Decision  14 April 2003
Representative for the Applicant               Mr I Latham, Counsel
Representative for the Respondent          Ms J Selth, Solicitor