The Applicant cites three grounds for his contention that the Minister did not give Mr Xiaoyi Lin a valid notice of his intention to cancel Mr Lin's visa as required by s 135(1) of the Act.
[2]
Was cancellation of the primary visa holder's visa a pre-condition?
[3]
The first ground on which the validity of the notice is challenged is that the cancellation of the visa held by the primary visa holder, Mr Lin's father, was a condition precedent to the valid exercise of the delegate's power to issue such a notice to secondary visa holder, Mr Xiaoyi Lin. This had not yet occurred and thus the notice was invalid. Mr Dobbie stated that the wording of the notice created the impression that a decision to cancel Mr Lin's father's visa had already been made.
Mr Dobbie noted that pursuant to s 135(1)(b), the sending of notices of intention to cancel to both the primary and secondary visa holder's visas at the same time, could lead to the anomaly that if the primary visa holder is outside Australia and the secondary visa holder is onshore, the secondary visa holder's representations must be received within 28 days after the notice is given while the primary visa holder's representations need only be received within 70 days after the notice is given. Mr Dobbie said this does not make sense, especially in terms of the secondary visa holder making representations about the hardship that would result from cancellation of his or her visa.
Mr Dobbie referred to the decision in Wei Zhong v Minister for Immigration and Citizenship[2008] FCA 507 (Zhong) (further discussed below) which, he submitted, requires in Mr Lin's case that the Minister must already have made a decision to cancel the primary visa holder's visa.
The Minister rejects this argument contending that as it is a legislative necessity that the secondary visa holder's visa is cancelled when the primary visa holder's visa is cancelled, it is appropriate for the secondary visa holder to be given an opportunity to make representations prior to the cancellation of the primary visa holder's visa.
The wording of s 135(1) requires the giving of notice to the holder of the visa before the cancellation of that person's visa. With reference to secondary visa holders, the subsection does not stipulate that another person's visa must first have been cancelled. Mr Orford, for the Minister, submitted that the language of s 135(1) does not require a state of mind, as in Zhong. The subsection is drafted in such a way that the notice requirement applies in respect of both primary and secondary visa holders.
Mr Orford referred to the Explanatory Memorandum for the Migration Amendment Bill (No 2) 1992 which introduced what is now s 135 into the Act. In referring to the notice requirement, a distinction is drawn between primary and secondary visa holders.
Mr Orford also noted that practical difficulties might follow in the case of children who are secondary visa holders if a parent's primary visa is cancelled first. The giving of notice to both primary and secondary visa holders at the same time avoids such problems.
In my view, the decision in Zhong is distinguishable on the facts since it was concerned with non-compliance and the relevant section of the Act in that case required the Minister to have first decided that the holder of the visa had not complied with specific provisions of the Act before giving the holder of the visa a notice. While s 134(4) is subject to s 134(5) and to s 135, s 134(4) is purely about cancelling visas by giving written notice of cancellation to the visa holders, and does not itself deal with the grounds for cancellation. There is no requirement in the subsection for the Minister to have attained a particular state of mind.
Thus, I do not accept that the cancellation of the primary visa holder's visa is a pre-condition or condition precedent to the issuing of a notice to the secondary visa holder under s 135. In my view, the timing of the notice in Mr Xiaoyi Lin's case was not inappropriate and had no effect on the validity of the notice.
[4]
The second ground on which the Applicant contends the notice was invalid is that it did not comply with s 135(1)(a) in so far as it did not state the Minister was proposing to cancel the visa. Mr Dobbie submitted that s 135(1)(a) requires the notice to state that "the Minister proposes to cancel the visa".
Mr Orford said while the notice does not use the word "proposes", the language used in the notice is sufficiently clear to appropriately reflect the language used in s 135(1)(a). He referred to the Macquarie Dictionary definition of "propose" which includes "to put forward (a matter, subject, case etc) for consideration", and "to intend". The wording of the notice, which bears the heading "NOTICE OF INTENTION TO CONSIDER CANCELLATION OF YOUR VISA", states that "there may be grounds to consider cancellation of your visa" and invites Mr Lin to make representations.
Having examined the notice dated 1 October 2008 sent to Mr Xiaoyi Lin, I am satisfied that it explains sufficiently clearly why he is being invited to make representations - and, indeed, refers in lines 3 - 4 to "your opportunity to make representations about the proposed cancellation". Later in the notice, it refers to giving Mr Xiaoyi Lin an "opportunity to comment" and refers specifically to making representations about "why you think the cancellation of any visas held by you ... would result in extreme hardship". In my view, the notice adequately addressed the wording of s 135(1)(a). The notice is not required to use exactly the same words used in the subsection as long as the intention is clear.
[5]
Did the notice invalidly restrict the form that representations might take?
[6]
The third ground on which the Applicant contends the notice was invalid is that it sought to restrict representations to those made in writing when there is no such restriction imposed by s 135(1)(b). The notice stated "You are invited to make representations to the Minister in writing to Locked Bag 7, Northbridge WA 6865". Mr Dobbie acknowledged that this argument was rejected by Deputy President Walker in Adams and Minister for Immigration and Citizenship[2007] AATA 1180 (Adams), but submitted that the Deputy President's reasoning in Adams should be rejected. The notice in the current matter restricts representations to those made in writing and sent to the Locked Bag. This would mean that if a visa holder only receives the notice on the 28th day after the giving of notice, he or she would be unable to make representations to the Minister, which would be contrary to the language of s 135(1)(b).
Mr Orford submitted that DP Walker's decision in Adams is correct and should be followed. The notice makes clear that the person can contact the Department in a number of ways. Mr Orford also referred to the relevant departmental policy (included in the T Documents), which states that if a response to such a notice is received before the decision is made, "even though outside the 'allowed period', it must be taken into consideration".
In Adams, at [18], DP Walker rejected a similar argument put by Mr Dobbie, noting that the contact details and address of the delegate were stated on the notice, which also referred to further information about the process on the Department's web page and stated that further information could be obtained by contacting the Department by email, telephone or fax. I agree with DP Walker's comment, at [19]:
[7]
While in retrospect the notice might have been worded more clearly, it did not impose a condition but merely indicated an address which the applicant could be confident would ensure that his representations would reliably reach the minister's delegate.
[8]
In the current matter, at the bottom of page 1 of the notice, the street address of the relevant section of the Department is stated alongside the same Locked Bag number to which the person is invited to make representations (on page 2), together with an email address for the section, a website, telephone number and fax number. The final paragraph of the letter on page 2, which is headed "Further Information", states that if the person "would like further information about the Business Skills monitoring process, please examine our webpage" (webpage address provided) or "Alternatively, you may contact us via E-mail ... by telephone ... or by fax ...".
In my view, the "invitation" is not prescribing the form that the response should take but requesting that representations should be in writing to the Locked Bag - presumably for the sake of convenience and so that the representations are made in a tangible form. The provision of other means of contact on the notice, including the street address, email address, telephone and fax number alongside the same Locked Bag number is sufficient to facilitate other means of communicating the person's representations.
My having rejected the Applicant's three grounds for challenging the validity of the notice, the Applicant's contention that no valid notice was given within the three-year period prescribed by s 134(9) must also be rejected.
Thus, the decision under review is affirmed.
[9]
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President