Tio v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 53 (27 March 2003)

Last Updated: 27 March 2003

FEDERAL COURT OF AUSTRALIA

Tio v Minister for Immigration & Multicultural &

Indigenous Affairs [2003] FCAFC 53

MIGRATION - construction of statutory time limit for cancellation of Business Skills visa by Minister - Migration Act 1958 (Cth) s 135 - expression in subs 135(4)(b) "the period of 90 days commencing at the time specified in the notice" - application of that expression to a notice which said "by 7 March 2002" - whether the period of 90 days ran from the end of 7 March 2002 or included 7 March 2002.

Migration Act 1958 (Cth) s 135

Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 cited

Watson v Uniframes Ltd [1994] FCA 880; (1994) 55 FCR 556 cited

Re Madden (1996) 131 FLR 430 cited

Re Wang and Minister for Immigration & Multicultural Affairs [2002] AATA 499; (2002) 35 AAR 185 disapproved

Re Sack and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 675 disapproved

Forster v Jodedex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 cited

Eastaugh v Macpherson [1954] 1 WLR 1307 cited

Manorlike Ltd v Le Vitas Travel Agency and Consultancy Services Ltd [1986] 1 All ER 573 cited

Murragong Nominees Pty Ltd v Melbourne and Metropolitan Board of Works (1985) 60 LGRA 210 cited

Prowse v McIntyre [1961] HCA 79; (1961) 111 CLR 264 cited

Layton v Westpac Banking Corporation [2000] FCA 1752 cited

Segal v Young [2001] NSWCA 141 cited

Clyne v Deputy Commissioner of Taxation [1981] HCA 40; (1981) 150 CLR 1 cited

TIO TJHEN KOK AND ORS v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1233 OF 2002

LINDGREN, STONE AND DOWNES JJ

27 MARCH 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1233 of 2002

ON A SPECIAL CASE STATED UNDER s 45 OF THE

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH)

BETWEEN:	TIO TJHEN KOK FENNY SUTANTO ONG TIO HWEE PIAO APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	LINDGREN, STONE AND DOWNES JJ
DATE OF ORDER:	27 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The question:

"Was the Minister's decision (made on 5 June 2002) to proceed with the cancellation of visas made after the end of the period of 90 days referred to in par 135(4)(b) of the Migration Act 1958 (Cth)?"

be answered "No".

2. By consent, the respondent pay the applicants' costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1233 of 2002

ON A SPECIAL CASE STATED UNDER s 45 OF THE

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH)

BETWEEN:	TIO TJHEN KOK FENNY SUTANTO ONG TIO HWEE PIAO APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	LINDGREN, STONE AND DOWNES JJ
DATE:	27 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

LINDGREN J:

INTRODUCTION

1 The Administrative Appeals Tribunal has referred to the Court for decision a question of law arising in a proceeding before the Tribunal. The power to refer such a question is conferred on the Tribunal by subs 45(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Subsection 45(2) of that Act gives the Court jurisdiction to hear and determine a question of law so referred, and provides that the jurisdiction is to be exercised by the Court constituted as a Full Court.

2 Order 50 r 1 of the Federal Court Rules provides that a question to be referred for the consideration of the Court must be in the form of a special case. There is before the Court an amended special case signed by the President of the Tribunal (and endorsed with the consents of the legal representatives of the parties). The question referred is as follows:

"Was the Minister's decision (made on 5 June 2002) to proceed with the cancellation of visas made after the end of the period of 90 days referred to in par 135(4)(b) of the Migration Act 1958 (Cth)?"

I will refer to the Migration Act 1958 (Cth) as "the Act".

BACKGROUND FACTS

3 The following account of the background facts is based on a statement of agreed facts which is included in the amended special case.

4 There were three applicants in the proceeding before the Tribunal. The second and third named applicants are, respectively, the spouse and the child of the first named applicant. They were all granted visas in the class AD-127 (Business Skills). The first named applicant is the "principal" applicant and the second and third named applicants are both "secondary" applicants.

5 On 29 January 2002 there was despatched to each applicant a letter entitled "Notice of Intention to Cancel Your Visa" signed by a delegate of the respondent (respectively, "the Delegate" and "the Minister"). The letter notified the addressee of the Delegate's intention to cancel the addressee's visa on the grounds set out in the letter. Each letter advised that the Act gave the addressee the opportunity to make representations as to the grounds and as to why the visa should not be cancelled. The letter required that any representations be forwarded to the Delegate "by 7 March 2002" and advised that in the absence of a response, the Delegate might decide to cancel the visa, using information already held by the Department of Immigration and Multicultural and Indigenous Affairs. By saying "by 7 March 2002", the letter allowed until the end of 7 March 2002. The letter advised that if the addressee was unable to respond by 7 March 2002 the addressee should contact the Delegate to seek an extension of time.

6 Regulation 2.55(7) of the Migration Regulations 1994 (Cth) provides that, if the Minister gave a document to a person by despatching it by prepaid post, the person was taken to have received the document, relevantly, seven working days after the date of the document. The applicants are taken to have been given their notices on 7 February 2002.

7 On 5 June 2002, the Delegate decided to cancel the applicants' visas. That date was the ninetieth day after 7 March 2002, that is to say, the ninetieth day after midnight on 7 March 2002.

THE ACT AND THE QUESTION OF LAW REFERRED

8 Subsections 134(1), (3A) and (4) of the Act were provisions under which the Minister was empowered to cancel business visas. Subsection 134(9) provided that the Minister must not cancel a business visa under any of those subsections unless a notice under s 135 was given to the holder of the visa.

9 Section 135 provides 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."

10 The question which has arisen is that of the time of commencement of the period of 90 days referred to in par 135(4)(b). Depending on when that period commenced, the period of 90 days may have expired at the end of 4 June 2002, or at the end of 5 June 2002. If it expired at the end of 4 June 2002, since the Minister had not by then made a decision on whether to proceed with the cancellations, subs 134(4) prohibited him from proceeding with them. If, on the other hand, it expired at the end of 5 June 2002, he was at liberty to proceed with the cancellations because his decision was in fact made on that day.

11 In sum, the question of law referred calls for a construction of the expression "commencing at the time specified in the notice" in the circumstances of a notice given under subs 135(1) which stated "by 7 March 2002".

MY REASONING ON THE QUESTION OF LAW REFERRED

12 If par 135(4)(b) had said "commencing on the date specified in the notice", the date specified in the notices given (7 March 2002) would be counted as the first day of the 90-day period, which would therefore expire on 4 June 2002: see Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524; Watson v Uniframes Ltd [1994] FCA 880; (1994) 55 FCR 556; Re Madden (1996) 131 FLR 430. But par 135(4)(b) does not say that. In two decisions in the Tribunal, it has been accepted that where, as in the present case, the notice invites representations to be made by a particular date mentioned in the notice, the words "commencing at the time specified in the notice" in par 135(4)(b) are to be construed as having the same effect as the words "commencing on the date specified in the notice": see Re Wang and Minister for Immigration & Multicultural Affairs [2002] AATA 499; (2002) 35 AAR 185 (Senior Member J Handley) ("Wang") and Re Sack and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 675 (Deputy President R N J Purvis QC) ("Sack").

13 If, on the other hand, par 135(4)(b) had said "commencing from the date specified in the notice", the date 7 March would be required to be left out of account and the first day of the 90-day period would be 8 March, so that the period would expire at the end of 5 June 2002: Acts Interpretation Act 1901 (Cth) subs 36(1) (and, in the context of private instruments, compare Forster v Jodedex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 440-441, per Gibbs J). But, again, par 135(b)(b) does not say that.

14 Paragraph 135(4)(b) says "commencing at the time specified in the notice" (my emphasis) and must be applied to notices which stated "by 7 March 2002".

15 The notices of the proposal to cancel were communications from the Delegate to the visa holder and are to be construed accordingly. It is part of the statement of agreed facts contained in the amended special case that, by inviting representations "by 7 March 2002", the notices allowed the visa holder, as required by subs 135(1)(b)(i), a period of 28 days after the date on which the notice was given (no doubt the applicants recognised that expressions in the form of "by [a stated date]" or "within a period of [so many months or days]" are usually, but always subject to context, construed to refer to a period which includes the whole of the stated date or the whole of the last day of the stated period: see, for example, Eastaugh v Macpherson [1954] 1 WLR 1307; Manorlike Ltd v Le Vitas Travel Agency and Consultancy Services Ltd [1986] 1 All ER 573; Murragong Nominees Pty Ltd v Melbourne and Metropolitan Board of Works (1985) 60 LGRA 210 at 236).

16 What is the constraint imposed by subs 135(4) on the Minister in these circumstances? This question calls for careful consideration of that subsection in the context of the entirety of s 135 and the giving of a notice in the terms, and having the effect, outlined above.

17 Subsection 135(1) does not require the notice of the proposal to cancel to be in any particular form but requires that it invite the visa holder to make representations within "28 days after the notice is given". In such contexts, the law takes no account of parts of a day, and therefore, even apart from any effect of Regulation 2.55(7) noted at [6] above, the period is not measured as 28 twenty four hour periods from one instant of time to another instant of time: Prowse v McIntyre [1961] HCA 79; (1961) 111 CLR 264 at 277-287 per Windeyer J; Layton v Westpac Banking Corporation [2000] FCA 1752; Segal v Young [2001] NSWCA 141. Rather, the subsection requires that however the notice may be expressed, it allow a full period of 28 days "after" or "from" the end of the day on which it is given, and expiring at the end of that period of 28 days, that is, at midnight on the 28^th day. Oddly, perhaps, the provision does not say "a period of not less than 28 days after the notice is given". In the present case, however, the expression in the notices "by 7 March 2002" did mark the exact end of such a full period of 28 days after the giving of the notice on 7 February 2002.

18 Importantly, since a notice complying with par 135(1)(b) is not required to be in any particular form, it might be expressed in various ways, as the legislature must be taken to have contemplated, including the following:

1. "within 28 days after [the date on which the notice is given]".

2. "by [the date which is the 28^th day after the date on which the notice is given]".

3. "by midnight on [or "the end of"] [the last day of the period of 28 days after the date on which the notice is given]".

4. "by midnight on [or "the end of"] [the date which is the 28^th day after the date on which the notice is given]".

Numbers (3) and (4) clearly "specify" a moment of time expressly, whereas numbers (1) and (2) do not do so by mentioning an hour of the day. But the applicants do not submit, and I do not think, that a notice must expressly identify a moment of time in order to comply with subs 135(1). And, in my opinion, the constraint imposed on the Minister by subs 135(4) must be construed in the light of a legislative contemplation that a valid notice under subs 135(1) will be taken to "specify" a time, although expressed in any of the four ways mentioned above.

19 Subsection 135(2) provides that the visa holder may make representations "within the time specified in the notice", that is to say, within the period ending at midnight on the 28^th day. The visa holder would be entitled to make representations on more than one occasion, provided they were all made by midnight on the 28^th day (7 March 2002 in the present case).

20 Subsection 135(3) requires the Minister to give due consideration to any representations. A limitation is implied - the Minister must give due consideration only to representations made within the time specified in the notice, that is, within the period ending at midnight on the 28^th day (7 March 2002 in the present case).

21 Paragraph 135(4)(b)'s concept, "commencing at the time", strongly suggests "commencing at [a moment of] time" rather than the more loose "commencing on [a date or day]". The expression sits comfortably with the notion "commencing at the time [of an event]"; cf the Income Tax Assessment Act 1936 (Cth), ss 23AF(8), 50B ("relevant period"); 62 AAE(1); 159GE(7); 160ZZPA(1)(h); 160ZZPB(1)(h); 160ZZPC(c); 160ZZPD(c); 310(2)(b); 413(2)(b) and (3)(b); the former Commonwealth Employees (Employment Provisions) Act 1977 (Cth), s 8(3)(a); the former Family Law Act 1975 (Cth) s 114AA(7) ("relevant period"); Public Service Regulations 1935 (Cth) regs 63B(6)(c), 115C(4).

22 Subsection 135(4), unlike the notice under subs 135(1) of the proposal to cancel, is a prohibition intended to be read and understood primarily by the Minister, not a communication to the visa holder to be read and understood by him or her. But the visa holder has an interest in knowing when the time for cancellation has passed. The Minister and, for this purpose, the visa holder, can be expected to read subs 135(4) in the context of the whole of s 135.

23 At first blush oddly, par 135(4)(b) does not speak of a period commencing at the expiry of the 28 day period referred to in subs 135(1). Rather, it speaks of "the time specified in the notice" and, as already observed, the form of notice is not prescribed. The explanation, I think, is to be found in the fact that subs 135(1) allows no leeway and requires the giving of a notice which has the effect of allowing a period expiring at the end (midnight) of the 28^th day.

24 As previously indicated, paragraph 135(4)(b) must be construed so as to conform to the contemplation that a valid notice under subs 135(1)(b) may be expressed in various ways, including all four ways referred to in [18] above, of which the first and second do not refer expressly to a point in time, but that, regardless of its form, a valid notice will always have the effect of allowing exactly 28 days expiring at the "time" of midnight on the 28^th day.

25 I accept that it is arguable that the only time "specified" in the notices was the date 7 March 2002. But the preposition "at" in par 135(4)(b) sits ill with a date. And the notices did not say "at" or "on", but "by", indicating the end of a period. A period ends at an instant of time, even if it is described as ending on a specified date. In my opinion, the notices here specified a period ending at the end of 7 March 2002.

26 Accordingly, for the purpose of par 135(4)(b) "the time specified in the notice" is the end (midnight) of the date, or the 28^th day of the period mentioned in the notice. Another way of expressing the position is to say that the expression "by 7 March 2002" in the notices specifies, for the purposes of par 135(4)(b), the time inherent in the expression "by the end of 7 March 2002".

27 The view that the 90-day period commenced earlier than midnight on 7 March 2002 suggests that the Minister might make a decision on whether to proceed with the cancellation prior to that moment, that is to say, before the full period of 28 days permitted for the making of representations had expired. I say only "suggests" because the response can fairly be made that subss 135(2) and (3) would prevent the Minister from doing so, with the result that the period of 90 days might have commenced before the Minister was at liberty (following midnight on 7 March 2002) to decide whether to proceed with the cancellation. I can say no more in this respect than that this view seems to me to be somewhat at odds with the scheme, which s 135 seems to me to reflect, of a closure of the period for the making of representations followed immediately by a full 90-day period for the consideration of any representations made and the taking of a decision on whether to proceed with the cancellation.

CONCLUSION

28 For the above reasons, in my opinion the question posed in the amended special case should be answered "No", and Wang and Sack should not be followed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 27 March 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1233 OF 2003

ON A SPECIAL CASE STATED UNDER s 45 OF THE

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH)

BETWEEN:	TIO TJHEN KOK FENNY SUTANTO ONG TIO HWEE PIAO APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	LINDGREN, STONE AND DOWNES JJ
DATE:	27 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

STONE J:

29 The factual and legislative background to this matter is set out in the reasons for judgment of Lindgren J and I gratefully adopt his Honour's summary. As his Honour has indicated the question referred to this Court is:

`Was the Minister's decision (made on 5 June 2002) to proceed with the cancellation of visas made after the end of the period of 90 days referred to in par 135(4)(b) of the Migration Act 1958 (Cth)?'

30 The issue between the parties is the time at which the period of 90 days ends. The possibilities are either 4 or 5 June 2002. If it is the former, then the Minister's decision made on 5 June, was out of time and the Minister is prohibited by s 135(4) of the Migration Act 1958 (Cth) (`Migration Act') from proceeding with the cancellation of the applicants' visas.

31 In deciding when the 90-day period ends it is clearly necessary to determine when that period begins and therefore to construe the expression "commencing at the time specified in the notice" occurring in s 135(4)(b). It is common ground that this question of construction is to be answered in the context of a notice in which the relevant expression was "7 March 2002".

32 The "time specified in the notice" has dual significance. It marks the expiry of the period within which the holder whose visa is under threat of cancellation may make representations to the Minister concerning the proposed cancellation (the "representation period"); s 135(2). It also marks the commencement of the 90-day period within which, if the Minister is to proceed with cancellation of the visa, he has to make the decision to do so (the "decision period").

33 It is not in contention that in this case the representation period extended for the whole of the day specified in the notice, namely 7 March 2002. The applicants, taking the words of s 135(4)(b) at face value, contend that the decision period also commenced on 7 March 2002 and therefore ended on 4 June 2002, the day before the Minister made his decision.

34 A consequence of the applicants' interpretation is that the representation period and the decision period overlap by one day, in this case that day being 7 March 2002. It was submitted for the Minister that this interpretation would have the unfortunate, and surely unintended, result that the Minister would be entitled to make a decision at a time when the visa holder was still within time for making representations.

35 I do not accept this submission. The combination of s 135(2), which provides for the representation period, and s 135(3), which provides that the Minister must give "due consideration to any representation", makes it amply clear that the Minister would be in breach of his obligations if he made a decision before the representation period expired. I am not impressed by the argument that this would mean that the Minister would only have 89 days within which to make the decision. There is, in my view, nothing in the Migration Act that "gives" the Minister a specific period in which to make a decision. Section 135(4)(b) specifies, not the time in which a decision must be made; rather it specifies a point in time beyond which the Minister may not proceed with cancellation of the visa. There is no obligation on the Minister to make any decision; if he wishes he may let the matter lapse.

36 The Minister contends that it is "clear" that the legislature intended that the 28-day and 90-day periods should run consecutively and without overlap. He does not, however, provide any support for this construction other than that "it is obvious". While I accept, for the purposes of argument, that the mention of a period of 28 days and a period of 90 days may initially lead one to expect that the periods do not overlap, it is by no means clear that this is what was intended. Indeed the Minister's submission seems to me to suffer from the logical fallacy of stating as a premise the very conclusion to which the argument is directed. It is hardly an adequate submission when this is the very issue this Court is asked to decide.

37 The provisions of s 135 were inserted into the Migration Act by the Migration Amendment Act (No 2) 1992 (Cth) s 50B. In his second reading speech, Mr Hand, the responsible minister, stated that the provision "recognises that, as permanent residents, business migrants should not be under the threat of cancellation indefinitely". I do not want to place too much emphasis on this comment, however it does suggest that the purpose of the provisions of s 135 was to give certainty to holders of a business visa rather than to stipulate a 90-day period as being somehow necessary for the Minister to reach his decision.

38 The Minister has submitted that the time specified in the notices was stated as "7 March 2002" for clarity and that the time could just as easily, if somewhat less helpfully to the applicants, have been specified as "28 days after receipt of this notice". Lindgren J has indicated other forms that the notices might have taken; see [18]. I accept that a notice issued under s 135(1) could legitimately take any of these forms. I cannot however see how this affects the analysis. However expressed the notice must point to a date even if it also, expressly or implicitly, indicates a point in time on that date. That date (and time) is "the time specified in the notice" and thus, by operation of s 135(2), it marks the end of the representation period. The answer to the question whether the representation and decision periods overlap would not, to my mind, vary with the form in which the end of the representation period is expressed.

39 The Minister submits that the time specified in the notice as 7 March 2002 refers to the end of the 28-day period which is the "instant" when 7 March ends and 8 March begins so that, although 7 March 2002 is the last date by which the applicant could make representations, 8 March 2002 is the "time specified" for the purpose of s 135(4)(b). The "instant" is said to be at midnight, that instant being both the end of 7 March and the beginning of 8 March; see Kitto J in Prowse v McIntyre & Ors (1961) 111 CLR 265 at 274, "The beginning of a day is nothing but the end of the day before, and the end of the day is nothing but the beginning of the next". This passage, whilst not perhaps a statement of law, was approved of in general terms by Mason J in Forster v Jododex Australia Pty Limited [1972] HCA 61; (1972) 127 CLR 421 at 453, although His Honour held that it did not apply to the interpretation of the statute being examined in that case, namely s 83 of the Mining Act 1906 (NSW).

40 I do not understand this comment to assist the Minister. Whatever Kitto J intended to convey I do not think he intended to infer that there is a moment in time that is, at one and the same time, both the 7^th and the 8^th of March. If midnight on the 7^th of March is also the first point on 8 March then it would follow that midnight on 6 March is also the first point in time on 7 March. That would lead to the extraordinary conclusion that there are two "midnights" on each date. Yet that is what the logical extension of the Minister's argument requires.

41 If, as the Minister contends, 5 June 2002 was the last day of the 90-day period referred to in s 135(4)(b), then the first day of that period must have been 8 March 2002. Whatever the 8^th of March is, it is not the 7^th of March. That is not how we describe periods of time. We refer to dates to distinguish between periods of time; not to coalesce them. It is essential to the measurement of time (the central issue in this case) to specify points in time that separate periods of time. While a novelist may use "midnight" to refer to a period of time, the same term used in the measurement of time has no duration. It is a point in time that separates periods. Something can happen "at midnight" in the novelist's sense but in the measurement of time it is infinitely short; things can happen before or after midnight, but not "during" midnight.

42 The difference between the days of 7 March 2002 and 8 March 2002 is clearly ascertainable. Each is a separate and distinct temporal point and they cannot co-exist. At the same geographical location a particular temporal moment cannot be both on one day and another simultaneously. Indeed, if there were a point in time where the days did overlap, and it was capable of empirical measurement, that moment would in my view be neither 7 March nor 8 March but something altogether different. Whatever the intention of the Minister's delegate in drafting the notices, a time that is not 7 March 2002 cannot be the time specified in the notices.

43 The applicants contend that the decision to cancel their visas was made more than 90 days after the date specified in the notice, being 7 March 2002. Section 135(1)(b)(i) and s 135(4)(b) use different language in stipulating the timing of events. Whereas the former uses the expression "28 days after the notice is given", the words in the later are "90 days commencing at the time specified in the notice". If the applicants' submissions are accepted then a literal reading of s 135(4)(b) means the period of 90 days commenced at 7 March 2002 and ended "at the end of the period of 90 days", namely 4 June 2002. Once the day 4 June 2002 ended it became something else. Whether it immediately became 5 June 2002 or became some mysterious transitional period for an unmeasurable point in time it was no longer 4 June 2002 and any decision made after it ended was made outside the 90 day period prescribed.

44 The interpretation of time provisions has been specifically addressed by the AAT in Wang and Minister for Immigration [2002] AATA 449 ("Wang") and Sack and Minister for Immigration [2002] AATA 675 ("Sack").

45 In Wang (which was followed in Sack), where the relevant notice required any representations to the Minister to be submitted by a date specified as 4 May 2001 in the notice, Member Handley followed an analysis of the impact of the Acts Interpretation Act 1901 (Cth) and the High Court of Australia decision in Clyne v Deputy Commissioner of Taxation [1981] HCA 40; (1981) 150 CLR 1 on the interpretation of s 135(4)(b) of the Act by stating at para 33 that:

"The word `commencing' is a term of everyday language and needs no special or legal interpretation. It means `to commence' or `beginning'. ... I am satisfied that the entire expression `commencing at the time' means to either begin or commence at a point in time. That point in time is that which is `specified in the notice'. The only applicable `point in time' can be a date and relevantly the date `specified in the notice' is 4 May 2001." (original emphasis)

46 This is consistent with the reasoning of Beaumont J in Darwin Broadcasters Pty Limited v Australian Broadcasting Tribunal (1990) 21 FCR 524 ("Darwin") at 526 to 527:

"A question arises as to how the period of 60 days is to be calculated. By s 36(1) of the Acts Interpretation Act 1901 (Cth), it is provided that where in any Act any period of time, dating from a given day, act or event is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event. In the present case, the period is to commence `on' a certain day. It follows, in my opinion, that the Acts Interpretation Act does not apply here."

47 The Minister submits that the decision in Darwin can be distinguished by the fact that the language considered in that case, being "commencing on the day on which notice is given" and the language in s 135(4)(b), being "commencing at the time" are materially different. In my view the Minister's submission is unconvincing and the applicants' construction, supported by both Wang and Darwin, and flowing from the literal interpretation of the words used in the statute is to be preferred.

48 To my mind, the words in the notice "7 March 2002" should be given their natural meaning and s 135(4)(b) does nothing more than refer the reader to those words in order to establish the commencement time for the 90-day period, in this instance a date, namely 7 March 2002. I can determine no reason of language or policy to support a view as complex as that suggested by the Minister. As I have already remarked the only support for that view seems to be expectation that the representation and decision periods do not overlap. This unsupported expectation cannot stand in view of the plain meaning of the term

49 For these reasons I am satisfied that the 90-day period within which the Minister was required to make his decision if he was to proceed to cancel the applicants' visas overlaps by one day with the 28-day period in which the visa holder may submit material to the Minister for consideration. Thus, the 90-day period that commenced on 7 March 2002 ended on 4 June 2002. The Minister's decision was made after the end of the decision period and therefore the question of law referred for consideration should be answered "Yes".

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 27 March 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1233 of 2002

ON A SPECIAL CASE STATED UNDER s 45 OF THE

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 (CTH)

BETWEEN:	TIO TJHEN KOK FENNY SUTANTO ONG TIO HWEE PIAO APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	LINDGREN, STONE AND DOWNES JJ
DATE:	27 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

DOWNES J:

50 Section 134 of the Migration Act 1958 ("the Act") empowers the Minister of 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 (subs 134(1)).

51 On 5 June 2002 a delegate of the Minister purported to cancel the applicants' business visas pursuant to s 134 of the Act. Application was made to the Administrative Appeals Tribunal, pursuant to s 136 of the Act, for review of the cancellation decision.

52 One issue before the Tribunal was whether the decision to cancel the visas was made within the time permitted by the Act. That raises for consideration the meaning of certain time provisions contained in s 135 of the Act.

53 Section 135 of the Act provides:

"135 Representations concerning cancellation of business visa

(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."

54 Subsection 134(9) of the Act precludes the Minister from cancelling a business visa under subs 134(1) unless a notice under s 135 was given within the period of 3 years commencing on the day of its grant or the day the holder first entered Australia under the visa. Accordingly, where subs 135(4) applies there will be no opportunity for subsequent cancellation under subs 134(1).

55 On 29 January a delegate of the Minister signed a notice under subs 135(1) of the Act addressed to the applicants and sent the notice that day by prepaid post to them at their last known address. By virtue of reg 2.55(7) of the Migration Regulations 1994 (Cth) the applicants are taken to have received the notice seven working days after the date of the letter, namely 7 February 2002. It is agreed that the notice was given on that date.

56 In purported compliance with subs 135(1) the notice contained the following sentence:

"Please forward your representations to us in writing, using the postal address at the end of this letter, by 7 March 2002."

57 The seventh of March 2002 was the twenty-eighth day after the date the notice was given. It follows that, by virtue of subpara 135(1)(b)(i) and subs 135(2) of the Act, the last day for the making of representations was 7 March 2002. That date was after the end of the three year period prescribed by subs 134(9) with the consequence that subs 135(4) applied.

58 The applicants did not make representations within the time specified in the notice but did send a letter which was received by the delegate on 20 March 2002 which contained representations relating to the proposed cancellation. It is to be noted that neither the fact of the making of representations nor the date of the making of any representations appears to affect the subsequent time provisions in the Act.

59 On 5 June 2002 the delegate made a decision to cancel the applicants' visas. That day was 118 days after the date on which the notice that the delegate proposed to cancel the visa was given. If the 90-day period commenced immediately after the 28-day period had come to an end then the decision to cancel was made within the time prescribed in subs 135(4) of the Act. If the 90-day period commenced on the last day of the 28-day period then the effect of subs 135(4) was to preclude the delegate from proceeding with the cancellation.

60 The question whether there was a valid decision to cancel the applicants' visas arose as a preliminary question in the proceedings for review in the Administrative Appeals Tribunal. Both parties asked the Tribunal, pursuant to s 45 of the Administrative Appeals Tribunal Act 1975 (Cth) to refer the question of law which arose to this Court for decision. The Tribunal acceded to the requests. The jurisdiction of the Court in such a reference is to be exercised by a Full Court (subs 45(2)).

61 The actual question ultimately referred to this Court is as follows:

"Was the Minister's decision (made on 5 June 2002) to proceed with the cancellation of visas made after the end of the period of 90 days referred to in par 135(4)(b) of the Migration Act 1958 (Cth)?"

62 The precise question which arises is whether "the period of 90 days commencing at the time specified in the notice" (par 135(4)(b)) includes the day identified in the notice given under subpara 135(1)(b)(i) of the Act by the words: "Please forward your representations... by 7 March 2002."

63 The end of the time period in par 135(4)(b) is to be calculated by reference to "the time specified in the notice". That is a reference to subs 135(2). Subsection 135(1) does not refer to the specification of any time in the notice. Paragraph 135(1)(b) describes the time within which representations may be made more directly: "within ... 28 days after the notice is given". Problems might arise if a notice specifies a date which does not accord with the date required by subpara 135(1)(b)(i). However, that problem does not arise here. Never the less, the dual role of par 135(1)(b) and subs 135(2) may have some significance.

64 Because the time limited in subpara 135(1)(b)(i) for the making of representations is "within ... 28 days after the notice is given" the making of representations in the present case must have been permitted on 7 March. The time for making representations was current during 7 March. It was within the period during which representations may be made. The end point of the period had not arrived. The same is true of the period covered by the notice which is described in subs 135(2) by the phrase "within the time specified in the notice". It follows that, both as a matter of construction of the Act and as a matter of construction of the notice given in the present case, "the time specified in the notice" (subs 135(2)) did not conclude until the end of 7 March. At midday on that day neither the period "within ... 28 days after the notice is given" (par 135(1)(b)) nor the period "within the time specified in the notice" (subs 135(2)) had expired.

65 The phrase "time specified in the notice" might ordinarily be expected to refer to a point in time rather than a period of time. However, subss 135(1) and (2) are primarily concerned with a period of time. This meaning is given to the phrase by the employment in both subsections of the word "within". When "within" is placed before "the time specified in the notice" the phrase identifies a period of time and not a point in time. When "the time specified in the notice" is used in par 135(4)(b) it follows the word "commencing". The change from "within" to "commencing" is a change from a period of time to a point in time. The problem which arises is how to identify a point in time, as required by par 135(4)(b), from a description of a period of time as required by subs 135(1) and (2).

66 All periods of time come to an end at a point in time. Whether one looks at the period of time in the present case from the perspective of subpara 135(1)(b)(i) or subs 135(2) coupled with the notice actually given the period had not come to an end at midday on 7 March. It did not come to an end until the end of that day.

67 The possible alternative commencing times for the beginning of "the period of 90 days commencing at the time specified in the notice" in par 135(4)(b) are 7 March, so that that day is day one, and the instant when 7 March ends and 8 March begins, so that day one is 8 March. There is no moment between 7 March and 8 March. Midnight is both the end of 7 March and the beginning of 8 March (see Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 452 and 453 per Mason J approving the remarks of Kitto J in Prowse v McIntyre [1961] HCA 79; (1961) 111 CLR 264 at 274).

68 The task is to find a time specified in the notice from which a period of time will begin. Because periods of time must begin from a point of time and because each of the relevant elements in par 135(4)(b) appear to me to address a point in time ("at", not "on"; "time", not "day"; "specified", not "named") I am driven to the conclusion that the time specified in the notice is the time at which the notice expires which is, in turn, the beginning of 8 March or the end of 7 March. It is not within 7 March, nor, for that matter, is it within 8 March. However, the next moment is 8 March.

69 The present legislation is concerned both with a period of time and a point in time. The period of time concludes at a point in time. Because par 135(4)(b) focuses on a point in time, that point must be the last moment of 7 March. It cannot be the beginning of the day or an unspecific reference to the day because the time period does not come to an end until the end of the day. Accordingly, the time specified is the end of 7 March and the 90-day period commences at the beginning of 8 March.

70 Further support for the above conclusions is found in par 135(4)(a) which sets out a condition precedent to subs 135(4) becoming operative and does so by reference to the end of the time specified in the notice. The emphasis on the last moment for making representations ("the time specified in the notice ends...") supports the conclusion that that is the time specified for the purpose of determining when the next period commences.

71 A construction of the section which concludes that 7 March is the first of the 90 days would have the effect that the period of time identified by the legislature as the period during which the Minister effectively could make a decision begins one day before the Minister could safely make a decision because the Minister would have to give consideration to representations made during the day (subs 135(3)). It would also have the effect that two periods which reason suggests are appropriately consecutive were not in fact consecutive. I do not think the legislature intended either of these consequences and would not so read the section unless compelled to do so by the words of the section. Not only do I not feel compelled to do so but, for the reasons I have given, I consider that the words of the section, naturally construed, lead to the reasonable result.

72 It follows from the above that the delegate's decision on 5 June 2002 to cancel the business visas of the applicants, which was notified to the applicants by letter of the same date, was not made outside the time limited by par 135(4)(b) and the Minister is not precluded from proceeding with the cancellation.

73 Two decisions of the Administrative Appeals Tribunal (Wang and Minister for Immigration and Multicultural Affairs [2002] AATA 499; (2002) 35 AAR 185 (Senior Member Handley) and Sack and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 675 (Deputy President Purvis)) have come to different conclusions. The reasoning in these decisions is based upon provisions considered in this Court in Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524 and Watson v Uniframes Ltd & anor [1994] FCA 880; (1994) 55 FCR 556. However, those decisions were concerned with legislation containing the phrase "commencing on the day" in s 83A of the Broadcasting Act 1942 (Cth) and "beginning on the day" used in subs 439A(5) of the Corporations Law 1989. For the reasons I have given the phrase "commencing at the time specified in the notice" cannot be equated with the phrases "commencing on the day" or "beginning on the day". They do not specify a point in time which becomes the commencement of a period but identify a day without specifying any point in time on that day. Darwin and Watson deal with the question of whether that day is to be included not with the identification of a point in time. In my opinion, both Wang and Sack were wrongly decided and should not be followed.

74 Section 36 of the Acts Interpretation Act 1901 (Cth) provides that where a period of time dates from a given day the period shall be calculated exclusive of such day. However, for the very reason that the present period is calculated from a "time" rather than a "day" this section may have no application in the present case. In any event the section is not relied upon before us by the Minister other than for the proposition, with which I agree, that the policy or purpose of s 36 is consistent with the construction of s 135 of the Act to which I have arrived.

75 The question of law referred to the Court for consideration should be answered: "No".

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

Associate:

Dated: 27 March 2003

Counsel for the Applicants:	N Poynder
Solicitors for the Applicants:	Dominic David Stamfords
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 March 2003
Date of Judgment:	27 March 2003