Wang and Ors and Minister for Immigration and Multicultural Affairs [2002] AATA 499 (21 June 2002)

Last Updated: 24 June 2002

DECISION AND REASONS FOR DECISION [2002] AATA 499

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos V2001/1135

GENERAL ADMINISTRATIVE DIVISION ) V2001/1136 V2001/1137

Re PI LAIN WANG & KWOK SHU WONG & PUI LING WONG

Applicants

And MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 21 June 2002

Place Melbourne

Decision It is decided- 1. The period of 90 days referred to in s 135(4)(b) of the Migration Act 1958 (Cth) ("the Act") commenced on 4 May 2001 and ended on 1 August 2001. 2. The decisions under review were made by the Minister on 2 August 2001. Pursuant to s 135(4) of the Act, the Minister is not to proceed with the decision to cancel the applicants' visas.

...........Sgd Mr J Handley..........................

Senior Member

CATCHWORDS

Migration - Business skills visa - whether decision to cancel was made within 90 days - whether period of 90 days commenced on day notice given or from day after - decision of Minister on 91^st day - Minister cannot proceed with cancellation

Migration Act 1958 (Cth) - ss 75, 134, 134(1) and (2), 135(1), (1)(b)(I), (3), (4), (4)(b) and (5), and 136

Acts Interpretation Act1901 (Cth) - s 36

Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 644

Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1

Darwin Broadcasters P/L v Australian Broadcasting Tribunal (1990) 95 ALR 138

Re Potier v Minister for Immigration & Multicultural Affairs [2000] FCA 503

Watson v Uniframes Ltd & Another (1994) 55 FCR 556

REASONS FOR DECISION

21 June 2002 Mr J. Handley, Senior Member

1. The applicants applied pursuant to s.136 of the Migration Act 1958 ("the Act") to review a decision made by a delegate of the Minister on 2 August 2001 to cancel the applicant's Business Skills visa, pursuant to s.134 of the Act.

3. The applicant sought review of the decision on the basis that the requirements of s.134(1) and or (2) of the Act have not been satisfied. Additionally, the applicant argues that the decision to cancel the visa was made beyond the period of 90 days prescribed by s.135(4)(b) of the Act.

4. On 9 May, a hearing was convened only with respect to the issue of whether the decision to cancel was made at the end of the period of 90 days. Evidence was not heard and the matter proceeded by way of legal argument (the parties having previously lodged written submissions). Mr Gibson appeared on behalf of the applicant and Mr Cadman appeared on behalf of the respondent.

5. The background to the application may be briefly summarised as follows-

6. In the year 2000 and in 2001, the respondent conducted a review into the applicant's business activities in Australia. Apparently not being satisfied if the provisions of s.134 of the Act were satisfied, a decision was made on 30 March 2001 to give the applicant an opportunity to comment on the proposal to cancel the visa and to submit reasons why the decision should not be implemented per s 135(1). By reason of the applicant being an Australian resident and the notice being given in Australia, the applicant had 28 days to make comments and representations.

7. The Migration Regulations provide that where a notice is given in writing, any time limit within which a person is offered the opportunity to respond or undertake any act commences 7 days after the date of the applicable notice. In the present case the relevant notice (page 600-604 of T-documents) is dated 30 March 2001. Seven days, thereafter, is 6 April 2001. The notice calls for any response "by 4 May 2001". A period of 28 days (as prescribed by s.135(1)(b)(i) of the Act exists between 6 April 2001 and 4 May 2001).

8. On 2 August 2001, the respondent made a decision to cancel the Business Skills Visa (pages 5-6 T documents). The applicant takes issue with the notice and submits that it was made more than 90 days after the date specified by the notice (4 May). Having regard to the provisions of s.135(4), the applicant asserts that the Minister cannot proceed with the decision to cancel the visa.

9. The respondent submitted that the period of 90 days commenced on 5 May 2001 and the period of 90 days did not expire until midnight on 2 August 2001. The respondent asserts that the decision was made within time.

10. The application calls for interpretation of s.135 of the Act and s.36 of the Acts Interpretation Act 1901 (Cth), which are relevantly recorded below.

11. Section 135 of the Act says 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 commending 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".

12. Section 36 of the Acts Interpretation Act 1901 says as follows-

" (1) Where in an 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.

(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place".

The Written Submissions

13. Mr Gibson argued that s.36 of the Acts Interpretation Act 1901 did not apply in the computation of the applicable period, because of the language used at s.135(4)(b). He submitted that the words "commencing at the time specified in the notice" amounted to the period of 90 days commencing on 4 May 2001. He relied on Federal Court Decisions of Darwin Broadcasters P/L v Australian Broadcasting Tribunal (1990) 95 ALR 138 ("Darwin Broadcasters") and Watson v Uniframes Ltd and Another (1994) 55 FCR 556 ("Watson").

14. It was submitted that both decisions examined the language of the applicable legislation to determine the commencement of an applicable period of time. Specifically, the Darwin Broadcasters decision equally applied because it provided a basis for not applying the provisions of the Acts Interpretation Act 1901.

15. Additionally, it was submitted, that if it was found that there was any ambiguity in the legislation (which was specifically denied) that a construction of the legislation, which benefits the applicant, should be applied.

16. Insofar as the applicant was aware, the respondent would submit that the period of 90 days can only commence after the earlier period of 28 days expired (refer s.135(1)(b)(i)). It was submitted that both sections were not sequential, but were concurrent. That is to say, it was submitted that on the applicant's construction of sub-section (4), the commencement date of 4 May would be on the 28^th day of the period prescribed by sub-section (1)(b)(i). Mr Gibson submitted that there was no mischief in this construction and this interpretation was permissible.

17. In his written submissions, Mr Cadman argued that the decision made on 2 August 2001 was a decision made within a 90 day period "commencing at the time specified in the notice". It follows, he submitted, that the Minister had made a decision within time. He submitted that the holder of a visa is permitted 28 days under s.135(1)(b)(i) to make representations. The 90 day period, applying in sub-section (4), commences only at the expiration of the 28 day period. It followed, he submitted, that the 28 day period expired on 4 May 2001. Having regard to the provisions of s.36 of the Acts Interpretation Act 1901, the 90 day period commenced on 5 May 2001.

18. It was submitted that if the 28^th day of the first applicable period was the first day of the subsequent 90 day period, the consequences to an applicant might be that the Minister could not consider any representations made on the 28^th day. Alternatively, the applicant could be denied the full benefit of 28 days to prepare and provide submissions and/or the Minister could be denied the opportunity to use the entire period of 90 days to make a decision.

19. Insofar as the applicant relied on the Federal Court Decisions of Darwin Broadcasters and Watson, Mr Cadman submitted that the present circumstances could be distinguished. He submitted that the 90 day period commenced "at the time" specified by the notice, not "on the day" of a date specified in the notice. He further submitted that section 36 of the Acts Interpretation Act 1901 applied. Mr Cadman relied on recent Federal Court decisions, who found that s.36 did apply in the calculation of applicable periods with respect to Bridging Visas (refer Re Potier v Minister for Immigration & Multicultural Affairs [2000] FCA 503 ("Potier") and Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 644 ("Chen")).

The Oral Submissions

20. At the hearing on 9 May 2002, Mr Gibson expanded on his written submissions and submitted the section that the whole of s.135 should be interpreted beneficially in favour of the applicant being the holder of a visa. Mr Gibson pointed to the provisions of ss (3) and (5) and the prohibition upon the Minister making decisions beyond the 90 day period.

21. With respect to the words that appear within ss (4), Mr Gibson submitted that they should be given their plain literal meaning. He submitted that if it was intended that the commencing day of the 90 day period was 5 May, the legislation would have used language equivalent to "commencing on the day after ....." or "commencing at the expiration of ....." or "from but not including ......". He submitted that because a specified date was recorded in the initial notice, the words "commencing at the time specified in the notice" points to the 90 day period commencing from 4 May. He submitted that there was no warrant in the circumstances to compute the applicable 90 day period by reference to the day after 4 May, as was the respondent's submission in its reliance upon s.36 of the Acts Interpretation Act 1901.

22. Mr Cadman submitted that the whole of s.135 of the Act should be considered in order to give meaning to what was intended by ss (4). He pointed to ss (2), which gave a visa holder the opportunity to make representations "within" a period of time specified in the applicable notice. It followed that visa holders had the opportunity to lodge submissions up to the expiration of the last day of the 28^th day period, being 4 May. It followed, therefore, that the 90 day period could not commence on that day as it was still within the period permitted for making submissions to the Minister. Upon this analysis - that the word "on" as appearing in the Darwin Broadcasters and Watson decisions- these cases could not provide comfort to the applicant because that word, literally interpreted, meant "on" or "during" a particular day. The words "the time" are referable to the same words as they appear in ss (2). The word "at" permits the application of section 36 and therefore computing the commencement of the 90 day period from the day after the date specified in the initial notice.

Decision & Reasons For Decision

23. At first observation, a lay person might readily be confused as to why the applicants, the relevant bureaucracy, the legal representatives for both parties and the Tribunal would invest and commit effort and resources into legal analysis as to whether a period of 90 days commences on 4 May 2001 or 5 May 2001. The answer lies in the catastrophe the applicant would suffer (subject to a review on the merits of the decision to cancel the visa).

24. There being no dispute between the parties that the period of 90 days expired at midnight on 1 and 2 August respectively, if the 90 day period commenced on 4 or 5 May respectively, any finding by this Tribunal that the 90 day period commenced on 4 May would result in a finding under s 135(4) of the Act. The result being that the decision the Minister made to cancel the applicant's visa was not made within time. In those circumstances, the Minister is then prohibited from proceeding with the cancellation.

25. Section 135 of the Act may be briefly summarised as follows - The Minister must provide a visa holder with a notice issued under s.134 of the Act, if there is a proposal to cancel the visa. The Minister must invite the visa holder to make representations and - relevantly - if the visa holder is in Australia the period within which representations can be made is 28 days after the notice is given. Having regard to the Migration Regulations, a further 7 days is added to the period of 28 days where the notice is "given" by pre-paid mail. Subject, therefore, to the period of time between posting the notice and its receipt, a period greater than 28 days might be available to a visa holder to make representations. Whilst the Minister must give notice under ss (1), visa holders "may" make representations within the period specified within the notice (ss (2)). The Minister must then give consideration to any representations (ss (3)).

26. Sub-section (4)(b) is relevant to the current circumstances and for the purpose of the present analysis, it should be restated as follows, namely-

"(4) if

(a) ....

(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".

27. The expression "the time" appears in sub-section (2) and appears also in sub-section (4)(b). Its place within ss (2) suggests that the words refer to a "period" of time, whereas the use of the same words in ss (4)(b) suggest a "point in" time. A similar or uniform interpretation to the words "the time" in each of the sub-sections would produce absurdity.

28. In the interpretation of legislation, the High Court has recognised that the same words might have differing meanings within the same section. In Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at page 15 ("Clyne") the Court said-

"...there is a presumption that in a statute the same word is always used with the same meaning, especially when it is used more than once in the same section. However, it is now settled that presumption readily yields to the context and, as Gibbs J noted in McGraw - Hinds (Aust) Pty Ltd v Smith (1979) 53 ALJR 423 at 425: It is well recognised that a word may be used in two different senses in the same section of the one Act".

29. I would say further that the expression "the time", as it appears in ss (2) is given its meaning not only by context, but by the word "within" as it immediately proceeds these words. The entire expression namely, "within the time" is, in the circumstances, clearly referable to a period of time.

30. The expression "the time", as it appears in ss (4) is given its meaning by the preceding word, namely "at". The entire expression, namely "at the time" is clearly, in my view, referable to a point in time.

31. It follows, therefore, that the presumption of words within the same section having the same meaning must in these circumstances be rebutted. As the Court said in Clyne, at 15, the "presumption readily yields to the context".

32. I have concluded that the submissions made on behalf of the applicant are sound and should be preferred.

33. The use of the expression "at the time" as appears in sub-section (4) is unfortunate and preferably some expression giving greater certainty could easily have been substituted. I am influenced by the word "commencing", as it immediately precedes the expression "at the time". The word "commencing" is a term of everyday language and needs no special or legal interpretation. It means "to commence" or "beginning". On the analysis given above to the words "at the time", 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.

34. Although the words are different, the relevant interpretation is analogous to the discussion of Beaumont J in Darwin Broadcasters & Davies J in Watson.

35. In Darwin Broadcasters, Beaumont J discussed the words "relevant period" which the Broadcasting Act defined as a period of 60 days, "commencing on the day on which the notice is given". His Honour said, at 141-

"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. In the first place, the Acts Interpretation Act applies where the period is to date "from" a given day, act or event. This can, I think, be distinguished from a provision that period is to commence "on" that day. Even if that not be so, the question still remains whether s 83A(11) has indicated a "contrary intention" within the meaning of the Acts Interpretation Act. In my opinion, such an intention does appear from the choice of a language used in s 83A(11).

36. The expression "commencing on" does not exist within ss (4), but there is a similarity of intent and application, in my view, between those words and the words commencing "at the time". For the reasons given above, the words may be understood and interpreted as meaning commencing or beginning at a point in time. For reasons equally given in Darwin Broadcasters, I am of the opinion that s 36 of the Acts Interpretation Act 1901 does not apply. The language of ss (4) does not indicate that the period of time commences "from" a given day, act or event. For reasons given above I am of the view that the applicable period of time commences "at" a point in time specified in the notice, namely 4 May 2001. Additionally, I would say that if the Parliament intended that the period of time commenced - relevantly - on 5 May it would not have used the expression "commencing at the time". Instead it would use language that is either more certain in its intention or adopt language consistent with s 36 of the Acts Interpretation Act 1901.

37. The respondent submitted that the language of ss (4) need not be consistent or the same as s 36 of the Acts Interpretation Act 1901. This may be so, but the opportunity to not regard s 36 exists as the section itself specifically permits exclusion if the contrary intention appears. That contrary intention can only appear from an interpretation of the section. Section 36 can otherwise apply to this and other Acts of Parliament, subject to context. It is wrong, therefore, to submit that without qualification the section applies to the present case. It was submitted that the Federal Court recently said so in decisions of Potier and Chen. The Federal Court certainly did find s 36 applied in the context of those applications. It did so by reference to s 75 of the Act, in its application to a Bridging Visa and then because of the language used in s 75(1).

38. Section 75 of the Act provides that where a non-citizen "makes" an application, the applicable period of time commences on the day after the applicant "makes" the application. The court decided that the "making" of an application for a Bridging Visa was an "act" or "event" within the meaning of s 36 of the Acts Interpretation Act 1901. A finding of that type upon an analysis of a different section, with respect to a different type of visa, is very different to the present circumstance. At the risk of labouring this point, or being repetitious, ss (4) refers to the period of 90 days "commencing at the time specified in the notice". It is specific as to when the period commences.

39. I acknowledge the respondent's submissions that the period of 90 days can only commence after the expiration of the first period of 28 days. I have little doubt that the legislation intends this for good practical and policy reasons. However, I concluded upon the above interpretation that the first day of the 90 day period necessarily commences on the last day of the preceding 28 day period. This could have the practical consequence of denying a visa holder one day to complete any representations. In the event that the Minister made his decision on the first day of the 90 day period, the Minister could do so without the benefit of representations that the applicant might have otherwise submitted on the 28^th day.

40. Nonetheless, if there is any ambiguity, the liberties and rights of visa holders should be acknowledged and preserved. A construction that ensures those ideals are honoured, is to be preferred.

41. In all of the circumstances, I am satisfied that the 90 day period within which the Minister had the opportunity to cancel the visa commenced on 4 May 2001 and expired at midnight on 1 August 2001. The decision made on 2 August 2001 was not made within the 90 day period and the Minister cannot proceed with the cancellation.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed: Katherine Navarro...............................................

Associate

Date/s of Hearing 9 May 2002

Date of Decision 21 June 2002

Counsel for the Applicant Mr J Gibson

Solicitor for the Applicant Jonathon Wong & Associates

Counsel for the Respondent Mr P Cadman

Solicitor for the Respondent Blake Dawson Waldron