Eia18 v Minister for Home Affairs
[2021] FCCA 613
•30 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EIA18 v MINISTER FOR HOME AFFAIRS & ANOR | [2021] FCCA 613 |
| Catchwords: MIGRATION – Protection (Class XA) Subclass 866 visa – procedural fairness – whether there was a failure to provide documents or information relevant to the Tribunal’s assessment of the time of notification of the delegate’s decision – whether the Minister’s notification of its intention to cancel the applicant’s visa was effective – consideration of section 494D of the Migration Act 1958 (Cth) – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.109, 127, 494B, 494C, 494D Migration Regulations 1994 (Cth), rr.2.42, 2.55 |
| Cases cited: Butt v Minister for Immigration and Border Protection [2014] FCA 1354 |
| Applicant: | EIA18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2519 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 14 July 2020 |
| Date of Last Submission: | 14 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 30 March 2021 |
REPRESENTATION
| Counsel for the applicant: | Mr Yuile |
| Solicitors for the applicant: | Hanna Advisory |
| Counsel for the respondents: | Ms Campbell |
| Solicitors for the respondents: | HWL Ebsworth Lawyers |
ORDERS
The applicant’s application filed on 22 August 2018 and as amended on 23 June 2020 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed, if not agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2519 of 2018
| EIA18 |
Applicant
and
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) in which the Tribunal concluded that it lacked the jurisdiction to consider an application for review filed by the applicant.[1]
[1] Court book page 96.
Background
The applicant was granted a Protection (Class XA) Subclass 866 visa (“the visa”) on 10 September 2012.[2]
[2] Supplementary court book page 46.
On 29 June 2017, a delegate of the first respondent (“the Delegate”) issued a Notice of Intention to Consider Cancellation (“NOICC”) of the applicant’s protection visa pursuant to section 109 of the Migration Act 1958 (Cth) (“the Act”).
It was common ground that the NOICC was sent by hard copy post to an address in Queensland. Whilst I accept that the grounds upon which the NOICC was based is not relevant for present purposes, it is relevant to note that the NOICC invited the applicant to provide a written response to the NOICC within 14 days of the day after which the applicant was taken to have received it.[3]
[3] Court book page 4.
The NOICC also contained the following information:
Deciding whether to cancel your visa is a two-step process. Firstly, a delegate will decide whether there has been non-compliance in the way specified in this notice. Your written response on this aspect will be taken into account.[4]
If the delegate decides that there was not non-compliance, your visa will not be cancelled. If the delegate decides there was non-compliance, a decision will be made on whether to cancel your visa. Your written response on this matter will also be taken into account.[5]
[4] Court book page 4.
[5] Court book page 5.
In addition, the NOICC relevantly contained the following:
You are also required to keep me informed of your residential address and any change in your residential address up until the time a decision about whether to cancel your visa is made. (emphasis added)[6]
[6] Court book page 6.
The applicant responded to this correspondence by email from a ‘Hotmail’ email address.[7] Whilst the content of that response is not relevant for present purposes, it is relevant, as will become apparent, to note that:
a)that response came from the applicant directly and not from his representative; and
b)nowhere in that response did the applicant indicate that the address to which the NOICC had been sent was incorrect, or indeed that he had appointed a representative to act on his behalf in relation to the cancellation process.
[7] Court book pages 12 to 31.
It was common ground that on 29 March 2018, the Delegate cancelled the applicant’s protection visa under section 109 of the Act and sent a notification of cancellation to the same address to which the NOICC had been sent (“the letter of cancellation”). A copy of the notification letter was also sent to the same ‘Hotmail’ email address from which the applicant had provided his written response to the NOICC.[8]
[8] Court book pages 24 to 47.
The letter of cancellation advised the applicant of his rights of review and noted that the time frame for such a review was 28 days from the date on which the applicant was taken to have received that letter.[9]
[9] Court book pages 26 and 27.
It was common ground that the letter of cancellation was not delivered to the applicant and was returned to the Department of Home Affairs (“the Department”) undelivered.[10]
[10] Court book page 48.
On 24 May 2018, the Department sent a second notification letter to the applicant at a different address in Queensland.[11] The letter was also emailed to the applicant’s ‘Hotmail’ email address.[12] Aside from the date of the letter, the letter sent on 24 May 2018 was in identical terms to the letter sent on 29 March 2018. It is self-evident that the 24 May letter was sent to the applicant after the expiry of the period within which the applicant could have filed a review application in respect of the 29 March 2018 letter.
[11] Court book pages 49 to 62.
[12] Court book page 64.
The applicant acknowledged that the letter dated 24 May 2018 was received by him on 31 May 2018.[13]
[13] Applicant’s outline of submissions filed on 23 June 2020 at paragraph 9; Court book page 57.
The applicant filed an application for review with the Tribunal on 12 June 2018.[14]
[14] Court book pages 58 and 59.
By letter dated 22 June 2018, the Tribunal invited the applicant to make submissions on whether it had the jurisdiction to deal with his application for review.[15] The applicant, by his representative, provided a response on 29 June 2018.[16]
[15] Court book pages 82 to 85.
[16] Court book pages 86 to 88.
On 19 July 2018, the Tribunal decided that it did not have jurisdiction in the matter on the basis that the applicant’s application was filed out of time.[17]
[17] Court book pages 95 to 108.
The applicant sought a review of the Tribunal’s decision in this court by an application filed on 22 August 2018 and amended on 23 June 2020. The applicant raised two grounds of appeal.
Ground one
The Administrative Appeals Tribunal (‘The AAT’) in its capacity to review, did not afford the applicant procedural fairness, therefore resulting in a decision affected by jurisdictional error.
Particulars
(a)The AAT provided the applicant with an invitation to comment on validity (sic) of the application for a review of a cancellation of a Protection Visa on 22 June 2018.
(b)The particulars in the invitation to comment outlined the date on which the primary decision was posted and the timeframes for a valid application to be put forth.
(c)The particulars did not outline previous notification attempts that had not been disclosed to the applicant.
(d)The AAT made a decision that the Tribunal does not have jurisdiction in this matter on 19 July 2018.
(e)The Invitation to comment on the validity of application for review did not outline all the particulars relied upon in the AAT decision record.
(f)The absence of these particulars formed the basis of the Tribunal’s decision, to conclude that it does not have jurisdiction in this matter.
(g)The particulars left out of the invitation to comment are found in para [6], [8], [9] and [11] of the AAT decision record.
(h)The applicant was not given an opportunity to respond to the particulars referred to in the above ground (Particular no.1(g)).
(i)Therefore, the Tribunal denied the applicant procedural fairness in their decision to conclude that the Tribunal did not have jurisdiction in the matter.
(j)Therefore, constituting jurisdictional error.[18]
[18] Applicant’s amended application filed on 23 June 2020 pages 3 and 4.
In essence, by ground one, the applicant claimed that the Tribunal failed to afford the applicant procedural fairness by failing to provide documents or information relevant to the Tribunal’s assessment of the time of notification of the delegate’s decision. It was submitted for the applicant that this failure deprived the applicant of ‘material that he could have used to improve his arguments about notification.’[19]
[19] Applicant’s outline of submissions filed on 23 June 2020 at paragraph 2(a).
It was common ground that the limitations on procedural fairness obligations contained in the Act do not apply in considering whether the Tribunal has jurisdiction to deal with the applicant’s application for review.[20] However, the first respondent submitted that the Tribunal satisfied its obligation to provide the applicant with procedural fairness by its letter of 22 June 2018 and its consideration of the applicant’s submissions dated 29 June 2018.[21]
[20] Respondents’ outline of submissions filed on7 July 2020 at paragraph 34.
[21] Respondents’ outline of submissions filed on7 July 2020 at paragraph 34.
The applicant took issue with this submission. It was said for the applicant that procedural fairness in this case required that the applicant be given the opportunity to comment on any matter which was credible, relevant and significant to the decision.[22] In particular, it was submitted for the applicant that he was entitled to ‘comment on information otherwise before the decision-maker, not known to the applicant and adverse to his interests in the question to be decided.’ [23]
[22] Applicant’s outline of submissions filed on 23 June 2020 at paragraph 15.
[23] Applicant’s outline of submissions filed on 23 June 2020 at paragraph 15.
It was submitted that the fact the Department had made its own enquiries of the applicant’s current address once the 29 March 2018 letter was returned undelivered, and found the applicant’s ‘new address’, was a matter which was not put to the applicant for consideration and comment, and ought to have been. The documents in the supplementary court book evidence the steps taken by the Department in consultation with Centrelink to obtain current addresses for the applicant. It is submitted for the applicant, that this information ‘which was never given to the applicant or mentioned in any fashion, was of central importance to the question of whether the applicant had been properly notified.’[24]
[24] Applicant’s outline of submissions filed on 23 June 2020 at paragraph 21.
The applicant further submitted that:
a)the communications between the Department and Centrelink was information that was relevant to the question of whether the notification provisions of the Act had been properly complied with;
b)had he had access to this information, he may have made different submission on the question of whether he had been properly notified; and
c)natural justice required that these matters ought to have been put to the applicant and he ought to have been given an opportunity to consider them.
Similarly, it was submitted that the fact the Tribunal had regard to prior communications between the Department and the applicant in determining jurisdiction was not put to the applicant, even though it was relevant to the question of notification.[25] It was submitted that the failure by the Tribunal to put this to the applicant, deprived the applicant of the opportunity to make submissions about this issue and its relevance to the question of notification.
[25] Applicant’s outline of submissions filed on 23 June 2020 at paragraph 24.
It was further submitted that had these matters been put to the applicant, there was a realistic possibility that he could have made ‘additional and more targeted submissions’ which could have impacted on the outcome of the Tribunal’s decision as to whether it had jurisdiction or not.[26]
[26] Applicant’s outline of submissions filed on 23 June 2020 at paragraph 25.
It was therefore submitted for the applicant that these failures gave rise to jurisdictional error.
In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at [28], the Full Court said:
… if information on some factor personal to that person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it …
I accept that the applicant was not provided with the communication between the Department and Centrelink about requests for contact details for the applicant, nor was he given the gist of the contents of those documents.
The applicant asserted that the cancellation notice was not effectively served because it was not served at an address provided by the applicant, being the application provided by him in his initial protection visa application.
It is possible that, had the applicant been made aware that the Department had enquired about his current address from Centrelink, he may have raised this as an issue in his response to the Tribunal on 29 June 2018. However, the applicant did receive the initial NOICC at an address other than the address he had nominated in his initial visa application. He was therefore on notice that the Department clearly had a different address on record for him. In those circumstances, the manner in which the Department came to have this address was not relevant.
Moreover, the NOICC, as set out above, made it clear that the responsibility was on the applicant to advise the Department of any change in his contact details. He did not do so. In those circumstances, the applicant cannot now properly assert that the failure by the Tribunal to put him on notice that the Department had sought out his current address from Centrelink, both prior to issuing the NOICC, to which he responded, and then again once the cancellation notice was returned undelivered, amounted to a breach of procedural fairness.
For these reasons, I find that there has been no breach of procedural fairness as alleged. Consequently, ground one is not made out.
Ground two
The Tribunal erred in finding that the purported notification of the applicant in March 2018 was effective:
Particulars
(a)Neither notification letter was sent to an address “provided to the Minister by the recipient for the purposes of receiving documents”, meaning that neither was effective under s 494B of the Act. The applicant did actually receive notification with the second letter in May 2018, and time began to run from then, meaning that the application for review to the Tribunal was in time.
(b)Alternatively, the second notification letter was a “re-notification” of the decision to cancel. Again, time began to run from when that letter was deemed to have been received, in May 2018. The application for review to the Tribunal was within time.[27]
[27] Applicant’s amended application filed on 23 June 2020 page 5.
By ground two, the applicant initially asserted that the 29 March 2018 cancellation notice itself was deficient in that by sending it to the applicant at the first Queensland address, the first respondent did not comply with section 494B of the Act. Therefore, it was submitted that the 28 day time limit within which the applicant could file an application for review did not commence running until the applicant received the cancellation notice in May 2018.
It is clear from the documents in the supplementary court book that in June 2017, the Department sought information from Centrelink about the applicant’s current address. This was provided and is the basis upon which the first address was used to send the NOICC to the applicant. Having received a response to the NOICC and in the absence of any information updating the applicant’s contact details, not surprisingly, the March cancellation notification was also sent to the first address. It was conceded that the cancellation notice was received and was returned to the Department undelivered.
The Department then sought updated information about the applicant’s home address from Centrelink and the May 2018 cancellation notification was then sent to the second address, which was also provided by Centrelink. It was common ground that the applicant was not aware that inquiries as to his address were made either in June 2017 or in May 2018.
At paragraph 4 of its decision record, the Tribunal said:
The Tribunal finds that the applicant is taken to have been notified of the decision on 11 April 2019: [s494C of the Act]. Therefore the prescribed period to apply for review ended on 8 May 2018.[28]
[28] Court book page 97 at paragraph 4.
Section 494C relevantly provides that it applies ‘if the Minister gives a document to a person by one of the methods specified in section 494B …’
It was submitted for the first respondent that the Tribunal incorrectly referred to section 494C and therefore, by reference, section 494B.
Section 127 of the Act requires the Minister to notify an applicant of the cancellation of a visa ‘in the prescribed way’. The correct provision which regulates the giving of a notification of a visa cancellation decision under the Act is regulation 2.55 of the Migration Regulations 1994 (Cth) (“the Regulations”) and therefore, it is submitted for the first respondent that neither section 494B nor section 494C apply.
Regulation 2.42 relevantly states:
(1)If the Minister cancels a visa under section 109 of the Act, the Minister must notify the former holder of the visa in writing that the visa has been cancelled.
(2)A notification under subregulation (1) must set out the ground for the cancellation.
Note 1 Regulation 2.55 applies to the giving of a document relating to:
· the proposed cancellation of a visa under the Act; or
· the cancellation of a visa under the Act; or
· the revocation of the cancellation of a visa under the Act.
Note 2…
Regulation 2.55 then relevantly states:
(2) This regulation applies to:
(a)the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
…
(3)… for a document mentioned in paragraph(1)(a) … the Minister must give the document in one of the following ways:
(a)…
(b)…
(c)by dating it and then dispatching it:
(i) …
(ii) by prepaid post or by other prepaid means;
to the person’s last residential address … known to the Minister …
(d) by transmitting the document by:
(i) …
(ii) email; or
(iii) ..
to the last … email address … known to the Minister.
…
(7)If the Minister gives a document to a person by dispatching it by prepaid post … the person is taken to have received the document:
(a)if the document was dispatched in Australia to an address in Australia – 7 working days … after the date of the document; or
(b)…
(8)If the Minister gives a document to a person by transmitting it by … email … the person is taken to have received the document at the end of the day on which the document is transmitted.
(9) If:
(a)the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and
(b)the person nonetheless receives the document or a copy of the document;
the Minister is taken to have given the document to the person and the person is taken to have received the document:
(c)at the time specified by this regulation for that method; or
(d)if the person can show that he or she received the document at a later time – at that later time. (emphasis added)
In Butt v Minister for Immigration and Border Protection [2014] FCA 1354, Mortimer J concluded that section 127 of the Act and regulation 2.55 of the Regulations apply to cancellation notifications. At paragraph [47] of that decision, her Honour considered the nature and effect of the cancelation provisions in Division 3 of Part 2 of the Act. Relevantly, she noted:
In summary, the effects of cancellation of a visa on an individual are significant. The scheme of the Migration Act then creates a tightly regulated merits review regime, access to which is dependent on the operation of non-extendable time limits… Reinforcing the tightness of the merits review scheme are the deeming provisions in both s 494C and reg 2.55, creating the situation that a person’s review rights do not depend on actual notification.[29]
[29] Butt v Minister for Immigration and Border Protection [2014] FCA 1354 at [47].
…
… In a scheme as detailed and comprehensive as the Migration Act, and in relation to an issue as critical as notification of cancellation of a visa, the scheme should be construed in a way which promotes certainty in the operation and application of its provisions. The link made by the scheme between notification and an applicant’s review rights, together with the effect of the deeming provisions, means the scheme should be given an operation that is as specific and clear as possible.[30]
[30] Butt v Minister for Immigration and Border Protection [2014] FCA 1354 at [48].
Ultimately, Mortimer J concluded that regulation 2.55 applied to cancellation notifications rather than section 494B. Moreover, Mortimer J further concluded at paragraph [27] that there is no material difference between the effect of section 494B and regulation 2.55. I respectfully adopt Her Honour’s reasoning as equally applying in this case.
In oral submissions, the applicant conceded that regulation 2.55 was the proper provision in relation to notification in this case, not section 494B.[31]
[31] Transcript page 3 at lines 45 to 47.
Notwithstanding this concession, the applicant maintained that the Tribunal applied the wrong provision and that this error was material.[32] In Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421, Bell, Gageler and Keane JJ said:
Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.[33]
[32] Transcript page 4 at lines 1 to 4.
[33] Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421 at [46].
Bell, Gageler and Keane JJ also said:
The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.[34]
[34] Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421 at [2].
It was submitted for the first respondent that in circumstances where the time limits and deeming provisions specified in regulation 2.55 are the same or substantially similar to those in sections 494B and 494C, the Tribunal’s reference to the wrong provision was not material. For the following reasons, I agree.
In circumstances where:
a)the first respondent had sent the NOICC to the applicant’s home address in 2017;
b)the applicant had acknowledged receipt of that NOICC at that address by virtue of his response; and
c)the NOICC expressly made it clear that the applicant was required to advise the first respondent of any change in his address prior to a decision being made regarding the proposed cancellation;
by sending the cancellation notification to the applicant at the first address, the first respondent complied with its obligations under regulation 2.55 in that it dispatched the cancellation notification to the applicant at the applicant’s last residential address known to the first respondent.
I therefore find that the 29 March 2018 cancellation notification was a valid notification. The deeming provisions in regulation 2.55 provide that the applicant was deemed to have received the cancellation notification 7 days after the date of the letter. As the applicant did not file an application for merits review within the prescribed time, the Tribunal correctly determined that it lacked jurisdiction to hear the application subsequently filed by the applicant.
The fact that the first respondent sent a further letter on 24 May 2018 does not alter this conclusion.
The first respondent submitted that once the 29 March 2018 letter was sent, the power to validly notify the applicant of the cancellation had been spent.
Section 127(1) provides:
When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.
Once notification has been given in the prescribed way, there is nothing more for the first respondent to do.
The fact that in this case, the delegate of the first respondent appears to have ‘re-sent’ the cancellation notification letter does not alter this fact.
In Butt v Minister for Immigration and Border Protection [2014] FCA 1354, it was held that sending a confirmation of an email notification by registered post did not constitute a new notification with the consequence that a longer time frame for appeal was available. There it was held that the cancellation notification was sent by email. Consequently, the notification was deemed to have been received on the day that the email was sent, not 7 days later as the case would have been had the cancellation notification been sent by prepaid post.
In this case, a valid cancellation notification was sent by prepaid post to the applicant’s residential address last known to the first respondent. As a result, the deeming provisions in regulation 2.55 meant that it was deemed to have been received 7 days later, namely 5 April 2018. The deeming provisions operate irrespective of whether the letter was actually received. Hence, the applicant had until 3 May 2018 to seek a review of the cancellation decision.
Where the legislation has set up a strict time frame with non-extendable time limits within which to lodge a review application in relation to a decision to cancel a visa, a Department employee does not have the capacity to extend those time frames either intentionally or inadvertently through error.[35]
[35] Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552.
A possible cancellation of a visa is clearly a serious step. It is in that context that the legislation establishes a process by which the applicant is given notice of an intention to cancel, the opportunity to respond to that notice of intention, and then where a decision is made to cancel, the opportunity to seek a merits review within a non-extendable period.
In this context, the applicant was on notice that a serious step might be taken to cancel his or her visa. The applicant was also on notice of the requirement to keep the Department informed of their residential address. In the absence of such an obligation, one could imagine that an applicant seeking to avoid cancellation could simply continue to move residential and evade service of the cancellation decision. The deeming provisions, when read together with the requirement that the applicant keep the Department informed of their residential address, confronts this possibility.
For each of these reasons, I find that the cancellation notice sent on 29 March 2018 was validly given under regulation 2.55. The deeming provisions operated to deem that notification received. There is no scope for an extension of time, and in those circumstances, the Tribunal was correct to find that it had no jurisdiction.
The applicant did not established any jurisdictional error in this case, and consequently, ground two is not made out.
Section 494D issue
Whilst the applicant conceded that regulation 2.55 of the Regulations is the relevant notification provision, the applicant said that section 494D was relevant and that section was not dependent on the application of section 494B or 494C. The applicant submitted that section 494D therefore required that any notice be given to an authorised recipient once appointed.[36]
[36] Transcript page 5 at lines 3 to 12.
Section 494D(1) relevantly provides:
If a person (the first person) give the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.
It was submitted for the applicant that the fact that the NOICC was sent to an address other than that of the authorised recipient ought not to be taken as acknowledgement that the arrangement between the applicant and his representative had come to an end. This is particularly so where the applicant responded to the NOICC without legal assistance, is not legally trained and whose first language is not English.[37]
[37] Transcript page 9 at lines 18 to 29.
Notwithstanding its initial submission about the application of section 494D, in further written submissions, it appears that the first respondent conceded that if the applicant had appointed an authorised representative in relation to the cancellation process, then section 494D would have been engaged. However, it was submitted that no such appointment was made.
I agree with this submission.
Regulation 2.55(4) of the Regulations relevantly provides that in relation to a proposed cancellation or a cancellation of a visa:
(b)if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii)the Minister must give the document in one of the ways mentioned in subregulation (3).
This is a mandatory requirement. When read with section 127(1) of the Act, which provides ‘when the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way’, it is arguable that the only way that the first respondent can give notice of cancellation is in a manner prescribed by regulation 2.55, and there is no work for section 494D.
Notwithstanding the concession made by the first respondent, in my view, section 494D arguably does not apply to notifications required to be given under regulation 2.55.
But in any event, even if I am incorrect on this point, the applicant has not established that he provided written notice to the first respondent of the relevant details of an authorised representative. There is no evidence that the applicant provided any such notification upon receipt of the NOICC. On the contrary, as noted above, the applicant personally responded to the NOICC.
Moreover, I do not accept that the authorisation given by the applicant in the context of his protection visa application operated beyond the application process for a protection visa, and continued to have effect once the protection visa was granted.
Indeed, I note that the completed Form 956 contained the following:
Type of assistance
16Are you providing assistance with an application process, a cancellation process or specific matter? (tick one only)[38]
[38] Supplementary court book page 3.
The applicant/authorised representative then ticked the box marked ‘Application process’.
In the section headed ‘Declaration by client’ the client ticked the box marked:
Appointment – I declare that I have appointed the migration agent/exempt person named in Part A of this form to provide assistance with matters as indicated on this form.[39]
[39] Supplementary court book page 4.
It was submitted for the applicant that this argument ought not to be accepted having regard to the terms of section 494D(3), which provides that the applicant may ‘vary or withdraw the notice’ nominating an authorised recipient at any time. Moreover, it was submitted for the applicant that the Full Court of the Federal Court held in Le v Minister for Immigration and Citizenship (2007) 157 FCR 321 that section 494D(3) provides the only end point of authorisation when it said:
There is nothing in s 494D to suggest that the requirement of s. 494D(1), for the Minister to give documents to the Authorised Recipient, comes to an end otherwise than as provided for in s 494D(3). Thus, until an applicant withdraws a notice given under s 494D(1) or varies such a notice, for example by submitting a different person or perhaps a different address, the Minister must give documents to the Authorised Recipient.[40]
[40] Le v Minister for Immigration and Citizenship (2007) 157 FCR 321 at [21].
The Full Court went on to say that:
[It] may be that one of the objects of s 494D is to benefit applicants. The fact that, under s 494D(4), the Minister must give the Authorised Recipient notice of a communication with the applicant, suggests that some protection for an applicant is contemplated.[41]
[41] Le v Minister for Immigration and Citizenship (2007) 157 FCR 321 at [25].
It was submitted for the applicant that where the Department seeks to cancel a visa and the visa holder has an authorised recipient in their application for that visa, it affords the visa holder an amount of protection and certainty for the notice and all other correspondence to be sent to that authorised recipient.[42]
[42] Applicant’s supplementary outline of submissions filed on 24 July 2020 at paragraph 9.
It was further submitted for the applicant that the first respondent ought to be held to the requirements of the Act.[43] The fact that the cancellation related to the visa in respect of which the applicant had nominated an authorised recipient was enough to engage the requirement under section 494D.[44]
[43] Applicant’s supplementary outline of submissions filed on 24 July 2020 at paragraph 9.
[44] Applicant’s supplementary outline of submissions filed on 24 July 2020 at paragraph 10.
The applicant further submitted that it would be wrong to rely upon the content of the Form 956 itself as the basis of determining the scope of the applicant’s nomination of an authorised recipient.
The applicant relied upon the comments by the Full Court of the Federal Court in MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153 (“MZZDJ”). That case concerned a question as to whether proper notice of a decision had been given in circumstances where the applicant’s authorised representative had expressly requested that the Tribunal forward its decision to her at her email address and this was agreed to. Unfortunately, due to an oversight, it was not sent to her by email but rather to her postal address.
In that case, the Full Court noted that section 494D(1) required notification of the authorised recipient’s name and address; it did not specify a particular form.[45] The form itself did not have any ‘statutory role’.[46] Ultimately, the issue in MZZDJ was whether the request to notify the authorised representative by email constituted a variation within the meaning of section 494D(3A).
[45] MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153 at [24].
[46] MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153 at [25].
It was held that the variation can be permanent or temporary[47] and may be oral.[48] In coming to this view, the Full Court said:
the provisions should be given a practical operation so that they can achieve their purpose of ensuring there is effective notification to visa applicants.[49]
[47] MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153 at [33].
[48] MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153 at [34].
[49] MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153 at [34].
The present situation is distinguishable from that in MZZDJ. In MZZDJ, there was no question that the applicant had appointed an authorised recipient. The question at issue was whether the Tribunal had sent its decision to that authorised recipient at the specified address.
In the matter before me, it was clearly the case that the applicant had appointed an authorised representative for his initial visa application. The question is whether this appointment subsisted and remained in place such that the first respondent was required by virtue of section 494D to provide correspondence in relation to a potential cancellation of that visa a number of years later.
The obligation on the first respondent in section 494D(1) is limited by its terms. That is, a person may give written notice to the first respondent of the name and address of a person authorised to receive documents in connection with specified matters. Where this is done, the first respondent is required to provide that person with any document in connection with those matters that the first respondent would otherwise have given the applicant.
Thus, can it be said that a decision to cancel a protection visa is a matter that is part of the protection visa application, such that documents in relation to the cancellation process are documents in connection with the protection visa application process?
As noted in MZZDJ, the purpose of section 494D is to:
give applicants a readily accessible means of ensuring communication in relation to their visa applications is undertaken in the most effective manner if they do not wish, for whatever reason, to be entirely responsible for receiving communications and taking necessary action.[50]
[50] MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153 at [26].
Adopting the applicant’s submissions in this case would not have this effect, particularly in circumstances where a cancellation process may be initiated, as it was here, many years after the visa was initially granted.
When viewed in its totality, I find that the applicant appointed its representative as an authorised recipient in relation to documents relating to his protection visa application. Had he chosen to do so, he could, once he received the NOICC, have appointed a person to act on his behalf in relation to the cancellation process and nominated that person as the authorised recipient of information in relation to that matter. He did not do so.
As such, even if section 494D does apply, I do not find that the applicant in fact appointed a person as an authorised recipient such that sending the cancellation notice to him was ineffective under section 494D.
For each of these reasons, I find that ground two is not made out.
Conclusion
As neither ground of review is made out, I order that
a)The applicant’s application filed on 22 August 2018 and as amended on 23 June 2020 be dismissed; and
b)The applicant pay the first respondent’s costs in a sum to be fixed, if not agreed.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 30 March 2021
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