Huang v MIAC
[2011] FMCA 271
•6 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUANG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 271 |
| MIGRATION – MRT decision – application to Tribunal outside time limit after notification to agent – whether agent was authorised to receive correspondence – implied actual authority from circumstances of agency – Tribunal correctly found absence of jurisdiction – application dismissed. |
| Migration Act 1958 (Cth), ss.98, 280, 347, 494D Migration Regulations 1994 (Cth), reg.4.10 |
| Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Jalagam v Minister for Immigration [2008] FMCA 1417; 221 FLR 202 Jalagam v Minister for Immigration & Citizenship [2009] FCA 197 Jalagam v Minister for Immigration & Citizenship [2009] HCASL 190 NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 Russo v Aiello (2003) 215 CLR 643 Thornley v Tilley (1925) 36 CLR 1 |
| Applicant: | HONGZHE HUANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 8 April 2011 |
| Date of Last Submission: | 15 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience |
| Counsel for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3 of 2011
| HONGZHE HUANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
A delegate made a decision on 6 May 2010, which refused to grant a further Student (Temporary) (Class TU) visa to Mr Huang. Notice of the decision was posted to an address for correspondence given to the Department of Immigration in the visa application form. The address was that of Mr Wong, an agent engaged by Mr Huang to make the internet visa application on his behalf. On 15 June 2010, Mr Huang applied to the Migration Review Tribunal for review of the decision, but the Tribunal found that the strict 21 day time limit for application prescribed under s.347(1)(b)(i) of the Migration Act and Migration Regulations reg.4.10(1)(a) had expired on 7 June 2010. Mr Huang now disputes this conclusion, and seeks an order by way of mandamus to compel the Tribunal to exercise jurisdiction.
Only one aspect of the reasoning of the Tribunal was challenged before me, and the Tribunal’s discussion of the relevant legislation and its application to Mr Huang’s circumstances was not otherwise disputed. It is unnecessary for me to repeat those parts of its decision.
The present issue is whether, in fact and law, Mr Huang authorised
Mr Wong to include in the visa application a notification that Mr Wong was a person authorised to receive correspondence on behalf of
Mr Huang. For the reasons which follow, I have concluded that Mr Wong was authorised to give his own address for correspondence, and that the Tribunal’s refusal to exercise jurisdiction was therefore correct.The appointment of an authorised recipient for receiving correspondence in relation to a visa application is provided in s.494D:
494D Authorised recipient
(1)If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2)If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3)The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.
(4)The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.
(5)The Minister need not comply with subsection (1), or the requirement in subsection (4) to give a notice, if:
(a)the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
(b)the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
(c)the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).
I have previously considered this provision in the context of the making of a visa application on the internet, in Jalagam v Minister for Immigration [2008] FMCA 1417; 221 FLR 202. In that case, as in Mr Huang’s case, the notification of an authorised recipient was performed by an agent who completed an interactive form of visa application. I examined this procedure, and held that it was legally effective:
35. Section 45 of the Migration Act requires a non‑citizen “who wants a visa” to “apply for a visa of a particular class”. Section 46 sets out the requirements for a valid application for a visa, including that it “satisfies the criteria and requirements prescribed under this section”.
36. The Migration Act itself does not indicate any particular requirements or formalities in relation to the form of a valid application, thereby leaving it to the Regulations. Regulation 2.07 gives effect to detailed provisions in relation to the form of applications, which are set out in the parts of Sch.1 relevant to each particular class of visa, including that “an applicant must complete an approved form in accordance with any directions on it”.
37. The provisions of Sch.1 relevant to the present class of visa, are found in item 1128CA. This provides:
(3) Other:
…
(c) Application must be made:
(i) by posting the application (with the correct pre‑paid postage) to the post office box address specified in a Gazette Notice for this subparagraph; or
(ii) by having the application delivered by a courier service to the address specified in a Gazette Notice for this subparagraph; or
(iii) as an Internet application.
Note: An Internet application is taken to have been made at the time, identified using Australian Eastern Standard Time or Australian Eastern Standard Time incorporating Daylight Saving Time in the Australian Capital Territory; that corresponds to the time at which the Internet application is made: see regulation 2.10C.
38. The reference to an “Internet application” is explained in the definitions in reg.1.03 as:
Internet application means an application for a visa made using a form mentioned in paragraph 1.18 (2) (b) that is sent to Immigration by electronic transmission using a facility made available at an Internet site mentioned in subparagraph 1.18 (2) (b) (ii), in a way authorised by that facility.
Regulation 1.18(2)(b) provides:
(2) Each of the following is an approved form for use in making an application for a visa:
…
(b) a set of questions in an interactive computer program that is:
(i)approved by the Minister for use in making an application for the visa; and
(ii)made available at an Internet site operated under the authority of the Minister.
40. It is therefore clear, in my opinion, that the regulations prescribing the form of a valid visa application for the visa sought by Mr Jalagam, envisage a form of interactive internet application such as is in evidence before me. As I have found, this was completed by somebody unknown at Tan & Tan at the request of, and with the full authority of Mr Jalagam. As I have indicated, in its very terms the form included provision for a notification of a person appointed as authorised recipient, and this was completed so as to give notice of an appointment of Mr Yat Tan.
41. I can see no reason for construing s.494D as preventing the adoption by the Minister of a form of internet application which includes provision for a notification of the name of an authorised recipient in the same form. I reject the submission that s.494D must be read as requiring a written signature from the visa applicant appointing the authorised recipient. It may often be administratively appropriate for a written and signed notice to be required by the Department, before being satisfied as to a due appointment. However, I can find nothing in the terms or objects of s.494D which confines the Minister as to the manner in which he is to be satisfied that notice of an authorised recipient has been duly given. Nor can I find in s.494D any intention to exclude the normal presumption that Parliament intends to allow a person to act for the purposes of a statutory provision through an agent (cf. Christie v Permewan, Wright & Co Ltd (1904) 1 CLR 693 at 700, McRae v Coulton (1986) 7 NSWLR 644 at 663, and AB v LB (Mental Health Patient) [1980] 1 WLR 116 at 121, cited in Bennion FAR, Statutory Interpretation — A Code (2nd ed, Butterworths, 1992), at pp 799‑800). Considerations of convenience all point towards the section being intended to allow this.
42. Mr Jalagam’s solicitor referred me to Le v Minister for Immigration and Citizenship (2007) 157 FCR 321, [2007] FCAFC 20, where the Full Court referred to s.494D:
24 Nevertheless, an unequivocal requirement of s 494D(1) is that the Minister must give a document to the Authorised Recipient instead of to an applicant. Another unequivocal effect of s 494D(2) is that, by giving a document to the Authorised Recipient, the Minister is taken to have given the document to the applicant.
25 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. However, it is clear enough that the primary object of s 494D is to eliminate uncertainty as to whether a document has been given to an applicant. So long as the Minister has given a document to an Authorised Recipient, by a method that the Minister considers appropriate, that applicant is taken to have been given the document. That consequence flows whether or not the document comes to the attention of the Authorised Recipient. A fortiori, the consequence flows whether or not the document ever comes to the notice of the applicant. That certainty is of considerable advantage to the Minister in the administration of the Act.
26 Section 494D does not require that a document be given to the Authorised Recipient at the address contained in the written notice given by an applicant. So long as the document is given to the Authorised Recipient by a method that the Minister considers appropriate, the document is taken to have been given to the relevant applicant.
27 There is no warrant in the language of s 494D for concluding that, simply because the Minister concludes that an Authorised Recipient is no longer at the address specified in an applicant’s notice under s 494D(1), s 494D ceases to operate. Section 494D is triggered by an applicant giving written notice of the name and address of another person. It operates until that notice is varied or withdrawn under s 494D(3), putting aside the possibility of a fictitious name and address or the death of the Authorised Recipient to the knowledge of the Minister. Those cases do not apply here and nothing said here should be taken as having any application in such a case. (emphasis in original)
However, I cannot find anything in these paragraphs to the contrary of the construction which I suggest above.
My judgment was upheld by Edmonds J (see Jalagam v Minister for Immigration & Citizenship [2009] FCA 197). His Honour held:
36. There is no requirement in s 494D (or elsewhere) for the notice appointing the authorised recipient to be in any particular form; any notice in writing meeting the elements of subs 494D(1) will suffice. There is no requirement for the notice under subs 494D(1) to be signed at all – but even if there was a requirement that it be signed by the appellant, there would still be room for application of the presumption that the appellant could meet that requirement through an agent: McRae at 663D.
When dismissing an application for special leave (see Jalagam v Minister for Immigration & Citizenship [2009] HCASL 190), Heydon and Bell JJ said:
10. In the applicant's summary of argument it is contended that Edmonds J adopted a construction of s 494D(1) that is inconsistent with decisions of the Full Court of the Federal Court. The authorities to which the applicant refers do not deal with the question of construction with which the application is concerned. Contrary to the applicant's submissions in reply, there is no conflict between the decisions of the Full Court and Edmonds J with respect to the construction of s 494D(1). The applicant does not submit that Edmonds J erred in concluding that the written notice may be given to the Minister electronically.
The relevant parts of the visa application in the present matter, as reproduced in hard copy in the Court Book, show:
Residential Address Details
Give details of the Australian residential address that you are currently living at.
Address
[number deleted] JACK BRABHAM DRIVE
Suburb/Town
HURSTVILLE
State or Territory
New South Wales
Postcode
2220
Give details of the residential Address in your home country
Address
[address deleted]
Suburb/Town
HAIKOU
State or Territory
HAINAN ISLAND
Postcode
570201
Country
CHINA
Authorisation
Do you want to authorise another person to act and/or receive communication about this application on your behalf? This includes authorising the Department to send that person any communication, documents or notifications relating to the application that would otherwise have been sent to you.
Yes
If Yes, is this person:
Authorised applicant
Contact Details (Authorised person)
Provide the name and address of the person who is authorised on your behalf to receive all written communications about this application
Family name
WONG
Given Names
YU CHIANG
Address
[number deleted] OCEAN ST
Suburb/Town
PENSHURST
State or Territory
New South Wales
Postcode
2222
Receive health and character information
Do you want your authorised recipient to receive health and/or character information about you and/or your dependants that may arise or be revealed in the course of this application (for example, requests for medical investigation, other health information about you, or the results of criminal history checks)?
No
Note that health and character information will be sent to the residential address you specified on the previous page if you choose NOT to have it sent to your authorised recipient.
Communicating with the Department
In the course of deciding this application, we may need you to attend an Australian Government office overseas for an interview. If this occurs, which office would you prefer to go to?
Sydney City Office
Communicating with you
In the previous step you authorised another person to receive communications on your behalf.
Under Australian law, if you authorised recipient want to receive electronic communications from the Department, we require their consent. Immediately after lodging this application, you will be given the opportunity to contact your authorised recipient by email and invite them to provide that consent via the internet.
Authorised person E-mail address
E-mail address
[address deleted]
Facsimile number
[number deleted]
Until the Department receives consent from your registered migration agent to communicate be e-mail and/or fax, all written communications will be sent to your agent’s postal address. If they do not wish to consent to electronic communication, then no action on their part is necessary.
Counsel for Mr Huang conceded that the above parts of the visa application ‘gave’ the Minister “written notice of the name and address” of Mr Wong for the purposes of s.494D(1), and that they represented that he was a person “authorised by” Mr Huang to receive documents from the Department concerning the visa application, including the notice of decision. Counsel conceded that the legal effectiveness of the s.494D notice was not affected by the fact that the interactive visa application, including that notice, was completed by
Mr Wong and not by Mr Huang himself. The sole issue disputed by
Mr Huang was whether, in fact, Mr Wong held the authority from
Mr Huang, which he asserted to the Department, to give his own name and address as authorised recipient for correspondence.
Mr Huang’s evidence of his engaging and instructing Mr Wong was given cursorily in his affidavit, and he was not cross-examined on it. He said:
6.I had found private tutors to coach me in economics, mathematics and business and had taken intensive coaching under them prior to exams while I was at Taylor College and Cornell College. The woman’s name was “Rinmy”. I cannot remember the man’s name.
7.During my coaching sessions I asked Rinmy, “What IELTS score do I need to get into University. I have heard that it is 5.5-6” or words to that effect. Rinme told me of the IELTS website. Rinme also suggested that I contact an agent who she called “Cliff Wong”, and who I now know to be Wong Yu Chiang. She said, “Cliff Wong understands all the procedures. He can help you”, or words to that effect. She gave me his telephone number.
8.I telephoned Cliff Wong in I think January 2010. I said during that conversation, “I want to go to University. I need to know how to sit an IELTS test. I have not sat for one before in Australia,” or words to that effect. At that time I was worried about my visa which was soon due to expire, and I during my conversation with Cliff Wong I mentioned, “I need to renew my visa. It expires on 15 March 2010”, or words to that effect. Cliff Wong said to me, “Don’t worry, I can make the application for you.”, or words to that effect.
9.He also said, “You don’t have time to apply to University before your visa expires. I can get you into a college to do a diploma course,” and “meet me downstairs at Oxford College”. He gave a date and time to meet him, and also gave me the address.
10.After we met at Oxford College, Cliff Wong helped me enrol. I believe that this was on 8 February 2010 (I phoned the college to check this in March 2011). I gave Cliff Wong my passport so that he could make my visa application for me at that time. I also gave him money to pay the visa application fee. I transferred to Oxford College and started studying for a Diploma in Business Management in February 2010.
11.Cliff Wong did not tell me that he was not a registered migration agent. As previously stated I did not have know the difference between a registered migration agent and any other kind of agent at that time. Cliff Wong did not ask me whether he wanted him to receive mail on his behalf. I was not shown the online application before it was lodged. I only saw it for the first time on 8 March 2011, when I was shown by Mr Karp, my barrister.
12.If I had known that it was illegal for Mr Wong, as a person who was not a registered migration to make an application for me I would not have let him make my application. If I had been asked by Mr Wong whether I wanted him to receive Department of Immigration correspondence on my behalf I would have said, “No”. I want to receive my own mail. I have been shown pages 2 and 3 of the Court Book filed in these proceedings. I say that I did not authorise Wong Yu Chiang to receive mail on my behalf.
Mr Huang’s allegations that Mr Wong was not registered as a migration agent under the Migration Act, and that he unlawfully rendered immigration assistance, were unproven, and Mr Wong was given no opportunity to respond to them. Moreover, it seems likely on the evidence before me that Mr Wong was an education agent who was not also a registered migration agent, that he probably received his remuneration from an education provider, and that he did not charge Mr Huang for his immigration assistance. If so, his conduct was not in breach of the Migration Act (see s.280(5)). Moreover, the provisions of s.494D clearly allow any person, whether registered as a migration agent or otherwise, to act as an authorised recipient for correspondence.
Mr Wong’s legal status as a migration agent under the Migration Act therefore appears to me to be irrelevant, as also is Mr Huang’s knowledge and belief as to Mr Wong’s status as a migration agent.
This is not a case where either party has presented evidence or submissions to establish that there was a general custom or practice in a relevant industry, which implicitly authorised Mr Wong to give his own address for correspondence from the Department of Immigration, or, conversely, which points to the absence of any implied authority.
Nor does the Minister submit that any action of Mr Huang himself held out Mr Wong to the Department as his agent for receiving correspondence, so as to give rise to an ostensible if not actual authority to perform that role, under common law principles.
The principal issue before me therefore turns upon the extent of
Mr Wong’s actual authorisation by Mr Huang prior to the lodgement of the visa application. Since there is no evidence that the giving of a s.494D(1) notice was expressly authorised by Mr Huang, the case turns upon whether implicit actual authority should be found by examining the circumstances of Mr Wong’s engagement (see Bowstead on Agency, Fifteenth Edition, p.104, and Law of Agency, Second Edition, Dal Pont, GE, p183).
Neither counsel referred me to any general principles as to the implication of an actual authority from the surrounding circumstances of the engagement of an agent in circumstances such as the present, nor to any analogous case where a Court has implied an authority given to an agent to give his own address for receiving third party correspondence in relation to the subject matter of the agency.
There must be many circumstances where particular aspects of an agent’s authority are not the subject of express discussion at the time of the appointment, but are to be found by implication from the purpose and nature of the agency, and the circumstances surrounding the appointment. Where the appointment of the agent to achieve an intended objective is undoubted, a court should not be slow in making all necessary implications which would give practical effectiveness to the intended agency relationship.
As I suggested to counsel, and they did not dispute, the process of implication or imputation of a particular authority may appropriately apply the recognised tests of implied terms in contractual relationships. These were summarised by Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422:
Implied term
The implication which the appellants seek to make is based upon the presumed or imputed intention of the parties. In that context, the remarks of the majority in the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings are frequently called in aid: "(1) [the implication] must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract." In laying down those criteria, it was recognised that there was a degree of overlap. Further, as Deane J has observed, the cases in which the criteria in BP Refinery (Westernport) Pty Ltd v Shire of Hastings have been applied in this Court are cases in which there was a formal contract, complete on its face. He pointed out that a rigid approach should be avoided in cases, such as the present, where there is no formal contract. In those cases the actual terms of the contract must first be inferred before any question of implication arises. That is to say, it is necessary to arrive at some conclusion as to the actual intention of the parties before considering any presumed or imputed intention. And the test to be then applied was in a later case formulated by Deane J in these terms:
The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties.
Considering the above evidence as to the engagement of Mr Wong in the present case, in my opinion, the following points require the implication that it was within the scope of his authority to complete this part of the visa form by including his name and address as an authorised recipient of correspondence:
i)
Mr Huang was referred to Mr Wong as an education agent who could advise and “help” him make necessary enrolments with an education provider and to renew his student visa with the Department of Immigration, for the purpose of enabling
Mr Huang’s studies in Australia to continue.
ii)Mr Wong’s role expressly included ‘making’ the on-line visa application in the name of Mr Huang, and expressly extended to taking further steps of presenting his passport and application fee to the Department of Immigration. These elements, and the surrounding circumstances, show that Mr Wong was intended to be more than an anonymous agent for completing the on-line application form in the name of Mr Huang, but included a role as intermediary with the Department of Immigration and with education providers.
iii)
Mr Huang does not deny the implication from the employment of an ‘expert’ agent, that he gave a general authorisation to Mr Wong to do all that was reasonably necessary when dealing with the Department of Immigration to procure the renewed visa, including by exercising a degree of discretion in relation to matters not expressly adverted to in discussion. If a more precise and limited agency was intended, then I would have expected
Mr Huang to have included in his affidavits the relevant confining parts of their conversations (cf. the principle that evidence is to be weighed “according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” see: Russo v Aiello (2003) 215 CLR 643 at [11]).
iv)If Mr Huang’s instructions in relation to completing the visa application were ambiguous, and they could reasonably be understood in more than one sense, “he is bound by whichever of those senses the agent bona fide acts upon” (cf. Thornley v Tilley (1925) 36 CLR 1 at 12). There is no evidence in the present case which casts doubt upon Mr Wong’s bona fides when inserting his own address for service in the visa application.
v)
Mr Huang’s affidavit should be understood to prove no more than that their conversations omitted any statements by either of them as to whether Mr Wong would give his own address or that of
Mr Huang as the address for receiving mail from the Department of Immigration. In my opinion, this omission from their conversations suggests that their common understanding was that this was a subordinate or ministerial element in the tasks for which Mr Wong was engaged, rather than that no authority was intended to be given to Mr Wong to put his own address forward for receiving mail. The last sentence of paragraph 12 of
Mr Huang’s affidavit should, in my opinion, be understood to prove no more than that he now denies expressly giving authority.
vi)In fact, the approved form of visa application, which Mr Wong was expressly employed to complete, did require the person completing it to nominate an address for correspondence, being either a personal address of the visa applicant or an address of an authorised recipient. In circumstances where there was no conversation as to how this part of the form was to be completed by Mr Wong, the reasonable implication is that Mr Huang left this part of the form to be completed in the discretion of Mr Wong.
vii)The object of Mr Wong’s general engagement was obviously assisted by his presenting himself as recipient for correspondence from the Department of Immigration, and the object of the agency could be jeopardised by his not receiving that correspondence. This inference follows from the fact that Mr Wong was chosen and trusted by Mr Huang as holding superior knowledge and qualifications in dealing with education providers and immigration authorities.
viii)In all the circumstances, in my opinion, it did ‘go without saying’, and it was ‘necessary for the reasonable or effective operation’ of the intended agency, that Mr Wong should be able to put himself forward to the Department of Immigration as the authorised recipient for correspondence in relation to the visa application which he was engaged to present and pursue.
I conclude that the finding of the Tribunal at paragraph 23 of its decision, that Mr Huang “did in fact” give Mr Wong authority to give the notification under s.494D, was correct.
In the absence of any other contended flaw in the Tribunal’s reasoning, the Tribunal also correctly found that it lacked jurisdiction to entertain the application for review lodged on 15 June 2010.
I note that the Minister developed an alternative argument, in effect, that a statutory estoppel operated to preclude Mr Huang from denying the authority recorded in the s.494D(1) notification which formed part of the visa application. He submitted that this arose from s.98, which provides:
98.Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
There is Full Court authority that the operation of this provision is not confined to the cancellation of a visa for incorrect information, pursuant to the provisions of subdivision C of Division C of Part II of the Act, in which s.98 appears (see NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [16]).
Counsel for Mr Huang submitted that it would be inconsistent with the intended purposes of an authorised recipient under s.494D(1), for s.98 to be applied so as to create a constructive agency where no authority existed in fact.
Since I have found that the parts of Mr Huang’s visa application containing the s.494D(1) notification were supported by his actual implied authorisation, it is unnecessary for me to determine this issue of statutory construction.
For the above reasons I must dismiss the application. It is agreed that costs should follow the event.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 6 May 2011
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