Lyu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 643
•22 March 2021
Lyu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 643 (22 March 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2297, 2020/2308, 2020/2309, 2020/2310
Re:Lieping Lyu
Yan Lyu
Qiang Lu
Min Chen
APPLICANT(S)
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:22 March 2021
Date of written reasons: 26 March 2021
Place:Sydney
For the reasons given orally at the conclusion of the hearing of this matter, the decision under review is set aside, and the matter remitted to the Respondent under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) for further consideration.
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...........................[sgd]........................................
Chris Puplick AM, Senior Member
CATCHWORDS
IMMIGRATION – business visa - notice of intention to cancel visa not delivered –whether receipt of notice of intention to cancel was material – whether there was a denial of procedural fairness – decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Migration Act 1958 (Cth) ss 134, 135, 494B, 494D
CASES
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Negri v Secretary, Department of Social Services [2016] FCA 879
Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151
REASONS FOR DECISION
Chris Puplick AM, Senior Member
26 March 2021
On 23 March 2020 a delegate of the Minister (the Respondent) cancelled the Business Talent (Permanent) (Class EA) (subclass 132) visa held by Mr Lieping Lyu (the Applicant) and in doing so triggered the automatic cancellation of the dependant visas held by the Applicant’s wife and two children.[1]
[1] Migration Act 1958 (Cth) section 134(4).
On 17 April 2020 the Applicant applied for a review of that decision in this Tribunal, that matter being heard on 22 March 2021 using the Microsoft Teams platform as per the Tribunal’s COVID19 protocols. The Applicant was represented by his Migration Agent and was assisted by an interpreter in Mandarin.
In his opening address to the Tribunal the Applicant’s representative raised a threshold question, namely whether or not the Applicant had been notified properly of the Minister’s initial intention to consider the cancellation of his visa, and consequentially whether the Applicant had adequate opportunity to make submissions on this point to possibly prevent such cancellation occurring.
The claim that the Applicant had not been properly notified of the cancellation decision was advanced in the Applicant’s written submissions to the Tribunal and addressed at length in the Respondent’s Statement of Facts, Issues and Contentions.
The Minister’s representative agreed that it was necessary for the Tribunal to determine this matter before proceeding to any consideration of the substantive grounds on which the visa had been cancelled. The Tribunal agreed that this was the correct course of action to take and relied upon the extensive written submissions of the parties on this matter.
The Tribunal thus proceeded to make a determination of this discrete issue which it announced prior to the adjournment of the hearing. It indicated that it would provide a full set of reasons for its decision, based upon its extempore remarks to the parties[2] and they are provided hereunder.
[2] Negri v Secretary, Department of Social Services [2016] FCA 879 at [11]-[30].
THE NOTIFICATION SCHEME
Section 134 of the Migration Act 1958 (Cth) (‘the Act’) authorises the Minister to cancel a business visa if the Minister is satisfied that certain requirements imposed upon the visa holder have not been met.
In doing so, the Minister is required to give notice to the visa holder as follows:
134 (7) If the Minister cancels a business visa under this section, the Minister must give written notice of the cancellation decision to its holder, including:
(a)the Minister's reason for the cancellation; and
(b)a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the Administrative Appeals Tribunal for review of the cancellation.
However, before proceeding to cancellation of a visa, section 135 relevantly requires that:
2 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.
3The holder may make such representations to the Minister within the time specified in the notice.
4The Minister must give due consideration to any representations.
This section of the Act is designed to ensure that natural justice and procedural fairness are accorded to visa holders and that they are given the opportunity to have the Minister reconsider any proposal for cancellation, taking into account any representations which they have laid before him or her.
The Act contains extensive provisions for the giving of various notices. Section 494B relevantly provides for methods by which the Minister may give documents to a person (emphasis added):
Coverage of section
1For the purposes of provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient); and
(b)state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
………..
2One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
3Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a)is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
………..
4Another method consists of the Minister dating the document, and then dispatching it:
……….
(b)by prepaid post or by other prepaid means; and
(c)to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
Transmission by fax, email or other electronic means
…………
5Another method consists of the Minister transmitting the document by:
(a)fax; or
(b)email; or
(c)other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e)if the recipient is a minor--the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
Section 494D makes further provisions which require that where a business visa holder has nominated another person to be their authorised recipient, any correspondence must be addressed to that person and not to the visa holder themselves:
(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 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.
The Minister is not required to comply with subsection (1) if the authorised recipient is not a registered migration agent (section 494D(5)(a)). The nominees appear to have been such persons.
THE NOTICES
The following notices relevant to the cancellation of the visas in question were sent:
Date Addressee Method of Transmission Tribunal document page reference 02.09.19 Lieping LYU Email:
367 02.09.19 Lieping LYU Email:
374 02.09.19 Qiang LU Email:
378 02.09.19 Min CHEN Email: [email protected] 382 02.09.19 Yan LYU Email:
388 06.09.19 Lieping LYU Email:
393 06.09.19 Yan LYU Email:
400 06.09.19 Lieping LYU Email:
404 06.09.19 Min CHEN Email:
410 06.09.19 Qiang LU Email:
414 06.09.19 [email protected] Email: [email protected] 418/419/420 23.02.20 Lieping LYU Email: [email protected] 428
In the Applicant’s application for the Business Talent Visa (expression of interest dated 21 April 2015) the Applicant nominated Rena Zheng as the authorised recipient contact and gave her address as [email protected].[3] This email address was then used by the Department to acknowledge receipt of the application.[4]
[3] Tribunal documents at [48]-[49].
[4] Ibid at [61].
On either 4 or 21 (it is difficult to tell from the document) January 2019 a form 956A – Appointment of withdrawal of an authorised recipient was completed nominating Xiao Pan as the authorised recipient for correspondence and giving an address as yukopan@shinyway,com.cn.[5] There is a further 956A form, dated 24 March 2020, which appears to reaffirm the appointment of Ms Pan.[6]
[5] Ibid at [98].
[6] Ibid at [438].
On 8 March 2019 the Applicant completed a Form 1010 Survey of Business Skills visa holders which is stamped as having been received by the Department on 12 March 2019.
That form provides an updated email address as [email protected]/[email protected].[7]
[7] Ibid at [341].
THE APPLICANT’S STATEMENT RE EMAIL ADVICE AND CONTACTS
The Applicant provided a statement on 27 March 2020 in which he outlined details of why he claims not to have received correspondence from the Respondent:
We have received your letter dated 23 March 2020, you stated that on 2 September 2019 a Notice of Intention to Consider Cancellation of your Visa (NOICC) was sent through the Authorised Contact by email at [email protected], but this email was returned undeliverable. A subsequent email was sent to me on the 6 September 2019 to email address [email protected]. Please give me an opportunity to explain why I have not received any Immigration email (NOICC). There was a technical problem with the mail address [email protected] on 1 Sep 2019, which was not successfully solved until 9 Sep 2019. We are so sorry missing your NOICC email on 2 Sep 2019, really apologized for any inconvenience. The email [email protected] has not been provided before because it is a wrong email address. The email provided on the original 132 online application is [email protected], the contacts email provided on the FORM 1010 are [email protected], [email protected], [email protected], and the other email address on my business card is [email protected] (please see attached the card).As a result, we feel so sorry and still have missed your email on 6 September 2019.[8]
[8] Ibid at [453].
THE RESPONDENT’S STATEMENT RE EMAIL ADVICE AND CONTACTS
The Respondent has set out their position at length in their SFIC as follows:
The applicants were lawfully notified of the NOICCs.
22. Pursuant to s 494D of the Act and reg 2.55(1)(a) and (3)(d) of the Migration Regulations 1994 (Regulations), the Minister was required to transmit the NOICCs to the applicants’ last email address known to the Minister, which is the nominated email address (TD 98).
23. It is apparent that the NOICCs were transmitted to the nominated email address on 2 September 2019: TD 367, 374, 378, 382, 388. Although it appears that the emails did not reach the applicants (TD 392), it has been held that the definition of the word ‘transmitting’ in reg 2.55(3) does not include the notion of receipt, that is, transmission is achieved once the email is sent: see Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [43]. As such, the applicants were lawfully notified of the NOICCs on 2 September 2019.
24. While the Department subsequently sent the NOICCs to the hchfm email address erroneously, that error does not affect the validity of the notification or constitute renotification. This is because the applicants had already been lawfully notified of the NOICCs on 2 September 2019: see Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151 at [25]. In any event, it is apparent that on 6 and 22 September 2019, the Department again sent the NOICCs to the nominated email address, in addition to the hchfm email address: TD 418, 420. In those circumstances, any error in sending the NOICCs to the hchfm email address was not material: see eg Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.
25. In the AFS, the applicants assert that the NOICCs were invalid because the Minister did not comply with reg 2.55(4)(b) of the Regulations. That submission should be rejected because it misconstrues reg 2.55(4). Relevantly, the chapeau of that subregulation provides (emphasis added):
(4) Subject to subregulation (4A), for a document mentioned in paragraph (1)(ab) or (b)
26. The documents mentioned in reg 2.55(1)(ab) and (b) relate to decisions to cancel a visa or a decision not to revoke the mandatory cancellation of a visa. It is clear that the NOICCs do not meet those descriptions. As such, the Minister was not required to comply with reg 2.55(4) when notifying the applicants of the intention to cancel their visas.
27. For these reasons, the Tribunal should find that the applicants were lawfully notified of the NOICCs on 2 September 2019.
DISCUSSION
While the Tribunal accepts the Respondent’s analysis of the authorities dealing with questions of when and how correspondence or notices should be taken as having been received, there are three matters which the Tribunal finds of concern, which are considered below.
1. Was the correspondence correctly addressed?
The Respondent’s SFIC states:
On the same day, the Department received an ‘email undeliverable’ notice from the email system: TD 392. It appears that on 6 and 20 September 2019, the Department re-sent the NOICCs to [email protected] (hchfm email address) and the nominated email address, unsuccessfully: TD 418-421. It appears that the delegate had obtained the hchfm email address from the applicant’s incoming passenger card completed on 11 November 2018: see Annexure B. However, there was a typographic error as the correct email address should be [email protected].[9]
[9] Respondent’s Statement of Facts, Issues and Contentions at [9]
The typographical error (the inclusion of the letter “n”) meant that the correspondence was not addressed properly, and hence not delivered to the Applicant. Consequentially, the Respondent has not fulfilled its obligations to formally advise the Applicant of a decision.
2. Was the correspondence addressed to last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents as required by section 494B(5)(d) of the Act?
It is the evidence of the Respondent that the address used was that taken “from the applicant’s incoming passenger card completed on 11 November 2018”.[10] However, there was material before the Respondent which post-dated that source of information and which gave a different email address. In particular there was the January 2019 Form 956A address and even later, the Form 1010 of March 2019.
[10] Idem.
In Zhang, otherwise relied upon by the Respondent, the Court stated that “if the Minister ‘gives a document to a person by one of the methods specified in s 494B’” this also engages the question of it being sent to “the appellant’s last known residential or business address”.[11]
[11] Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151 at [35] and [13].
The correspondence was not addressed to the last known or notified address as required by the Act.
3. Was the correspondence addressed to the authorised recipient, rather than the applicant as required by section 494D(1) of the Act?
It does not appear that any of the relevant correspondence of September 2019 was addressed to the authorised recipient but rather was addressed to the Applicant or to members of his family.
Both the Applicant and the Respondent rely upon statements made by the High Court in Minister for Immigration and Border Protection v SZMTA.[12] The Respondent asserts that the error in sending the notices to a wrong address was not material and hence should be ignored by this Tribunal while the Applicant asserts that this error denied the Applicant an opportunity to make submissions to the Department to persuade it not to proceed with the cancellation of the visas.
[12] [2019] HCA 3.
Although the error would not, and has not prevented the Applicant from having the cancellation decision reviewed by this Tribunal, it did, in the Tribunal’s opinion deny the Applicant an opportunity for departmental review to which he (and through him, his family members) was entitled.
The Tribunal is of the view that the Applicant was denied procedural fairness in being denied the opportunity to have a preliminary review of the decision within the Department, which he would have sought had he been properly notified of the original intention to cancel the visa. It was a statutory requirement that such notification to be sent to the Applicant’s authorised recipient and for correspondence to be addressed to the last known address of the Applicant as provided to the Respondent for this purpose. That does not appear to have occurred.
Whether or not a review by the Minister would have produced any different outcome or decision is a moot point. What was denied was the opportunity.
This does not of course mean that the substantial issues behind the Respondent’s original decision should not be ventilated and tested in accordance with the provisions of the Act, simply that due process must be observed, and procedural fairness accorded to the Applicant in that process.
DECISION
The decision under review is set aside and the matter remitted to the Respondent under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) for further consideration.
I certify that the preceding 33 (thirty three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.................................[sgd].......................................
Associate
Dated: 26 March 2021
Date(s) of hearing: 22 March 2021 Advocate for the Applicant: Sean He (Azurra Migration) Solicitors for the Respondent: Max Gao (Australian Government Solicitors)
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Natural Justice
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Judicial Review
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Remedies
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