Lyu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The matter before the Court of Appeal was an appeal against the decision of the Federal Circuit Court which dismissed an application for judicial review by the first appellant, Lyu, in relation to the cancellation of their visa. The appellants argued that they had not been properly notified of the proposed cancellation of their visas as required by s 135(1) of the Migration Act 1958 (Cth). The respondents, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, contended that the appellants had been properly notified. The primary judge found in favour of the respondents, dismissing the application for judicial review. The appellants appealed this decision to the Court of Appeal.

The central legal issue before the Court of Appeal was whether the appellants had been properly notified of the proposed cancellation of their visas under s 135(1) of the Migration Act 1958 (Cth). The Court had to determine whether the notification was in accordance with the requirements of the Act and whether the respondents had fulfilled their obligation to provide the appellants with the necessary information. The Court also needed to consider the validity of the authorisation given by the appellants to receive written correspondence on their behalf.

The Court of Appeal found that the primary judge had erred in his assessment of the scope of the relevant authorisation. The Court held that the authorisation granted to the person named as the authorised recipient, Rena Zhang, did not extend to receiving notifications about the cancellation of visas. The Court emphasised that the authorisation was limited to communications about the application and its outcome. Since the notification of the proposed cancellation of visas was not within the scope of the authorisation, the Court concluded that the appellants had not been properly notified as required by s 135(1) of the Migration Act 1958 (Cth). Consequently, the Court allowed the appeal, set aside the orders of the primary judge, and dismissed the application for judicial review with costs.

The Court also ordered that the first respondent pay the appellants’ costs of and incidental to this appeal. The orders were made under Rule 39.32 of the Federal Court Rules 2011.