Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Lyu
[2021] FCCA 1604
•16 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Lyu [2021] FCCA 1604
File number(s): SYG 701 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 16 July 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Business Talent (Permanent) (Class EA) (Subclass 132) visa – whether the Tribunal erred in setting aside the decisions under review on the basis of its findings that the first, second, third and fourth respondent’s (visa holders) were not lawfully notified of the applicant’s (Minister) intention to cancel their business visas under s 135 of the Migration Act 1958 (Cth) – the application is upheld Legislation: Migration Act 1958 (Cth), ss 134, 135, 494
Migration Regulations 1994 (Cth), r 2.55
Cases cited: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657
Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151
Number of paragraphs: 26 Date of last submission/s: 7 July 2021 Date of hearing: 7 July 2021 Place: Parramatta Counsel for the Applicant: Ms Jones Counsel for the Respondents: Mr Finnane ORDERS
SYG 701 of 2021 BETWEEN: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Applicant
AND: LIEPING LYU
First Respondent
YAN LYU
Second Respondent
QIANNG LU (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.The application is upheld.
2.The Court makes no Order as to costs.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
This is an application by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the applicant”), against a decision of the Administrative Appeals Tribunal (“the Tribunal”) to set aside a decision of the applicant, to cancel the Business Talent (Permanent) (Class EA) (Subclass 132) visa held by Mr Lieping Lyu, the first respondent and in so doing, triggering the automatic cancellation of the dependants visas held by the first respondent’s wife and two children.
The Tribunal determined that the respondents’ had not been properly notified by the applicant, with a Notice of Intention to Consider Cancelation (“NOICC”) of their visas.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is relatively short. The decision revolves around the question of whether the respondents’ were properly notified of the applicant’s intention to consider the cancellation of their visas. The Tribunal found that the NOICC was not addressed to the last known or notified address, as required by the Migration Act 1958 (Cth) (“the Act”). This deprived the respondents’ of the opportunity to have the cancellation decision considered by the applicant with the benefit of any submissions they wished to make. Accordingly, the decision of the applicant was set aside, and the matter remitted for further consideration.
GROUNDS OF JUDICIAL REVIEW
The Ground of judicial review relied upon, is contained in an Amended Application filed with the Court on 11 June 2021. It is as follows:
Ground One
The Fifth Respondent (Tribunal) erred in setting aside the decisions under review on the basis of its finding that the First, Second, Third and Fourth Respondents (visa holders) were not lawfully notified of the Applicant’s (Minister) intention to cancel their business visas under s 135 of the Migration Act 1958 (Act).
Particulars
a) The visa holders authorised a person (authorised recipient) to receive correspondence from the Minister’s Department on their behalf via email;
b) Notices of intention to consider cancellation of visas (NOICC) were issued under s 135 of the Act on 2 September 2019;
c) The NOICCs were addressed to the authorised recipient and transmitted via email to the authorised recipient’s email address on 2 September 2019;
d) Further NOICCs were transmitted on 6 September 2019 to another email address which was not the visa holders’ email address;
e) The Tribunal set aside the decisions under review on the basis that the NOICCs dated 6 September 2019 were transmitted to an incorrect email address;
f) The Tribunal erred in so finding because it should have found that by transmitting the NOICCs via email to the authorised recipient on 2 September 2019, the visa holders were lawfully notified of the Minister’s intention to consider cancellation of their visas.
CONSIDERATION.
It should be noted that consent orders were made on 20 May 2021 appointing the first respondent as the litigation guardian of the second respondent, born January 2008.
This matter involves an analysis of the correct interpretation of the interaction of a number of sections of the Act as regards the requirement of the Minister to notify a visa holder of an intention to consider cancellation.
Section 134 of the Act empowers the Minister to consider the cancellation of a visa. It is relevantly as follows:
MIGRATION ACT 1958 - SECT 134
Cancellation of business visas
(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
Section 135 of the Act relevantly requires that:
MIGRATION ACT 1958 - SECT 135
Representations concerning cancellation of business visa
(1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:
a) stating that the Minister proposes to cancel the visa; and
b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:
i.if the notice is given in Australia--28 days after the notice is given; or
ii.if the notice is given outside Australia--70 days after the notice is given.
(2) The holder may make such representations to the Minister within the time specified in the notice.
(3) The Minister must give due consideration to any representations.
The Act empowers the Minister to give documents, including notices such as a NOICC, by any one of the means specified within the Act. Section 494B of the Act provides:
MIGRATION ACT 1958 - SECT 494B
Methods by which Minister gives documents to a person
Coverage of section
(1) For 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.
(1A) If a person is a minor, the Minister may use the method mentioned in subsection (4), (5) or (5A) to dispatch, transmit or make available a document to an individual (a carer of the minor ):
a) who is at least 18 years of age; and
b) who the Minister reasonably believes:
i.has day-to-day care and responsibility for the minor; or
ii.works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the Minister gives an individual a document by the method mentioned in subsection (4), (5) or (5A), the individual is taken to have received the document at the time specified in section 494C in respect of that method.
(1B) However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One 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
(3) Another 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
b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
a) within 3 working days (in the place of dispatch) of the date of the document; and
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
iii.if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.
Transmission by fax, email or other electronic means
(5) Another 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.
Making document available by way of online account
(5A) Another method consists of the Minister making the document available by way of an online account of the recipient established for purposes relating to this Act or the regulations.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
Documents given to a carer
(7) If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
Section 494D(1) of the Act requires that, where an person has nominated another person to be their ‘authorised recipient’, any correspondence must be addressed to that person and not the visa holder themselves. Section 494(2) of the Act empowers the Minister in addition to giving a document to the authorised recipient, to giving a copy of the document to the first person (in this case Mr Lyu).
It is well settled law that the method of delivery of correspondence by the Minister, as long as it is one of the permitted ways, is at the discretion of the Minister.
It is factually uncontested that the First respondent, Mr Lyu, submitted to the Department, a Form 956A in relation to himself and his family members on 21 January 2019, nominating Ms Xiao Pan as their authorised recipient, and agreed to communication by email to the following address: [email protected]. No limitation on the scope of the authority for Ms Pan to receive documents was noted in the form, although provision existed at question 12 of the form, for a limitation to be provided. Further, the declaration section at question 29 in the form stated that that the authorised recipient was “appointed…to receive all documents”. However, in a covering email set by Mr Lyu with the form, it indicated that he was authorising Ms Pan to receive documents “on his behalf for business monitoring survey”.
In his affidavit of 17 June 21, Mr Lyu contends that his intention was that the Form 956A was submitted only for the purposes of receiving correspondence on his behalf relating to the business monitoring survey. Mr Lyu deposes that his last known contact details were a stated residential address in Hangzou City and 2 email addresses being [email protected] or [email protected]. These contact details were provided in the business skills survey that was received by the Department on 12 March 2019. A further Form 956A dated 24 March 2020 was submitted which affirms the appointment of Ms Pan as an authorised recipient.
Mr Lyu claims that the NOICC was not received by either he or his nominated recipient. As a result, Mr Lyu claims that he knew nothing about the intention to consider the cancellation of his visa until he received the delegate’s decision.
Again it is common ground that on 2 September 2019 a NOICC in relation to each of the visa holders was sent to the respondent’s nominated authorised recipient by email at the nominated email address of [email protected]. That email was returned to the Department as “undeliverable”. This was apparently due to technical difficulties’ with Ms Pan’s email.
On 6 September 2019, the relevant NOICC’s were again sent to the following addresses [email protected] for all the visa holders and to [email protected] for Mr Lyu. It is uncontested that the first address contained a typographical error and it was not received by Mr Lyu.
In a statement provided to the Tribunal of 27 March 2020, reproduced at paragraph 19 of the Tribunal decision record, Mr Lyu states as follows:
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.
The Tribunal found that the correspondence was not provided to the last known or notified address as required by the Act. As a result, the visa holders were denied the opportunity of the benefit of a favourable decision by the delegate.
Counsel for the respondents’ submitted that, the second email sent to an incorrect email address ‘superseded’ the original email of 2 September. It was sent for a purpose and once sent, the Minister cannot go back to rely upon the first email.
With respect to the learned member of the Tribunal, the Court disagrees with the reasoning of the Tribunal. Having provided a Form 956A, the operation of s 494D(1) of the Act and
r 2.55(1)(a) and (3)(d) of the Migration Regulations 1994 (Cth) (“the Regulations”) impose on the Minister the requirement to give the authorised person any documents instead of the first person. This is clear from the use of the words ‘must give the authorised person, instead of the first person, any documents” in the section. The capacity under s 494D(2) of the Act to also give a copy to the first person, in this case Mr Lyu, operates no more than to allow the Department to provide additional copies to the first person by other means, but does not in any way supersede ort take away from the proposition that effective service is achieved by service on the authorised recipient. It was a courtesy, but does not detract from the initial sending of the notice to the nominated address on the form 956A.
Further, r 2.55(8) of the Regulations makes it clear that, when a document is transmitted by fax, “the person is taken to have received the document at the end of the day the document was transmitted”: (see; Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [43]).
This Minister fulfilled the statutory obligations required under the Act by the transmission of the NOICC on 2 September 2019 to the nominated address on the form 956A.The fact that it was returned as undeliverable is regrettable, but has no impact on the outcome of the matter as the visa holders were lawfully served with the NOICC on 2 September 2019: (see; Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151 at [25]). The second transmission of the NOICC on 6 September to an incorrect address is again unfortunate, but irrelevant. Effective service occurred on 2 September 2019.
The fact that Mr Lyu may have provided further more up to date contact details is again, irrelevant. The Minister was obliged to send the NOICC to his nominated representative, as nominated in the Form 956A until and unless this was revoked. The purported limitation in the covering email provided with the Form 956A is insufficient in the Courts view, to operate in such a manner as to limit the express authorisation contained within the form itself. The Department was entitled to rely upon the contact details within the form until such a time as it was lawfully revoked.
This did not occur. The fact that the delivery of the NOICC was unsuccessful is again irrelevant, as the operation of r 2.55(8) of the Regulations, only requires transmission of the document, not successful delivery. By way of analogy, in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657 at [55] it was held that, effective service occurred even though the Department knew when it sent documents by post to the last known address of the applicant that, in circumstances where previous correspondence sent to that address, was returned as undeliverable.
While the Court notes that the operation of the legislation in these circumstances may be considered harsh, this is not a relevant consideration.
CONCLUSION
Accordingly, the application is upheld. The matter is remitted to the Tribunal to be reconsidered according to law.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 16 July 2021
SCHEDULE OF PARTIES
SYG 701 of 2021 Respondents
Fourth Respondent:
MIN CHEN
Fifth Respondent:
ADMINISTRATIVE APPEALS TRIBUNAL
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