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

The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal had set aside decisions to cancel the business visas of several visa holders, finding that they had not been lawfully notified of the Minister's intention to consider cancellation. The Minister contended that the Tribunal erred in law by finding that the visa holders were not properly notified.

The central legal issue before the court was the proper interpretation and application of section 494B of the *Migration Act 1958* (Cth) concerning the methods by which the Minister may give documents, specifically a Notice of Intention to Consider Cancellation (NOICC), to a person. The Minister argued that transmitting the NOICC via email to an authorised recipient constituted lawful notification, even if a subsequent transmission was to a different email address. The Tribunal had found that the NOICC was not addressed to the last known or notified address as required by the Act, thereby depriving the visa holders of an opportunity to make submissions.

Humphreys J considered the provisions of section 494B, which outlines various methods for the Minister to give documents, including transmission by email to an address provided for the purpose of receiving documents. The court noted that the Tribunal's decision was based on a NOICC transmitted on 6 September 2019 to an email address that was not the visa holders' or their authorised recipient's. However, the Minister's primary argument relied on a NOICC transmitted on 2 September 2019 to the authorised recipient's email address. The court found that section 494B(5) permits the Minister to transmit a document by email to the last email address provided for the purpose of receiving documents. The court concluded that the Tribunal erred in setting aside the cancellation decisions based on the subsequent transmission to an incorrect address, as the initial transmission to the authorised recipient's email address on 2 September 2019 was a lawful method of notification under section 494B(5).

The Minister's application for judicial review was allowed. The decision of the Administrative Appeals Tribunal was set aside, and the matter was remitted to the Tribunal for redetermination according to law.