Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 448

Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 448 (16 March 2022)
Division:GENERAL DIVISION
File Number: 2021/9655
Re:Thi Tuyet Anh Nguyen
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:16 March 2022
Place:Perth

The application is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – Migration Act s 500(6B) – Migration Regulations reg 2.55 – decision of delegate of Minister not to revoke mandatory cancellation of visa – whether Applicant served with non-revocation decision – meaning of Migration Act s 494D considered – where Form 956 identified migration agent as assisting with “all immigration matters” – migration agent engaged with non-revocation process – service of a notice of decision under s 501G(1) can be given to an authorised recipient appointed under Migration Act s 494D – application for review lodged out of time – Tribunal cannot extend time – decision not reviewable by Tribunal (AAT Act s 42A(4)) – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42A(4)
Migration Act 1958 (Cth) ss 127(1), 476A(1)(b), 494A, 494B, 494C, 494D, 494D(2), 500(6B), 501, 501(1), 501(2), 501(3A), 501CA(4), 501G(1), 501G(1)(f)(ii), 501G(3)
Migration Amendment Regulations 2001 (No.6) 2001 No. 206 (Cth)
Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth)
Migration Regulations 1994 (Cth) reg 2.55, 2.55(3), 2.55(3)(a), 2.55(3)(b), 2.55(3)(c), 2.55(3)(d), 2.55(5), 2.55(8)
CASES
Anthony Hordern& Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1
BAL19 v Minister for Home Affairs [2019] FCA 2189; 168 ALD 276
Butt v Minister for Immigration and Border Protection [2014] FCA 1354; 227 FCR 359
EIA18 v Minister for Home Affairs [2021] FCCA 613
Sainju v Minister for Immigration and Citizenship and Another [2010] FCA 461
Wilson v Minister for Immigration and Citizenship [2012] FCA 1421
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)
REASONS FOR DECISION
Deputy President Boyle
16 March 2022
THE APPLICATION

The Respondent (Minister) seeks dismissal of the substantive application in these proceedings under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the decision sought to be reviewed is not reviewable by the Tribunal.
BACKGROUND
The Applicant is a citizen of Vietnam. She is currently in Bandyup Women’s Prison in Western Australia. On 9 February 2021, the Applicant’s Class BB Subclass 801 Partner visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Act) on the basis that she failed to pass the character test (Cancellation Decision).
The Applicant made representations about why the Cancellation Decision should be revoked. After considering these representations, on 23 November 2021, a delegate of the Minister made a decision under s 501CA(4) of the Act not to revoke the Cancellation Decision (Non-revocation Decision). On the same day the delegate sent notice of the Non-revocation Decision to Mr Quang Nguyen.[1]
[1] Applicant’s submissions para 11.
On 13 December 2021, the Applicant filed the application in the Tribunal seeking review of the Non-revocation Decision.
Section 500(6B) of the Act provides that if a person whose visa is cancelled is in the migration zone, the application to the Tribunal for the review of a decision under s 501 or s 501CA(4) of the Act must be lodged with the Tribunal “within nine days after the day on which the person was notified of the decision in accordance with subsection 501G(1)” of the Act.
The Tribunal has no power to extend the time for the Applicant to make the application. Section 500(6B) of the Act provides that the provisions of the AAT Act under which the Tribunal can extend the time do not apply to applications to review decisions under s 501CA(4) of the Act not to revoke the cancellation of a visa.
THE ISSUES
The matter of contention between the parties is whether the Applicant has been served with the Non-revocation Decision. The Minister contends that the Applicant was served with the required notice of the Non-revocation Decision on 23 November 2021 when the Applicant’s authorised recipient, Mr Nguyen, received the email notifying of the decision (see [3] above) and that the time limited for the Applicant to make an application to the Tribunal for review had expired at the time of the Applicant lodging the application in the Tribunal. The Minister contends, accordingly, that the Tribunal does not have jurisdiction to review the Non-revocation Decision. In other words, it is not a reviewable decision for the purposes of s 42A(4) of the AAT Act.
The Applicant contends that she has not been effectively served with the Non-revocation Decision and that the time limited for her to make an application for review by the Tribunal has not started to run and has therefore not expired.
LEGISLATIVE FRAMEWORK
Section 500(6B) of the Act provides as set out in [5] and [6] above.
Section 501G(1) of the Act relevantly provides:
(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:
…
(ba)not revoke a decision to cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c) sets out the decision; and
(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than non-disclosable information) for the decision; and
(f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i)states that the decision can be reviewed by the Tribunal; and
(ii)states the time in which the application for review may be made; and
(iii)states who can apply to have the decision reviewed; and
(iv)states where the application for review can be made; and
(v)in a case where the decision relates to a person in the migration zone--sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi)sets out such additional information (if any) as is prescribed.
Section 501G(3) of the Act provides:
(3) A notice under subsection (1) must be given in the prescribed manner.
The “prescribed manner” is set out in the Migration Regulations 1994 (Cth) (Regulations). Regulation 2.55 relevantly provides:
(1) This regulation applies to:
(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
(ab)the giving of a document under subsection 133E(2) of the Act relating to a decision to cancel a visa under subsection 133A(1) or 133C(1) of the Act; and
(b) the giving of a document under subsection 501G(3) of the Act relating to a decision to:
(i)cancel a visa under section 501, 501A, 501B, 501BA or 501F of the Act; or
(ii)not revoke a decision to cancel a visa under section 501CA of the Act;
(c) the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.
…
(3) Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a)by handing it to the person personally;
(b)by handing it to another person who:
(i)is at the person's last residential or business address known to the Minister; and
(ii)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii)appears to be at least 16 years of age;
(c)by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person's last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) email; or
(iii) other electronic means;
to the last fax number, email address or other electronic address known to the Minister.
…
(4) Subject to subregulation (4A), for a document mentioned in paragraph (1)(ab) or (b):
(a) if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and
(b) if the person has held the visa for at least 1 year when the document is to be given:
(i)Immigration must try to find the person; and
(ii)the Minister must give the document in one of the ways mentioned in subregulation (3).
Section 494B of the Act relevantly provides:
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.
…
(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;
(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.
(Original emphasis)
Section 494D of the Act relevantly provides:
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 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.
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) Subject to subsection (3A), the first person (but not the authorised recipient) 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.
…
(5) The Minister need not comply with subsection (1) if:
(a)the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
…
(Original emphasis)
THE PARTIES’ CONTENTIONS
The Applicant
The Applicant puts forward two grounds to argue that the Applicant was not served with the Non-revocation Decision.
Ground 1
Read in isolation from s 494D of the Act, s 501G(3) and reg 2.55 provide a clear and unambiguous framework for how the written notice required under s 501G(1) of the Act is to be given to a person the subject of a cancellation-related decision. This framework notably makes no provision for an authorised recipient or third party recipient of any kind, it refers to “person” throughout which, read in the context of s 501G(1), must mean the person the subject of the cancellation-related decision.
Section 501G(3) is cast in mandatory terms, as is reg 2.55(3). There has clearly been a conscious choice made not to refer back to the general provisions on how documents are to be given and when they will be deemed to be given in ss 494B and 494C (unlike in the case of visa refusal decisions) and a conscious choice not to include the ability to appoint an authorised recipient (unlike the reproduction of most of ss 494B and 494C, there is no analogous provision in reg 2.55 to s 494D). The policy reason for not allowing notification by an authorised recipient for cancellation-related decisions must be the danger that a person could have their visa cancelled and their liberty removed without having actual notice of the decision in question.
Mortimer J said in Butt v Minister for Immigration and Border Protection,[2] “[i]n relation to an issue as critical as notification of cancellation of a visa, the scheme should be construed in a way which promotes certainty in the operation and application of its provisions.”[3] In that case, her Honour found that the operation of s 127(1) of the Act and reg 2.55 excluded the operation of ss 494B and 494C, accepting that the principles in Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia[4] applied.
[2] [2014] FCA 1354; 227 FCR 359.
[3] Citing Butt at [48].
[4] (1932) 47 CLR 1.
The construction of the Act and Regulations which promotes the greatest certainty, clarity and fairness is that the written notice required to be given under s 501G(1) of the Act must be given in accordance with reg 2.55 in the case of cancellation-related decisions. Sections 494B, 494C and 494D are all excluded by the particular operation of reg 2.55.
Given the Applicant was not personally given the written notice required by s 501G(1) of the Act, she has not been validly notified of the decision to refuse to revoke the cancellation of her visa.
Ground 2
Judge Mercuri touched on this point obliquely in EIA18 v Minister for Home Affairs[5] at [82]–[88], where her Honour emphasised that s 494D of the Act required the appointment of an authorised recipient be for specified matters. Her Honour found that the appointment years before of an agent for a protection visa application, which had not been withdrawn, did not subsist when it came to the cancellation of that visa.
[5] [2021] FCCA 613.
On the face of the Form 956, it was completely unclear what matters the Applicant’s then representative had been appointed to assist with. An application process for all immigration matters not yet lodged is the literal position, which does not even closely resemble the reality of the situation which was the Applicant requesting revocation of the cancellation of her visa.
Section 494D of the Act requires that the authorised recipient be appointed in relation to specified matters. One obvious protection this provides, relevant to this case, is that if you cannot articulate with any specificity what you are appointed to do, you are unlikely to be of much service to the person you are purporting to assist.
The Applicant clearly did not appoint an authorised recipient in relation to specified matters, accordingly, even if s 494D of the Act is not excluded by reg 2.55, the Applicant could not be given the written notice through her authorised recipient as there had been no valid appointment of one.
The Minister
Ground 1
There is nothing in the text of s 494D of the Act that limits its application as the Applicant suggests. To the contrary, the section requires, where a relevant authorisation is given by an applicant, the Minister to “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 required to give a notice under s 501G of the Act in the prescribed manner, but if a person gives the Minister an appropriate authority under s 494D, the Minister must give the authorised recipient, instead of the person, the relevant documents.
Properly construed, and contrary to the Applicant’s submissions, s 494D is not a broader or more general power for the giving of documents than s 501G(3) and reg 2.55. Rather, it is a provision that was designed to achieve administrative certainty by permitting a person to appoint another to be his or her recipient. It operates alongside, and in consonance with, s 501G. To this end, it should be noted that ss 494A, 494B, 494C and 494D were introduced into the Act by way of the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth) with effect from 10 August 2001. Regulation 2.55 was introduced into the Regulations by the Migration Amendment Regulations 2001 (No.6) 2001 No. 206 (Cth), also with effect from 10 August 2001. By reference to their text, commonality of purpose, and their having been brought into operation at the same time, it is clear the regimes were intended to operate coherently.[6]
[6] Noting see Sainju v Minister for Immigration and Citizenship and Another [2010] FCA 461 at [69].
Judge Mercuri’s obiter remarks in EIA18 do not provide an answer to the question posed. Her Honour did not, and was not in that case required to, resolve the issue.
The Applicant’s submission reproduced in [17] above is not correct. Regulation 2.55 provides for different methods of giving of documents, some of which involve personal delivery to the person (reg 2.55(3)(a)), but most of which involve the giving of the document to “another person” or the sending of the document physically by post or electronically to an address “known to the Minister” (which is not necessarily the person’s address).[7] In respect of the “policy reason”, it may be accepted that the scheme intended to provide certainty both to the former visa holder, and to the Department of Home Affairs, in the giving of documents, but as stated above, the terms of reg 2.55 provide for the prescribed methods of giving documents, including by sending the documents to a post office box, to the person’s residential address, or to a nominated email address.
[7] Citing sub-regs 2.55(3)(b), (c) and (d).
The Applicant nominated Mr Nguyen as her authorised recipient under s 494D. For individuals who may have difficulties with reading and understanding English, or who require assistance with legal processes, it is unsurprising that a person might wish to nominate another (e.g. a migration agent or other representative) to receive documents in relation to their case.
Further, reg 2.55(8) deems a person to have received a document electronically transmitted in accordance with reg 2.55(5). It is beyond question that the scheme in reg 2.55 – and the statutory scheme reflected in s 494C– do not rely on actual (let alone “personal”) notice.[8]
[8] Citing Sainju at [56].
The purpose behind the respective schemes providing for deemed receipt, his Honour opined, was to achieve “administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred”.[9]
[9] Citing Sainju at [58].
The Applicant submits that she was not personally given the written notice required by s 501G(1) of the Act, and therefore she has not been validly notified of the decision. Neither s 501G(1) nor reg 2.55 (or s 494D(2) for that matter) requires that a notification be “personally given” to the Applicant. The real issue is whether the email address to which the Non-revocation Decision notification was sent was the last email address or other electronic address known to the Minister. It was. Mr Nguyen was authorised by the Applicant under s 494D to receive documents in connection with the revocation request on her behalf and it was reasonable for the Minister to identify from the information in the Department’s possession that the [email protected] was Mr Nguyen’s last known email address for the purposes of reg 2.55.
Ground 2

The Applicant’s alternative ground that she had not validly appointed an authorised recipient, therefore she was not properly served, should be rejected.
The Applicant’s indication on the Form 956 that the “type of assistance” (Question 15) was an “Application process”, and indeed in that respect, assistance with “All immigration matters”, is sufficient for the Tribunal to conclude that the Applicant was authorising the Department to communicate with her by sending documents to Mr Nguyen at the email address [email protected] (Question 7).
The Applicant (through her migration agent) submitted the completed Form 956 to the Department at the same time as the revocation request documents. There is no evidence, or suggestion, that the Applicant had made any other application for a visa at around this time. The most compelling inference to draw on the face of the Form 956, and all relevant circumstances, is that the Applicant appointed Mr Nguyen as her representative for the purposes of the revocation request process. This is consistent with the terms of the revocation request form itself.
CONSIDERATION
Ground 1
The fallacy in the Applicant’s ground 1 is evident in its opening contention reproduced in [16] above. As the opening words of the Applicant’s contention make clear, in order for the construction contended by the Applicant to be correct, s 501G(3) and reg 2.55 must be “read in isolation from s 494D”.[10] Such an approach would be contrary to the usual rule of statutory construction that legislation must be read as a whole.[11] There is no basis for reading s 501(3) or reg 2.55 in isolation from s 494D of the Act.
[10] Applicant’s submissions para 21.
[11] Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1 at [28] per French CJ, Hayne, Kiefel and Bell JJ.
Section 501G(3) and reg 2.55 which, as the Applicant notes, is largely reflective of s 501G(3), prescribe how the notice of decision (in this case under s 501G(1)) is to be given. They deal with the mechanics of how service is to be effected. Section 494D deals with a different issue, namely, upon whom service of documents must or may be effected. It is, therefore, not surprising that, as noted by the Applicant, neither s 501G(3) nor reg 2.55 makes provision for an authorised or third party recipient. That is not the subject matter of those provisions.
Contrary to the Applicant’s contention, there is nothing in the drafting of either s 501G(3) or reg 2.55 which is inconsistent with the service as prescribed by those provisions being effected on an authorised recipient appointed under s 494D. Nor is there anything in the drafting of s 494D to suggest that it would not apply to documents required to be served under s 501G(3) or reg 2.55.
The Applicant argues that the use of the word “person” throughout s 501(1) “must mean the person the subject of the cancellation-related decision”.[12] Obviously that is the case, however, it does not advance the Applicant’s argument. Section 494D similarly uses the word “person” throughout. The “person” referred to in s 501G(1) is simply the first person (as that term is defined in s 494D). That is the purpose and effect of s 494D, to make the “person” upon whom the Minister must serve the documents under s 501G(3) the authorised recipient (as that term is defined in s 494D).
[12] Applicant’s submissions para 21.
I also agree with the Minister’s observation reproduced at [32] above that the Applicant’s argument that she had to be served “personally” is erroneous. It seems that the Applicant’s argument transmogrifies the word “person” in s 501G(1) into an obligation to effect service “personally”. There is no legal or logical basis for that transformation. Further, it ignores the purpose and wording of s 494D, in particular s 494D(2), which provides that service on an authorised recipient is taken to be service on the person upon whom the Minister is obliged to effect service.
The obiter comments of Judge Mercuri in EIA18 do not assist the Applicant. Her Honour made no decision on the point in issue in these proceedings. Further, even her Honour’s obiter comment was far from conclusive. Her comment at [67] was that:
Notwithstanding the concession made by the first respondent, in my view, section 494D arguably does not apply to notification required to be given under regulation 2.55.
(Emphasis added)
With respect, I also think that her Honour’s reasoning in the preceding paragraph to that quoted above that, because reg 2.55 prescribed “… the only way that the first respondent can give notice” therefore “there is not work for section 494D” is not correct for the reasons set out above. Regulation 2.55 deals with how service is to be effected; s 494D operates independently and deals with upon whom (in the manner prescribed by reg 2.55) service can be effected. They are not inconsistent and reg 2.55 does not operate to exclude s 494D.
For the same reasons, the Applicant’s reliance on the principles emerging from Anthony Hordern, as restated by Rares J in BAL19 v Minister for Home Affairs,[13] do not advance the Applicant’s case. Contrary to the Applicant’s argument, s 494D and the ability to appoint an authorised recipient does not operate to alter or restrict the operation of s 501G(3) or reg 2.55, it simply allows, or requires in some cases, service by the means prescribed to be effected on an authorised recipient. No “uncertainty” is created as the provisions are not inconsistent as they deal with different issues and can work side-by-side.
[13] [2019] FCA 2189; 168 ALD 276 at [68].
While both parties advised that there was no judicial authority directly on point, the Minister did bring my attention to the case of Wilson v Minister for Immigration and Citizenship[14] which was a case involving an application under s 476A(1)(b) of the Act for review of a decision of the Tribunal that it did not have jurisdiction to review the decision of the Minister to cancel the applicant’s visa. At [2] Edmonds J said:
The Minister was required to give the applicant notice of the cancellation decision pursuant to s 501G(1) of the Act.
[14] [2012] FCA 1421.
Under the heading “Factual background”, at [6] his Honour noted:
On 4 March 2010 the applicant, pursuant to s 494D of the Act, gave the Minister written notice of the name and address of another person authorised by the applicant to receive documents in connection with matters arising under the Act or the Migration Regulations 1994 (Cth)…
In that case the Minister’s delegate’s decision to cancel the applicant’s visa under s 501(2) was sent to the authorised recipient appointed under s 494D. While in that case the authorised recipient did not receive the notice of decision for some time which resulted in the application to the Tribunal being out of time, there was no issue with the notice of the decision being sent to the authorised recipient appointed under s 494D. His Honour noted at [17] that:
The starting point is s 501G(1), which requires the Minister to give a person written notice of a decision to cancel a visa setting out the decision, reasons for the decision and the person’s right to have the decision reviewed by the Tribunal.
While the ultimate issue in that case was whether notice of decision as sent to the authorised recipient under s 494D complied with the requirements of 501G(1)(f)(ii), his Honour clearly had no issue with a written notice of decision required to be served under s 501G(1) being sent to an authorised recipient appointed under s 494D.
I find that service of a notice of decision under s 501G(1) can be given to an authorised recipient appointed under s 494D of the Act. Ground 1 fails.
Ground 2
The Applicant relies on a lack of clarity in the Form 956 by which it is claimed Mr Nguyen was appointed as an authorised recipient. The Applicant says that “it is completely unclear what matters the Applicant’s then representative had been appointed to assist with”.[15]
[15] Applicant’s submissions para 28.
There is some merit to the Applicant’s argument. The Form 956 is a poorly drafted and confusing document. It is a document which must be completed by both the applicant for a visa (or a person who is seeking revocation of cancellation of a visa) and the authorised recipient/migration agent being appointed. Rather than the Form 956 providing a section specifically saying, “I appoint X as an authorised recipient for receipt of documents in connection with Y”, one has to go to various sections of the form to extract that information.
The critical parts of the Form 956 for present purposes are as follows:
Part A – New appointment
Registered migration agent/exempt person
In this part the Applicant, or probably more likely Mr Nguyen who is a registered migration agent, filled in Mr Nguyen’s details including his address, his telephone numbers and email address. Question 7 under this part of the Form 956 asked:
Do you agree to the Department communicating with you by fax, email or other electronic means?
The “yes” box was ticked.
Under the heading “Type of assistance”, question 15 of the Form 956 asked:
Are you providing assistance with an application process, a cancellation process or specific matter? (tick one only)
The box “Application process” was ticked and in the box “Type of application” the words “All migration matters” were inserted.
Question 17 under the heading “Authorised recipient” asked:
Have you been authorised to receive written communications on behalf of your client(s) in relation to the matter indicated in Question 15?
The “yes” box was ticked.
In Part C “Declarations” under the heading “Declaration by registered migration agent/exempt person”, Mr Nguyen signed the following declaration:
Appointment – I declare that I have been appointed by the client named in Part A of this form as a registered migration agent/exempt person and that I will act on the client’s behalf as permitted by law.
Under the heading “Declaration by client”, the Applicant signed the following declaration:
Appointment – I declare that I have appointed the registered migration agent/exempt person named in Part A of this form to provide assistance in the matters indicated in this form.
The critical parts of the Form 956 for present purposes are the declaration by the Applicant that she has appointed Mr Nguyen “to provide assistance in the matters indicated in this form” and the indication in the form in the answer to question 17 that the “authorised recipient” has “been authorised to receive written communications on behalf of [the] client”.
While the answer to question 15 (see [54] and [55] above) was that the assistance was in relation to an application process rather than a cancellation process, I do not consider this critical particularly when the “type of application” was identified as “all migration matters”. While the Form 956 is probably seeking a differentiation between an application for the issue of a visa and processes arising out of a visa cancellation, in one sense the application for revocation of the cancellation of a visa is an “application process”.
It is, in any event, clear that both parties took Mr Nguyen to be acting for the Applicant in relation to the Applicant’s request for revocation of the cancellation of her visa. In late February/early March 2021, Mr Nguyen emailed the Department’s National Character and Cancellation Centre requesting additional time to make a revocation request on the Applicant’s behalf. On 30 March 2021 an officer of the Department responded to Mr Nguyen’s email confirming that the timeframe for a revocation request was a “legislative requirement” and confirming that the revocation request had to be received by 1 April 2021.
On 1 April 2021 Mr Nguyen, on behalf of the Applicant, made representations to the Minister about revocation of the visa cancellation under s 501CA(4) of the Act. The representations were sent to the Department by email by Mr Nguyen from the email address [email protected]. This was the email address nominated in the Form 956. The email annexed a number of documents including a revocation request form, submissions, statements from family members, and the completed Form 956.
On 30 April 2021 the Department invited the Applicant, by email to Mr Nguyen, to provide further information relevant to the revocation decision, and attached a new Ministerial Direction, being Direction 90.[16] On 22 May 2021 the Applicant, through Mr Nguyen, responded to the Department’s request for information. Mr Nguyen sent the information from his email address [email protected].
[16] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
On 11 November 2021 Mr Nguyen sent an email to the Department (again using the email address [email protected]) asking whether the Department needed any further information or documents related to the Applicant’s case. The Department requested the following day that one of the Applicant’s submissions be re-submitted, which Mr Nguyen promptly attended to, providing the revised document by email sent on 19 November 2021.
On 23 November 2021 a delegate of the Minister made the decision to refuse to revoke the visa cancellation. On the same day the Non-revocation Decision notification was sent to Mr Nguyen by email at the email address [email protected], the email address which appeared on the Form 956.
On 11 December 2021 Mr Nguyen sent an email to the Department stating that “We have just noticed the decision” and on 13 December 2021 the Applicant lodged an application for review in the Tribunal.
While the Form 956 could have, and probably should have, spelt out more specifically that the Applicant was appointing an authorised recipient under s 494D to receive documents, including decisions under s 501, I accept that that is, in part, the purpose of the Form 956 and that, with some interpretation, it does achieve that end. I would, however, encourage the Minister to redraft the form or to prepare a new form which more unequivocally and without as much effort required, makes it clear that the applicant is appointing an authorised recipient under s 494D.
I therefore find that at the time that the Minister sent the notice of the Non-revocation Decision to Mr Nguyen, he was the authorised recipient of the Applicant under s 494D of the Act and that the Non-revocation Decision was duly served on the Applicant. Ground 2 fails.
Grounds 1 and 2 were the only issues raised by the Applicant. It is not contended by the Applicant that the notice of the Non-revocation Decision did not comply with the requirements of s 501G(1) or was otherwise deficient. Given my rejection of the grounds raised by the Applicant, I find that the Non-revocation Decision was duly served on the Applicant on or about 23 November 2021 and that the application to the Tribunal was therefore not made within the nine days after the Applicant was notified of the decision as required by s 500(6B) of the Act.
DECISION
For the reasons set out above I find that the Tribunal lacks jurisdiction to review the Non-revocation Decision. Accordingly, the application is dismissed pursuant to s 42A(4) of the AAT Act.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 16 March 2022

Date of hearing: 8 February 2022

Counsel for the Applicant: Mr H Glenister

Solicitors for the Applicant: William Gerard Legal Pty Ltd

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	8 February 2022
Counsel for the Applicant:	Mr H Glenister
Solicitors for the Applicant:	William Gerard Legal Pty Ltd
Counsel for the Respondent:	Mr G Johnson
Solicitors for the Respondent:	Sparke Helmore Lawyers