Sharma v Minister for Immigration and Multicultural Affairs - [2025] FedCFamC2G 410

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sharma v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 410

File number(s): SYG 1171 of 2020

Judgment of: JUDGE PAPADOPOULOS

Date of judgment: 27 March 2025

Catchwords: MIGRATION – judicial review – whether the Tribunal correctly found that it lacked jurisdiction in relation to the matter – whether the applicant was validly notified of the delegate’s decision to refuse to grant a Subclass 820 visa and a Subclass 801 visa – negligence of migration agent – defective notification – withdrawal of authorised recipient status once migration agent became inactive – application succeeds.

Legislation:
Migration Act 1958 (Cth) ss 66, 275, 287(3A), 306A, 306B(a), 314, 315, 347(1), 476(2)(a), 494B, 494C and 494D

Migration Agents Regulations 1998 (Cth) cll 2.8(c) and (d) of Sch 2

Migration Regulations 1994 (Cth) subregs 2.16 and 4.10(1)(a), Items 1214C(1) and 1124B(1)(b) of Sch 1

Cases cited:
Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051

Ali v Minister for Home Affairs [2019] FCA 1102

Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228

Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308

Chrysafiti v Minister for Home Affairs [2019] FCA 445

DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

Fahme v Minister for Immigration and Border Protection [2017] FCA 614

Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 54

Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17

Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501

Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434

Singh v Minister for Immigration and Border Protection [2018] FCAFC 52

Singh v Minister for Immigration and Border Protection [2020] FCAFC 31

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1401; 237 ALR 64; 96 ALD 510; HCA 35

SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73

Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23

Division: Division 2 General Federal Law

Number of paragraphs: 99

Date of last submission/s: 7 March 2025

Date of hearing: 18 December 2024

Place: Sydney

Applicant In Person

Counsel for the Respondents: Mr G Johnson

Solicitor for the Respondents: HWL Ebsworth Lawyers
ORDERS

SYG 1171 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
AMIT SHARMA

Applicant

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE PAPADOPOULOS

DATE OF ORDER:

27 MARCH 2025

THE COURT ORDERS THAT:
1.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
2.A writ of certiorari issue, removing the record of the Administrative Appeals Tribunal decision made on 18 May 2020 into this Court for the purposes of quashing it.
3.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE PAPADOPOULOS
INTRODUCTION

Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 15 April 2020. By that decision, the Tribunal found that it did not have jurisdiction to review a decision made by a delegate (delegate) of the first respondent (Minister) on 1 October 2019 to refuse to grant the applicant a Subclass 820 Partner (Temporary) (Class UK) visa (Subclass 820 visa).[1]
[1] Court Book (CB) 1.
This case requires the Court to consider matters relating to the notification of decisions made by delegates when refusing to grant a visa. Much has been written and said on this topic, particularly in terms of the proper content and manner of sending such notifications to visa applicants. In addition to the grounds raised by the applicant, I seek to resolve two specific issues raised in the course of these proceedings:
(a)whether the notification in this case complied with the requirements of s 66(2)(d)(ii) of the Migration Act 1958 (Cth) (Act); and
(b)whether the applicant was notified of the decision in the prescribed way as required by s 66(1) of the Act.
For the reasons that follow at [48] to [64], I conclude that the notification does not comply with requirements of s 66(2)(d)(ii) of the Act. Given that conclusion in relation to the primary issue, it is perhaps unnecessary for me to fully examine the secondary issue for determination. Nevertheless, I address this secondary issue at [65] to [94] as it bears upon matters of significance raised by the applicant and, more broadly, the proper administration of the decision-making function of the Minister’s Department in relation to sending decisions to persons who have applied for Subclass 820 and Subclass 801 visas, particularly in circumstances where their authorised recipient was a registered migration agent but failed to maintain that status. On that issue, I find the applicant was not notified of the decision as required by s 66(1) of the Act.
BACKGROUND AND RELEVANT FACTS
The applicant, a male national of India, arrived in Australia on 19 February 2008 as the holder of a Subclass 573 Student (Class TU) visa.[2]
[2] CB 73.
On 16 April 2018, the applicant engaged the services of Ms Manminder Grewal of Migration Assist Australia, a registered migration agent who had been issued with the Migration Agents Registration Number (MARN) 1385053 by the Migration Agents Registration Authority (MARA), to provide a range of immigration assistance services relating to the lodgment of a Subclass 820 visa application.[3]
The visa applications
[3] Exhibit 1A.
The making of two visa applications
On 19 April 2018, with Ms Grewal’s assistance, the applicant lodged two valid visa applications with the Department – an application for a Subclass 820 visa, which is a temporary residence visa, and an application for a Subclass 801 Partner (Residence) (Class BS) visa (Subclass 801 visa) which is a permanent residence visa. In making those two visa applications, the applicant provided the Department with a completed ‘Form 47SP (Internet) – Application for migration to Australia by a partner’ (Form 47SP). According to information contained in that form, under the heading:
(a)‘Contact details for second stage permanent visa’, the applicant gave his postal address and specified that all correspondence relating to the ‘second stage permanent visa’ be sent to his personal Yahoo email address (applicant’s email address).[4]
(b)‘Authorised recipient’, the applicant gave written notice to the Minister to send a migration agent, Ms Manminder Grewal of Migration Assist Australia, who had been issued with the MARN 1385053 by the MARA, all written correspondence that would otherwise be sent to him. Further, by way of that written notice, the applicant specified all correspondence, ‘including notification of the outcome of the application’ be sent to his migration agent’s Gmail email address (Ms Grewal’s email address).[5]
[4] CB 4.
[5] CB 4 to 5.
On 20 April 2018, with Ms Grewal’s assistance, the applicant’s de facto partner lodged with the Department a completed ‘Form 40SP (Internet) – Sponsorship for a partner to migrate to Australia’ (Form 40SP). By way of lodging this form, the applicant’s de facto partner sought to be approved to sponsor the applicant for the purpose of each of his Subclass 820 and Subclass 801 visa applications. At pages 3 and 4 of Form 40SP, the applicant’s de facto partner provided information in relation to her contact details. In so doing, the applicant’s de facto partner provided the applicant’s email address in this form on the understanding that all relevant correspondence would be sent to that email address as the Department prefers to communicate electronically.[6]
[6] CB 37 to 38.
On 8 October 2018, a delegate of the Minister sent an email to the applicant’s email address attached to which was a letter addressed to the applicant’s de facto partner which contained a request to provide additional information to the Department within 28 days. The subject line of this letter made reference to the applicant’s sponsorship by his de facto partner and she was requested to provide an Australian Federal Police clearance certificate in her name. On 18 October 2018, that certificate was issued by the Australian Federal Police and subsequently provided to the Department.[7]
[7] CB 53 to 57.
Ms Grewal allows her status as a migration agent to lapse
On 21 March 2019, Ms Grewal’s registration as a migration agent lapsed. She did not make an application for registration as a migration agent once her registration lapsed. Relevantly for the purposes of this case, Ms Grewal was not a migration agent for the period between 21 March 2019 and 22 October 2019.[8]
[8] Affidavit of Elizabeth Pettit sworn 28 February 2025, paragraph 6.
Two requests for information that went unanswered
On 25 July 2019, the delegate sent an email to Ms Grewal’s email address attached to which was a letter which contained a request to provide certain information to the Department within 28 days. The subject line of this letter made reference to both visa applications and the applicant was invited to put forward information or evidence demonstrating whether or not compelling reasons exist to not apply specific criteria within Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations). Further information and evidence was also requested in order to enable the assessment of whether the applicant met other criteria for the grant of a ‘Partner visa’. The delegate did not receive a response to this letter.[9]
[9] CB 59 to 63.
On 2 September 2019, the delegate sent a further email to Ms Grewal’s email address attached to which was another letter in which reference was made to both visa applications. The applicant was again invited to put forward information and evidence that had been requested on 25 July 2019. The delegate indicated that this was a ‘final opportunity’ to provide information within 28 days. Again, the delegate did not receive a response.[10]
[10] CB 64 to 67.
The delegate’s decision and its notification on 1 October 2019
On 1 October 2019, the delegate made a decision by which they refused to grant the applicant:
(a)the 820 visa because he did not meet cl 820.211 in Part 820 of Schedule 2 to the Regulations; and
(b)the 801 visa because he did not meet cl 801.221 in Part 801 of Schedule 2 to the Regulations.[11]
[11] CB 73 to 117.
On 1 October 2019, a letter notifying the applicant of the delegate’s decision (notification), along with a copy of the delegate’s decision, was sent by way of email to Ms Grewal’s email address.[12]
[12] CB 69 to 117.
The applicant’s communication with the Department in late October 2019
On 22 October 2019, the applicant sent an email to the Department which relevantly read:[13]
Good evening,
I have attached my 956 form to take care of my application by myself as I have no contact with my agent any more.
She is just ignoring my calls and email and recently I found that she is not even a registered migration agent. I have paid all my fees to her and now she just doesn’t want to communicate regarding my file.
So I have decided to take over my case and I will access my own file for further documents and requirements.
Attached to the applicant’s email was a Departmental form entitled ‘Form 956 - Advice by a registered migration agent/exempt person of providing immigration assistance’ that had been completed and signed by the applicant on 22 October 2019 (Form 956).[14] By way of this email and completed Form 956, the applicant notified the Department of his recent discovery that his authorised recipient was not a registered migration agent and requested Departmental correspondence be sent directly to his personal email address. The applicant left blank that part of the Form 956 which allowed for the provision of Ms Grewal’s MARN.
[13] CB 118.
[14] CB 118 to 121.
On 25 October 2019, the delegate sent an email to the applicant’s personal email address attaching a copy of the notification and the delegate’s decision (25 October 2019 email).[15] That email relevantly read:
Dear Mr Sharma,
I regret to advise that your partner visa was refused on 01 October 2019, in which the following records refer.
Regards,…
[15] CB 122.
The review application
The applicant sought to make an application for review of the delegate’s decision by the Tribunal. In so doing, the applicant completed an online application Form eM1 (online review application form) that was lodged electronically by way of the Tribunal’s online portal at 7.15 pm (AEDT) on 29 October 2019.[16]
[16] CB 123 to 125.
Various documents were attached to the online review application form, including a copy of the notification and the delegate’s decision. Extracted below is an excerpt from the online review application form detailing the applicant’s responses to questions beneath the heading ‘Decision to be reviewed’(certain personal information redacted):[17]
[17] CB 123.
Also attached to the online review application form was a letter addressed to the Tribunal in which the applicant explained why his review application was ‘late’.[18] By way of this letter, the Tribunal was advised the applicant had learnt through a friend, whose case was also being handled by Ms Grewal, that Ms Grewal was not a registered migration agent.
[18] CB 148 to 149.
On 5 December 2019, the Tribunal invited the applicant to comment on the validity of the application for review as it appeared that the application was not lodged within the 21-day time limit.[19]
[19] CB 155 to 156.
On 9 December 2019, the applicant provided a statement in response.[20] Again, the applicant raised various reasons why the Tribunal should consider his application and repeated his earlier complaint that he had come to learn through a friend that Ms Grewal was not a registered migration agent.
[20] CB 157 to 160.
On 15 April 2020, the Tribunal decided that it did not have jurisdiction to review the delegate’s decision in relation to the refusal to grant the applicant a Subclass 820 visa. On 16 April 2020, the Tribunal notified the applicant of that decision.[21]
[21] CB 163.
The Tribunal’s decision
In its decision record, the Tribunal:
(a)noted that, pursuant to s 347(1)(b) of the Act and reg 4.10 of the Regulations, an application for review of the delegate’s decision had to be made within 21 days after the applicant was notified of the decision;[22]
(b)stated that the material before the Tribunal indicates the applicant was notified of the decision by letter dated 1 October 2019 and dispatched by email;[23]
(c)recorded its receipt of the applicant’s two letters sent in response to its invitation to comment on the validity of the review application;[24]
(d)summarised the content of these two letters but made no mention of the applicant’s claim, which had been raised with the Department on 22 October 2019 and in each of these two letters, that he had recently learnt from a friend that Ms Grewal was ‘no longer a registered migration agent’;[25]
(e)stated that neither the claimed negligence on behalf of the agent, nor the compelling and compassionate circumstances raised by the applicant, provided a sound basis for the Tribunal to find that it had jurisdiction;[26]
(f)found that the applicant was taken to have been notified of the delegate’s decision on 1 October 2019 (reference was made to s 494C of the Act);[27]
(g)calculated that the prescribed period to apply for review ended on 22 October 2019;[28] and
(h)concluded that as the review application was not received until 29 October 2019, the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in this matter.[29]
[22] CB 165 at [2].
[23] CB 165 at [3].
[24] CB 165 at [4] to [6].
[25] CB 165 at [4].
[26] CB 165 at [8].
[27] CB 165 at [9].
[28] CB 165 at [9].
[29] CB 165 at [10].
RELEVANT LEGISLATION
Section 66 of the Act provides:
66 Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c) unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
(e) in the case of a fast track reviewable decision—state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and
(f) in the case of a fast track decision that is not a fast track reviewable decision—state that the decision is not subject to review under Part 5, 7 or 7AA.
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision.
(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Sections 494A, 494B, 494C and 494D of the Act relevantly provide:
494A Giving documents by Minister where no requirement to do so by section 494B method
(1) If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Note: Section 494D deals with giving documents to a person’s authorised recipient.
…
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.
…
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.
494C  When a person is taken to have received a document from the Minister
(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
…
Transmission by fax, email or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
…
Document not given effectively
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
494D  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.
(3A)  In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
(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
(b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
(c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).
PROCEEDINGS BEFORE THE COURT

By an application filed on 18 May 2020, the applicant sought to seek judicial review of a migration decision. Before considering the issues for determination in this case, brief mention should be made of two jurisdictional and procedural matters.
Nature of the application before the Court
It is unclear from the application whether judicial review was sought in relation to the delegate’s decision, a decision of the Immigration Assessment Authority or the Tribunal’s decision. Further, by way of final orders sought, the applicant specified in his application that he sought an order that the Tribunal decision be quashed but did not specify whether he sought a writ of mandamus directed to the Tribunal requiring it to determine his application according to law.
By way of written submissions filed on 12 December 2024, the Minister acknowledges the confusion within the application in relation to the migration decision for which review was sought and noted that the Court did not have jurisdiction to review the delegate’s decision: see s 476(2)(a) of the Act.
At hearing before me on 18 December 2024, after some discussion with the parties about the content of the application, Counsel for the Minister did not oppose leave being granted to the applicant to amend his application such that the migration decision under review was only the Tribunal’s decision and that an order for mandamus was also sought by him. Leave was thereby granted to amend the application and the application was so amended.
Request for an adjournment
On 17 October 2024, the matter was listed for hearing at 10.15 am (AEDT) on 18 December 2024. However, by way of email sent to my Associate on 4 December 2024, the Minister’s solicitors requested an adjournment in the following terms:
Dear Associate,
We refer to the above matter listed for a hearing before his Honour Judge Papadopoulos on 18 December 2024 at 10:15am. Please note that the Applicant is copied into this email but does not consent to the request for an adjournment.
We wish to draw his Honour's attention to the fact that this application raises similar issues to, and hence may be affected by, the Federal Court matter of Minister for Immigration, Citizenship and Multicultural Affairs v Kiridaran (NSD709/2024) (Kiridaran).
In that proceeding, the first respondent continues to challenge the correctness of the decision in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (Sandor). The first respondent notes that the delegate's notification letter in this matter contains similar features to the notification letter found not to satisfy s 66(2)(d)(ii) of the Migration Act 1958 (Cth) in Sandor.
In light of the above, the parties respectfully request that the hearing in this matter be adjourned pending the outcome of the Full Court’s decision in Kiridaran. If an adjournment is granted, the first respondent will inform his Honour's Chambers and the applicant of the decision in Kiridaran within 7 days of the judgment being delivered.
In any event, if the Court is not minded to adjourn the hearing of this application, the parties will seek an amendment to the timetable.
Sincerely,
I was initially inclined to accede to that request but decided not to do so after having sought and considered the applicant’s reasons for opposing the adjournment request. Those reasons were articulated in an email from the applicant to my Associate, received on 5 December 2024, which relevantly read:
Reason for opposing is that I have been waiting for this court date for more than 4 years and in total I have been waiting for more than 6 years since my case was in Tribunal. If I miss this opportunity then I have to wait till next date.
In my view, the applicant is entitled to the most expeditious consideration of their case and the Minister’s reasons for the adjournment have little force in circumstances where numerous unsuccessful challenges have been made to the correctness of the decision in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 (Sandor), including the recent Full Court decision in Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136 (Park). Further, the Minister gave no indication as to when judgment in the Federal Court matter of Minister for Immigration, Citizenship and Multicultural Affairs v Kiridaran (NSD709/2024) would be delivered. On that basis, taking into account the undue burden upon the applicant that would arise out of further delay in these proceedings, the parties were advised on 5 December 2024 that the adjournment was not granted and the matter remained listed for hearing as scheduled on 18 December 2024.
GROUNDS RAISED BY THE APPLICANT
The applicant raises the following grounds within his application (reproduced without alteration):
1.My Agent didn’t made any effort in communicating with me or immigration.
2.I supplied all required document to my agent but she ignored them.
I also note the applicant raises the following complaint in his application:
Visa refusal because my agent didn’t supply documents to Immigration.
Pre-hearing submissions
Despite having been afforded the opportunity to do so, the applicant did not file any pre-hearing submissions in order to further particularise these grounds.
By way of submissions filed on 12 December 2024, the Minister submits that the applicant’s grounds allege that he provided all of his documents to Ms Grewal and these were not forwarded to the Tribunal. The Minister acknowledges there appears to have been some negligence on Ms Grewal’s part but argues that mere negligence, inadvertence or incompetence will not suffice to establish fraud on the process of the Tribunal that warrants judicial intervention: see Chrysafiti v Minister for Home Affairs [2019] FCA 445 at [14], citing SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 at [52], in turn citing Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501. The Minister maintains the applicant has not provided sufficient evidence to establish fraudulent conduct on the part of Ms Grewal: see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [15] (SZFDE); Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 at [144] point [8]. The Minister further submits the material provided to the Tribunal neither evidenced fraud on Ms Grewal’s part nor was relevant to the Tribunal’s consideration as to whether it had jurisdiction: see Fahme v Minister for Immigration and Border Protection [2017] FCA 614 at [33].
Oral submissions and evidence tendered at hearing
At hearing before me, the applicant elaborated upon his grounds. The applicant’s oral submissions, taken at their highest, are summarised as follows. He gave various relevant documents to Ms Grewal but she failed to submit them to the Department. He attempted to contact Ms Grewal over a period of some months but she did not respond. He then contacted the Department to seek an update on his case. He was advised by a Departmental officer to authorise the Department to correspond with him directly. Once he gave that written authorisation to the Department, he received the 25 October 2019 email which informed him that his visa applications had been refused on 1 October 2019.
At hearing, the applicant also sought to tender further evidence for the purposes of demonstrating he had engaged Ms Grewal to assist him and had provided various relevant documents to her while his visa applications were being considered by the delegate but she did not forward these to the Department. The applicant contends that some of these documents were provided to the Minister’s solicitors by way of email on 5 December 2024. I accepted the applicant’s bundle of documents into evidence as Exhibit 1A, subject to relevance. My Associate forwarded a copy of this entire bundle of documents by email to the Minister’s solicitors during the hearing and I allowed the Minister the opportunity to make submissions on their relevance. Counsel for the Minister did not object to me taking into account:
(a)documents detailing the applicant’s provision of evidence to Ms Grewal while the visa applications were being processed, subject to their relevance;
(b)documents detailing the contractual arrangement between the applicant and Ms Grewal, the payment of some fees by the applicant to Ms Grewal and email correspondence relating to these documents, as long as these were adduced to prove particular interactions between the applicant and Ms Grewal; and
(c)documents that go towards establishing the relationship of the applicant having authorised his migration agent, Ms Grewal, to be his representative in connection with ‘his visa application’.[30]
[30] T p 6 line 26 to p 7 line 5.
By way of oral submissions, Counsel for the Minster submits that it is not sufficient for there to be a jurisdictional error by the Tribunal in finding that it lacked jurisdiction for the applicant to assert, or even prove, that his failure to apply to the Tribunal on time arose as a consequence of Ms Grewal not being responsive to letters sent to her by the Department.
In relation to the applicant’s submission that Ms Grewal did not provide documents to the Department that she ‘should have’, Counsel for the Minister acknowledges this submission does have ‘some support’ in the documents handed up by the applicant but maintains for jurisdictional error by the Tribunal to be made out, Ms Grewal’s actions needed to constitute fraud, which is not borne out by the evidence, with reference again made to SZFDE.[31]
[31] T p 21 line 41 to p 22 line 34.
Post-hearing submissions
By way of post-hearing submissions filed on 24 December 2024, the Minister did not further address these grounds.
By way of email addressed to my Associate on 6 January 2025, the applicant continues to press his earlier submission that Ms Grewal stopped communicating with him ‘a few months before [his] visa refusal’ and she did not forward his relevant documents to the Department. The applicant further submits the Department erred in failing to communicate with him at his personal email address because it knew that address as it had sent a letter to his de facto partner at that address on 8 October 2018 in which she had been requested to provide an Australian Federal Police clearance certificate.
Further post-hearing submissions
By way of further post-hearing submissions filed on 28 February 2025, the Minister notes the applicant’s submission that he sent documents to Ms Grewal to pass on to the Department, and having paid her to fulfil her role as a migration agent, she failed to do so. The Minister submits that the applicant’s complaints ‘might fairly point to negligence or incompetence on the part of Ms Grewal, but they do not point to fraud’ and that ‘[t]here is no evidence that Ms Grewal sought both to deceive the applicant and the Department’. These submissions were made despite it having only become apparent to the Court on 28 February 2025, due to the Court’s insistence for the provision of evidence on this issue, that Ms Grewal’s registration as a migration agent had lapsed on 21 March 2019 and that, relevantly, she was not registered as a migration between that date and 22 October 2019.
By way of documents filed on 7 March 2025, the applicant, and his de facto partner who sought to sponsor the two visa applications, continue to press the applicant’s complaint in relation to Ms Grewal’s conduct. In one of these documents, the applicant’s de facto partner expressed her concern with the Minister’s position in the following terms:
The Minister standing firm on this matter is overlooking I feel the fact that we had no knowledge of anything that was being requested of us, for if we had known we would have immediately acted for what was needed. The Minister and department could have contacted us directly if there was no reply from Mandy Grewal as both Amit and I had given our contact details while filing the application, for such an important matter relating to our visa application.
Consideration
Having considered the parties’ submissions, I agree with the Minister and find that the applicant’s grounds raised in his review application, including by way of further elaboration at hearing and in post-hearing submissions, do not succeed.
The applicant’s grounds as pleaded largely take issue with Ms Grewal’s conduct in failing to relay his documents to the Department and in failing to communicate with him in the ‘few months before’ his visa applications were refused by the Department. The applicant has not contended, and it is otherwise not apparent to me, that Ms Grewal’s conduct gave rise to fraud in the sense which invalidates the making of the Subclass 820 application and the Subclass 801 visa application. While I have sympathy for the applicant, it remains that he neither properly asserts nor proves fraud on Ms Grewal’s part. When taken at their highest, the applicant’s submissions and evidence do not indicate fraudulent conduct of the kind that might possibly disturb the validity of the visa applications made in April 2018 or have otherwise affected the Tribunal’s decision-making process. Ms Grewal’s failure to communicate with the applicant and her failure to forward to the Department any relevant documents given to her by the applicant may well be an omission on her part that gives rise to a claim of negligence. It is well established that a migration agent’s negligence or inadvertence in the carriage of an applicant’s case will not necessarily be sufficient to give rise to invalidation of a visa application or a fraud on the Tribunal. In this case, there is no indication that Ms Grewal acted in a way that directly impacted upon the Tribunal’s decision-making process: see Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 at [33]; SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1401; 237 ALR 64; 96 ALD 510; HCA 35. Therefore, the applicant’s grounds cannot succeed as they fail to rise above a claim of bare negligence. On that basis, jurisdictional error has not been made out by these grounds.
For the sake of completeness, I also reject the applicant’s complaint that the Department somehow erred in failing to communicate with him about his visa application by not addressing correspondence to his personal email address, rather than Ms Grewal’s email address, because the Department had demonstrated knowledge of his personal email address by way of communication sent to that address on 8 October 2018. That communication was sent pursuant to reg 1.20KB(11) of the Regulations which enables the Minister to request a sponsor provide police checks. That communication was properly addressed to the applicant’s de facto partner and properly sent to her by way of the authorisation she gave to the Department to communicate with her at the applicant’s personal email address by way of her completion of Form 40SP that had been received by the Department on 20 April 2018.[32] The Department was not authorised to communicate directly with the applicant about his visa applications by way of the authorisation provided by his de facto partner in that particular form.
[32] CB 35 to 47.
Finally, to the extent that the applicant takes issue with the Department’s failure to contact him directly following the lack of response to the two requests for information sent to Ms Grewal on 25 July 2019 and 2 September 2019 respectively, that is a matter which relates to the making of the primary decision and is beyond the jurisdiction of this Court: see s 476(2)(a) of the Act. Nevertheless, that complaint is indicative of a broader concern with the Department’s practice of continuing to communicate with an applicant’s authorised recipient in circumstances where that person had been a migration agent when so authorised but their registration has lapsed. It is troubling to observe a situation where the Minister’s Department, which governs the migration agents registration scheme and is aware of when persons become and cease to be registered as migration agents, continues to send important correspondence to former registered migration agents without any appreciation of the real risk that such correspondence will not be relayed to a visa applicant and the adverse consequences to the applicant, and undue burden on the Tribunal and the courts, that may flow from that kind of approach to administrative decision-making. That Departmental practice is not ideal from the perspective of ensuring consistent and proper administration of decision-making, particularly in circumstances where two previous letters sent to Ms Grewal when she was no longer registered as a migration agent went unanswered and had perilous consequences for the applicant and his de facto partner. Nevertheless, this Court acknowledges that standards governing the proper administration of the decision-making function of the Department is a matter entirely for the Minister. That said, it is within this Court’s jurisdiction to assess whether the notification had been properly sent to the applicant in accordance with s 66(1) of the Act, a secondary issue explored later in these reasons.
PRIMARY ISSUE FOR DETERMINATION
Does the notification letter comply with s 66(2)(d)(ii) of the Act?
Consistent with his duties as a model litigant, the Minister properly identified by way of written submissions filed on 12 December 2024 that, as a consequence of the judgment in Sandor, it is necessary for the Court to examine the notification letter and determine whether it complies with s 66(2)(d)(ii) of the Act.
The Minister refers to a range of authorities in which consideration is given to the meaning of ‘state’ within s 66(2)(d) and guidance provided in terms of whether a particular notification fell short in that regard. Those authorities include DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17), Sandor, Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 (Singh), Park,Ali v Minister for Home Affairs [2019] FCA 1102 (Ali) and Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051 (Abbas).
In DFQ17, Perram J (with whom Rares and Farrell JJ agreed) concluded that the word ‘state’, as it appears in s 66(2), means that the notification must set out the information in each of the subsections in a way which is not only complete but clear: at [58]. That fulsomeness and clarity was demanded given the strictness of the review system provided by the Act: at [57]. The Full Court found the notification did not state the period in which to apply for review because the information in that regard was ‘piecemeal, entirely obscure and essentially incomprehensible’: at [62].
In Singh, Thawley J warned that an examination of the contents of a notification does not involve any departure from the words in s 66(2)(d)(ii) and replacement of them with judicial words of explanation. Instead, the examination involves a consideration of whether any given notification letter ‘is clear, or complete, or capable of being understood by a person exercising reasonable care in the circumstances’: at [10].
In Sandor, Markovic J found the notification in that case to be ineffective as it did not state information in a way which was complete and clear because it did not state the time in which the application for review may be made either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the letter: at [52]. Her Honour found the notification defective as it required the recipient of the letter to ‘piece together the facts which would allow him to know the time in which an application for review may be made’. In order for the applicant in that case to understand ‘the day the letter was transmitted’, a phrase which appeared in the notification and was necessary to understand in order to determine when the review period commenced, he needed to ‘identify to whom the letter was transmitted by reference to other aspects of the letter; and then put together other pieces of information to enable him to calculate the time in which the application for review may be made’: at [51].

In Park, the Full Court held that the determination of whether a notification states the time in which a review application may be made depends ‘upon the relevant objective facts and the form of the notification’ and is a question of fact: at [28]-[29]. The Court observed that the notification before it was in ‘materially the same terms’ as the notification letter in Sandor: at [20]. The Court found that there was no legal error in the reasoning of Markovic J in Sandor: at [31]. The Court proceeded to examine the notification before it and found it did not comply with s 66(2)(d)(ii), reasoning at [39]:
In this case, although the notification conveyed the information necessary to convey to a careful reader with knowledge of the date the email was transmitted to the authorised representative the time in which an application for review had to be made, the information was not conveyed in a sufficiently clear manner to ‘state ... the time in which the application for review may be made’ for the purposes of s 66(2)(d)(ii) of the Act. Leaving to one side the question of whether the references to ‘you’ in the letter created confusion in circumstances where the letter was sent to the authorised representative and dealt with multiple visa applicants, there was no obvious or logical connection between the reference to the commencement of the 21-day period (the day on which the visa applicant is taken to have received the letter) under the heading ‘Review rights’ and the reference to the day on which the visa applicant was taken to have received the letter under the heading ‘Registries of the Administrative Appeals Tribunal’. The lack of clarity was compounded by the length of the letter, the remoteness of the references to the time of receipt of the letter from the references to the commencement of the 21-day period and by multiple references to the 21-day period for multiple visa applicants. While it might be thought that there was good reason for a single reference to the day on which the letter was taken to have been received for the commencement of the 21-day period for all visa applicants, unlike the letter in Singh, the purpose of that reference to the day on which the letter was taken to have been received was not expressed under a separate heading that made it obvious that the reference to the time of receipt of the letter was linked to earlier references in the letter to the 21-day periods.
In the present case, the body of the notification reads as follows (certain personal information redacted):[33]
[33] CB 69 to 72.
The Minister submits the facts of the present case are sufficiently different to those in Sandor and, in any event, Sandor is limited to its very particular facts and cannot be applied further. He also notes that, as a matter of fact, the applicant never asserted he did not understand the relevant time limit for making his review application and, to the contrary, correctly identified the date of notification of the delegate’s decision in his online review application form.[34]
[34] CB 123.
The Minister further submits that the answer to the factual inquiry in this case, for an applicant taking reasonable care to read the notification in the circumstances of this case, should be that the notification letter in this case clearly stated the time in which an application for review may be made because:
(a)the letter correctly set out relevant information necessary for the reader to understand the time in which an application for review had to be made;
(b)the letter was sent to the email address nominated by the applicant for communications to him by way of his authorised recipient;
(c)the information was set out under relevant headings (first, under a heading directing attention to ‘Review rights’, and secondly, ultimately under a heading directing attention to ‘Lodging an application for merits review’);
(d)the applicant understood the date of his notification (having identified it in his online review application form) and the letter expressly stated he had 21 days from the date of that notification; and
(e)the terms of the statements that together informed the reader of the period in which an application for review may be made contained similar language regarding the concept of when the letter was ‘taken to have [been] received’ such that the reader would reasonably understand that the two statements should be read together.
Nevertheless, the Minister accepts that if his submissions were rejected by the Court, the notice given to the applicant on 1 October 2019 was ineffective and therefore the Tribunal was incorrect in finding that it did not have jurisdiction to conduct the review that had been applied for.
Consideration
Subregulation 4.10(1)(a) of the Regulations specifies that the period in which this particular application for review must be given to the Tribunal, for the purposes of s 347(1)(b) of the Act, ‘starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received’. While the regulation specifies the period as having a start date and an end date, a start date is specified because it is necessary in order to calculate the end date, not because of any apparent intention that a person cannot invoke the Tribunal’s jurisdiction before that start date. As for the Act itself, s 347(1)(b) requires an application to be made ‘within the prescribed period’. But the constraint on the prescribed period it then imposes does not include a start date. Rather, the purpose and effect of the section is to set an end date, after which a valid application for review cannot be made: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 (Parata) at [72].
Having reviewed the notification, I am of the view that it does not state the time in which the application for review may be made. I find the notification, insofar as it purports to state the period in which the review application may be made, is not sufficiently clear, or complete, or capable of being understood by a person exercising reasonable care in the circumstances. Rather than specify a date after which a valid review application could not be made, the delegate chose to provide the applicant with a range of information in order to ascertain for themselves when the relevant 21 day period starts and ends. That information was set out in a piecemeal fashion across a four-page letter which contained a series of headings in the same font and font size. For the purpose of examining the notification’s compliance with s 66(2)(d)(ii) of the Act, I have identified the location and substance of the relevant information in the notification as follows:
(a)On page 1, the notification is dated 1 October 2019 and is addressed to the applicant at his residential address;
(b)Further down on page 1 of the notification, the following information appears:
Transmission method Email sent to [email protected]
(c)Under the heading ‘Review rights’, the following information appears across pages 1 and 2 of the notification:
The decision can be reviewed.
We cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.
This review period is prescribed in law and an application for merits review may not be accepted after that date
(d)On page 3 of the notification, beneath a heading ‘Registries of the Administrative Appeals Tribunal’, the following information appears:
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
(e)On page 4 of the notification, beneath the delegate’s signature block, the notification concludes with the following information:
The original of this letter including any attachments was sent to:
Manminder Kaur GREWAL
[email protected]
Like Markovic J in Sandor, I find the notification requires a person to ‘piece together the facts which would allow them to know the time in which an application for review may be made’. In terms of enabling the person to determine the period, the notification requires them to identify relevant pieces of information across four separate pages, understand how those apparently disparate pieces of information interact with each other and then calculate the relevant period. Even allowing for the notification being read with a reasonable level of care, the notification lacks sufficiently clarity for the purposes of stating the period in which a review application may be made. While the duration of the 21 calendar days period is clearly provided, the notification is less than clear in terms of conveying sufficient information to enable a person to ascertain that the period commences at the end of the day it was transmitted to the authorised recipient rather than the day on which it was received by the applicant to whom the notification was addressed. It is conceivable that an authorised recipient may not provide a notification letter to an applicant until sometime after the day on which the letter was transmitted. In circumstances where the notification was addressed to the applicant at his residential address but sent by email to his authorised recipient, and in the absence of explanation in the letter of the deeming effect of s 494D(2) of the Act, there is potential for confusion in this letter as to when the period commences. In that regard, the notification was not sufficiently clear so as to ‘state’ the time in which the application for review may be made. Furthermore, the absence of explanation in the notification of the deeming effect of s 494D(2) is not cured by way of the applicant’s provision of written notice for s 494D purposes within Form 47SP as that form was an entirely separate document which the delegate did not refer to in the notification.
I reject the Minister’s submission that the facts in this case are sufficiently different to those in Sandor such that the present notification is not defective. A comparison of the notifications in this case and Sandor reveals that the notification in this case is, in my view, less clear than the one in Sandor. In Sandor, the information described at sub-paragraph 59(d) above appeared under the more logical heading ‘Receiving this letter’. In that respect, I find the present notification to be even more confusing than the notification in Sandor as it presents critical information needed to determine the commencement of the relevant period beneath an unrelated heading ‘Registries of the Administrative Appeals Tribunal’ alongside other information relating to where and how the application for review can be made rather than when it is to be made. In this case, there was no obvious or logical connection between the reference to the commencement of the 21 day period on page 3 of the notification and the heading under which the reference appeared: see Park at [39]. It is therefore, in my view, not obvious to the reader how to connect that information to other pieces of relevant information scattered across pages 1, 2 and 4 of the notification in order to then determine when the relevant period commences.
While not determinative in this case, I note the Minister’s submission that the present notification is largely in similar terms and layout to the notification letter in Ali, a case in which Nicholas J found the notification to be effective. In Ali, the information described at sub-paragraph 59(d) above appeared beneath the subheading ‘Registries of the Administrative Appeals Tribunal’ which was beneath a heading ‘Lodging an application for merits review’. Beneath that heading was a suite of information relating to how an application for review can be lodged. In that respect, I find the present notification to be significantly dissimilar to the notification in Ali as it does not contain the more logical heading and subheading structure of the notification in Ali which provided clearer signposts to the reader. On that basis, the present notification is, in my view, more piecemeal in its presentation and therefore less clear than the one examined by the court in Ali.
Finally, I reject the Minister’s submission that the factual inquiry to be undertaken in this case involves some consideration of the applicant’s understanding of the period in which the application for review may be made. While the authorities refer to the need for consideration of objective facts, such as to whom the notification was sent and by which method, I do not read that to require any assessment of the applicant’s understanding of the notification which might be deduced from the applicant’s action or inaction. As Justice Gray held in Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308 at [49], the question of whether there had been compliance with s 66(2)(d)(ii):
cannot depend on what the recipient or intended recipient of the purported notification does or does not do, whether before or after purported notification is sent or received. The question of compliance is apparent on the face of the document itself. If there has been non-compliance, in my view, there is not a notification for the purposes of the legislative scheme that depends upon satisfaction of the requirements of s 66.
As her Honour Judge Laing keenly observed in Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 54 at [28], ‘[t]he visa applicants in Sandor and Park were not required to demonstrate that they were subjectively unable to understand the correspondence’. I agree with that observation and share her Honour’s view that the question, rather, is whether the notification, as a matter of fact, stated the time in which the application for review may be made for the purposes of s 66(2)(d)(ii) of the Act. For the above reasons, I find that it did not.
SECONDARY ISSUE FOR DETERMINATION
Was the applicant was notified of the decision in the prescribed way as required by s 66(1) of the Act?
In the course of oral submissions at hearing, I drew the parties’ attention to the following part of Form 47SP detailing the applicant’s responses to questions beneath the headings ‘Contact details for second stage permanent visa’ and ‘Authorised recipient’ (certain personal information redacted):[35]
[35] CB 4 to 5.
Having done so, I raised a potential issue as to whether the applicant had been properly notified of the decision in the prescribed way: see s 66(1) of the Act. To that end, the parties were alerted to the requirement for the Minister to notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Act: subregs 2.16(1) and (3) of the Regulations. I observed that the decision in this case detailed a refusal to grant two visas to the applicant, the Subclass 820 visa and the Subclass 801 visa. In that context, I queried whether the applicant had been properly notified of the decision in relation to the refusal to grant both visas as required by s 66(1) of the Act. I further observed that the Tribunal’s decision only indicated consideration of the review application not having properly been made in relation to a decision to refuse to grant a Subclass 820 visa to the applicant. I invited submissions from the parties in relation to these matters.
Oral submissions
At hearing, the applicant did not address these particular matters. By contrast, Counsel for the Minister engaged with these matters at hearing by way of making the following oral submissions:
(a)The Minister acknowledges that the applicant had made two separate visa applications – one for a Subclass 820 visa and another for a Subclass 801 visa. The scheme operates in a manner where these applications are made ‘together’ but an applicant would not qualify for the Subclass 801 visa until they have been granted and hold the Subclass 820 visa. The scheme generally operates in manner where the qualification for the Subclass 801 visa arises two years after the applicant has held a Subclass 820 visa.[36]
(b)The applicant’s provision of his migration agent’s email address in the ‘Authorised recipient’ section of Form 47SP must be read such that it permitted the Department to communicate with the applicant via his migration agent’s email address in relation to all aspects of both visa applications. Counsel for the Minister explained:
MR JOHNSON: ‑ ‑ ‑ it may be that, as your Honour says, it can come down to consideration of what is conveyed in the form. My submission is, when one looks at what appears at pages 4 and 5 concerning the provision of Ms Grewal’s email address, that that was the address that was provided for the purposes of the Department communicating with the applicant for all purposes in relation to the visa application that was made. So it was a combined application. But in my submission, the authorised recipient details having been provided for that purpose is, of course, a consequence of providing those details. That is because the applicant is telling the Department that it wants the Department to communicate with a particular individual in relation to the visa application. And so whilst there are other contact details provided in that form, in my submission, the provision on Ms Grewal’s details are important and was authority given by the applicant for the purposes of the Department communicating with him about that matter.
[36] T p 18 lines 13 to 17.
Post-hearing submissions
By way of email addressed to my Associate on 6 January 2025, the applicant did not address these matters.
By way of post-hearing submissions filed on 24 December 2024, the Minister contends that it is unnecessary for the Court to address the issue of notification as it relates to the Subclass 801 visa because it was not raised in the application filed with the Court and it is sufficiently clear from the visa application form that the applicant gave the Department his migration agent’s details as a person authorised to receive documents in connection with specified matters arising under the Act or the Regulations. The applicable ‘specified matters’ for the purposes of s 494D of the Act, in the Minister’s view, were the applicant’s Subclass 820 and Subclass 801 visa applications as described in Form 47SP. Further, whilst the Minister acknowledges the applicant gave his personal email address in connection for the purpose of receiving all correspondence relating to the Subclass 801 visa, the Minister submits it is not a matter for the Court to attempt to discern the applicant’s intentions in completing Form 47SP and reiterates that the Department was required to send all correspondence to the migration agent as she was the applicant’s authorised recipient.
Further post-hearing submissions
Following a directions hearing on 14 February 2025, during which I raised a number of additional matters upon which evidence and written submissions were sought, the parties helpfully provided further material relevant to the determination of the secondary issue. In particular, I sought evidence of Ms Grewal’s migration agent registration status during the period between 19 April 2018 (when the visa applications were made) and 22 October 2019 (the date by which the prescribed period in which to make a review application ended assuming the notification complied with s 66(2) of the Act). I drew the parties’ attention to the possibility that the notification may have been sent to Ms Grewal’s email address in circumstances where she was no longer a registered migration agent. If this jurisdictional fact were to be established, I invited written submissions from the parties to address the specific question whether Ms Grewal was the applicant’s authorised recipient, particularly whether the scope of the authorisation provided by the applicant in Form 47SP was confined in any way including by way of Ms Grewal having to maintain her registration as a migration agent.

By way of written submissions filed on 28 February 2025, the Minister raises the following relevant points:
4. Consistently with the Minister’s submissions advanced in this case, the applicant appointed Ms Grewal as his authorised recipient. He did this by completing the Form 47SP such as to give the Minister “written notice of the name and address of another person … authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations”: s 494D(1) (CB 4-5). The consequence of having provided these details is that the Minister was required to give Ms Grewal, instead of the applicant, any documents in connection with those matters that the Minister would otherwise have given to the applicant.
5. There is a question whether the scope of the authorisation the applicant provided was confined in any way including by way of Ms Grewal having to maintain her registration as a migration agent. Whether there is, or not, depends on a proper construction of s 494D(1). Section 494D(1) requires the provision of “written notice” of the name and address of another person “authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations”. Subject to s 494D(5) – which is addressed below - the provision does not itself require, or require that the Minister determine, after the fact of the provision of the written notice whether the authorisation of the authorised recipient has lapsed or ceased.
6. There are good reasons not to interpret s 494D(1) as if it had implicitly some form of limitation.
7. First, s 494D was designed to enable certainty of transmission of documents from the Minister to a recipient: see Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23, [24] (Dowsett, Stone and Bennett JJ) cited in Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228, [40]. An implicit limitation on the Minister’s obligation to give documents to an authorised recipient who was authorised at the time of the giving of the written notice would introduce uncertainty, contrary to the objectives of provisions such as ss 494A, 494B, 494C and 494D.
8. Secondly, s 494D itself contemplates and provides for the circumstances in which the authorisation for the giving of documents to an authorised recipient is varied or withdrawn: s 494D(3).
9. Thirdly, there was no requirement in s 494D(1), and it was not a condition of s 494D(1) applying, that the authorised recipient be a registered migration agent. Having said that, s 494D(5) provides that the Minister does not “need” to comply with s 494D(1) if the authorised recipient is not a registered migration agent (within the meaning of Part 3), and the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part), and the Minister has given the first person a notice, by one of the methods specified in s 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).
10. Section 494B(5) did not operate in this case to enable the Minister to avoid the imperative in s 494B(1) because there is no basis for the Court to find that the Minister reasonably suspected that Ms Grewal was giving immigration assistance at a time when she was not a registered migration agent, and the Minister did not give the requisite notice in s 494B(5)(c). On the former point, “immigration assistance” is defined in s 280 of the Act. Importantly, a person does not give immigration assistance merely because the person “passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information”: s 276(3). That is, the Minister cannot have suspected that Ms Grewal was giving immigration assistance (merely by being, or performing the services of, an authorised recipient) in contravention of s 280(1).
By way of documents filed on 7 March 2025, the applicant provided a letter from his de facto partner and sponsor in which she pointedly expressed her concern with the Minister’s position in the following terms:
The Minister standing firm on this matter is overlooking I feel the fact that we had no knowledge of anything that was being requested of us, for if we had known we would have immediately acted for what was needed. The Minister and department could have contacted us directly if there was no reply from Mandy Grewal as both Amit and I had given our contact details while filing the application, for such an important matter relating to our visa application.
Consideration
At the outset, I do not accept the Minister’s characterisation of Form 47SP and the suggestion that a ‘combined application’ was made by way of the completion and lodgment of that form. The Subclass 820 visa confers temporary residence whilst the Subclass 801 visa confers permanent residence. The statutory scheme generally provides a two-stage process for the consideration of Subclass 820 and Subclass 801 visa applications. Both visa applications are made simultaneously but they are not ‘combined’ in any legal sense. The only common factor in the making of these two visa applications is the lodgment of Form 47SP: see Items 1214C(1) and 1124B(1)(b) of Schedule 1 to the Regulations. Generally, the Subclass 820 visa confers temporary residence upon a visa holder until such time as a decision on the Subclass 801 visa application is made. Unless certain criteria have been met, the delegate may not finalise their determination of the Subclass 801 visa application until the applicant has held their Subclass 820 visa for a period of two years. Given the order in which these visa applications are determined, and the type of residence conferred by visa grant, I understand that the Subclass 801 visa is the ‘second stage permanent visa’ referred to on page 4 of Form 47SP.[37]
[37] CB 4.
That said, I am also unpersuaded by the Minister’s submissions that the applicant was notified of the decision in the prescribed way as required by s 66(1) of the Act. Before embarking upon my consideration of those submissions, it behoves me to state that it is trite and somewhat unhelpful in proceedings such as these for the Minister to submit following the hearing that this issue was not raised by the applicant in his application to this Court. This is particularly in circumstances where the Minister is expected to behave as a model litigant and Counsel for the Minister acknowledged at hearing that the issue was indeed important. It does not escape this Court that the applicant is self-represented but has made a concerted effort to put forward submissions which essentially strike at the heart of the rigid notification regime prescribed by the legislation, particularly where those submissions have consistently pointed to the unfairness in the Department having sent the delegate’s decision to Ms Grewal’s email address when she was no longer a registered migration agent. The issue is critical and, in my view, the approach taken by the Court is warranted by the confluence of these factors and informed by the commentary on the Court’s obligations towards unrepresented litigants as outlined in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [58]-[77], [100] and [112]-[113].
For the purposes of determining whether the applicant was notified of:
(a)the decision to refuse to grant him a Subclass 801 visa in the prescribed way on 1 October 2019, I am of the view that regard must be had to the applicant’s responses in Form 47SP in which he clearly specifies himself as the recipient for that purpose (see s 494B(1) of the Act) and that the Minister was required to give that decision to him by way of sending it to his personal email address or postal address which he had specified in the ‘Contact details for second stage permanent visa’ part of Form 47SP.
(b)the decision to refuse to grant him a Subclass 820 visa in the prescribed way on 1 October 2019, I am of the view that regard must be had to the applicant’s responses to the questions under the subheading ‘Authorised recipient’ in Form 47SP to determine whether that continues to constitute a written notice given to the Minister for the purposes of s 494D of the Act in circumstances where Ms Grewal was no longer a migration agent.
In my view, a fair and proper reading of the applicant’s responses in Form 47SP required the Minister to notify the applicant of:
(a)the decision to refuse to grant him a Subclass 801 visa by sending it to the applicant’s personal email address or postal address which he specified in the ‘Contact details for second stage permanent visa’ part of Form 47SP.
(b)the decision to refuse to grant him a Subclass 820 visa application by sending it to the email address of the applicant’s authorised recipient, if so authorised. In my view, Ms Grewal was not the applicant’s authorised recipient on 1 October 2019 when the delegate’s decision was transmitted to her by email on 1 October 2019 as the applicant’s authorisation had been withdrawn once her registration as a migration agent lapsed on 21 March 2019.
That position is explained below.
Was the decision to refuse to grant the Subclass 801 visa sent to the applicant in the prescribed way?
At the outset, I reject the oral and written submissions made on behalf of the Minister that the applicant’s provision of his migration agent’s email address in the ‘Authorised recipient’ section of Form 47SP must be read such that it permitted the Department to communicate with him electronically by sending the decision to that email address in relation to all aspects of both visa applications.
The Minister’s submissions ignore the context in which the Department sought, and the applicant gave, specific information as to where correspondence should be sent in relation to the Subclass 801 visa application. While Form 47SP is titled ‘Application for migration to Australia by a partner’, the statutory scheme provides for two separate visa applications and the form simply allows for the provision of information to make each of those applications. Relevantly, the applicant is directed to detail where all correspondence should be sent in relation to the second stage permanent visa, being the Subclass 801 visa. The applicant made it abundantly clear that communications in relation to the Subclass 801 visa be sent to his personal email address. It was open to him to provide the details of Ms Grewal at that juncture but he did not.
Following that series of responses is a separate written notice from the applicant in which he authorises another person to receive ‘[a]ll correspondence, including notification of the outcome of the application’ (emphasis added). It is not clear what is meant by ‘the application’ in this part of the form. Taking into account that:
(a)the written notice specifies all correspondence, including notification of the outcome, be sent to the authorised recipient in relation to the application; and
(b)the statutory context clearly provides that the applicant was making two visa applications by way of completing and lodging Form 47SP with the Minister’s Department; and
(c)the applicant had already indicated within Form 47SP that all correspondence in relation to his Subclass 801 visa application be sent to his personal email address,
I interpret the form such that only correspondence in relation to the Subclass 820 visa application was to be sent to the applicant’s authorised recipient.
The Minister raises a concern about the Court querying the applicant’s intentions when he completed Form 47SP. No such inquiry is being made as it need not be made. The applicant’s responses to the various questions within Form 47SP speak for themselves whereby the applicant has made it abundantly clear where all correspondence should be sent in relation to each visa application made by him.
Further, the statutory scheme, as described above, lends support to my construction of these parts of Form 47SP. The potential lag between the grant of a Subclass 820 visa and consideration whether an applicant qualifies for the Subclass 801 visa, a period of time which generally exceeds two years,[38] provides a rationale for the design of Form 47SP to allow for different persons to receive correspondence in relation to each visa application under consideration. During that period, circumstances may change, thereby applicants are afforded an opportunity to specify different addresses for the sending of correspondence in relation to each visa application.
[38] See cll 801.221(2)(d), (2A)(c) in Part 820 of Schedule 2 to the Regulations.
While perhaps not necessary to take this examination further, I also note that the objective facts of this case do not support the construction proffered by the Minister. The fee agreement between the applicant and his agent, set out in Exhibit 1A, provides that Ms Grewal had only been engaged in her capacity as a registered migration agent to assist the applicant in relation to his Subclass 820 visa application. No mention is made of service provision in connection with the Subclass 801 visa application. I accept that evidence as relevant for the purposes of construing the operation of this particular part of Form 47SP insofar as it exemplifies a circumstance whereby an applicant may choose, as the applicant did in this case, to have communications sent in relation to their Subclass 820 visa application to their registered migration agent’s email address but all correspondence relating to their Subclass 801 visa application to another address such as their personal email address.
Therefore, the applicant was not properly notified of the decision to refuse to grant him a Subclass 801 visa as it was not sent to his personal email address which was the last email address he provided to the Minister for the purposes of receiving documents in relation to the Subclass 801 visa application. It follows that the applicant was not properly notified of the decision to refuse to grant him a Subclass 801 visa as required by s 66(1) of the Act.
Was the decision to refuse to grant the Subclass 820 visa sent to the applicant in the prescribed way?
It is clear from the applicant’s responses in Form 47SP that, for the purpose of receiving documents in relation to his Subclass 820 visa application, the applicant authorised his migration agent, Ms Grewal, to receive those documents. At the time when the applicant gave the Minister that written notice pursuant to s 494D(1) of the Act, Part 3 of the Act provided a scheme for the regulation of the Australian immigration advice industry. Key features of that scheme included:
(a)the administration of the registration of migration agents by the MARA, which was the Minister given the absence of any effective appointment of the Migration Institute of Australia Limited to discharge the functions of the MARA: ss 275 and 315 of the Act;
(b)the duty of the MARA to maintain a Register of Migration Agents which lists individuals who are registered as migration agents: Div 3, Pt 3 of the Act;
(c)the power for the MARA to publish a list of names of former registered migration agents, their former MARNs and the date they ceased to be registered: s 287(3A) of the Act; and
(d)a Code of Conduct for registered migration agents (Code of Conduct), prescribed by s 314 of the Act and detailed within Schedule 2 to the Migration Agents Regulations 1998 (Cth) (Migration Agents Regulations), which obliged registered migration agents, among other things, to keep their clients fully informed, in writing, of the progress of their applications and tell their clients, in writing, the outcomes of those applications within a reasonable time after those applications have been decided: cll 2.8(c) and (d), Sch 2 to the Migration Agents Regulations.
The scheme by which the Minister regulates migration agents, and has specified their obligations, is enabled by the same legislation that deals with notification of authorised recipients who may be registered migration agents. Notably, authorised recipients are not subject to any professional obligations, including Code of Conduct obligations, and the Act does not impose any specific obligation upon an authorised recipient to promptly relay to visa applicants any documents given to them by the Minister. Put simply, the role of an authorised recipient is only to receive documents on behalf of the visa applicant who appointed them. In the absence of any obligation to relay such documents to a visa applicant, the legislation provides the following safeguards against the risk of an authorised recipient failing to relay to visa applicants any documents received from the Minister:
(a)the Minister is not prevented from giving a visa applicant a copy of a document that has been given to an authorised recipient: s 494D(2);
(b)the visa applicant may, at any time, withdraw the written notice upon which they conferred their authorised recipient with the authority to receive documents: s 494D(3); and
(c)the Minister may communicate directly with an applicant instead of the authorised recipient if the authorised recipient is not a registered migration agent and the Minister reasonably suspects that the authorised recipient is giving immigration assistance: s 494D(5).
Importantly, s 494D(1) of the Act speaks of the authorised recipient being a person, not an address. To that end, the written notice given by the applicant in this case to the Minister, by way of Form 47SP, clearly specified that the person he authorised to be his recipient was a migration agent. Critically, Form 47SP specifically allowed for the applicant to authorise a migration agent to be his authorised recipient. It is apposite to set out here the language of Form 47SP in relation to the authorisation:
Does the applicant authorise another person to receive written correspondence on their behalf?
This authorises the department to send the authorised person all written correspondence that would otherwise be sent to the applicant.
Yes, a migration agent
This person is referred to as the authorised recipient.
Having availed himself of the option to notify the Department that he would like to authorise a migration agent to be the person to receive written correspondence on his behalf, it was then clearly conveyed to the applicant that this person was to be referred to as the authorised recipient. On that basis, the applicant proceeded to identify a particular registered migration agent, Ms Grewal, by way of specifying her MARN, family name, given name and business organisation name. For the purposes of facilitating communication with Ms Grewal, the applicant specified Ms Grewal’s postal address, contact telephone numbers and email address. It was also made clear in Form 47SP that all correspondence, including notification of the outcome of the application, would be sent to Ms Grewal’s email address. In my view, that series of sequential responses provided by the applicant in Form 47SP constituted a written notice to the Minister to give documents to him by sending them to his registered migration agent’s address on the understanding that she continued to maintain her status as a migration agent. Put simply, Ms Grewal’s status as a registered migration agent was the precondition upon which her appointment as an authorised recipient relied.
It is my view that the written notice provided in Form 47SP by the applicant must be construed in such a manner. It is implicit that in his authorisation of a registered migration agent to act as his recipient, the applicant did so on the basis that she would be authorised to receive communications as well as comply with her obligations as a registered migration agent which included to tell a client of the outcome of their application within a reasonable time which, if unfavourable, would allow that client sufficient time to prepare and lodge a review application should they be eligible and wish to do so. In circumstances where a registered migration agent ceases to hold such status, and becomes an inactive migration agent pursuant to s 306B(a) of the Act, that person is no longer subject to Code of Conduct obligations to fully inform any of their clients, in writing, of the progress of their applications and tell their clients, in writing, the outcomes of those applications within a reasonable time after those applications have been decided: see s 314(2) of the Act. It is the avoidance of that risk to applicants, and the concomitant administrative certainty that flows from a system designed to ensure an applicant receives communications from their duly authorised recipient, which supports my construction of the written notice provided by the applicant in Form 47SP.

Importantly in this case, there is no evidence before the Court indicating MARA having taken any action to obtain the applicant’s documents from Ms Grewal and give them to him, a power it may have exercised pursuant to Div 3A of the Act as soon as Ms Grewal became an inactive migration agent on 21 March 2019 so as to ensure the applicant was not ‘unduly disadvantaged by the agent becoming inactive’: see s 306A of the Act. Had such action been promptly taken, the applicant could have received, and responded to, the delegate’s letters dated 25 July 2019 and 2 September 2019 and have promptly received the notification and delegate’s decision. In the absence of such action by the MARA, I therefore do not accept that s 494D would operate in a manner that permits the Minister to continue to send documents to an inactive migration agent who is under no obligation to relay such documents to the applicant. In circumstances such as this, I construe the written notice provided by the applicant in Form 47SP such that it acts as an authorisation of Ms Grewal’s appointment for the purposes of s 494D(1) and simultaneously a withdrawal of that appointment for the purposes of s 494D(3) if she no longer held the status of migration agent. Accordingly, I construe the information provided by the applicant under the heading ‘Authorised recipient’ across pages 3 and 4 of Form 47SP to be:
(a)a written notice authorising the Department to give correspondence in relation to the Subclass 820 visa application to Ms Grewal for the purposes of section 494D(1) of the Act; and
(b)a withdrawal of that notice in circumstances where Ms Grewal did not hold the status of registered migration as specified in the notice.
I acknowledge the various arguments raised by the Minster in his post-hearing submissions filed on 28 February 2025 regarding the proper construction of s 494D but find them unpersuasive in the determination of this secondary issue.
The Minister submits that s 494D(1) does not itself require, or require that the Minister determine, after the fact of the provision of the written notice whether the authorisation of the authorised recipient has lapsed or ceased. I do not accept that construction of s 494D for three reasons. First, the language of s 494D does not speak of how the Minister is to determine or otherwise give effect to the withdrawal of the written notice under s 494D(1). It merely provides that the applicant may withdraw that notice. Secondly, s 494D does not forbid an applicant from specifying withdrawal of a written notice given under s 494D(1) upon a specific event occurring, such as when an authorised recipient no longer has the status of registered migration agent they held when originally authorised. The provision does not restrict the terms or basis upon which a written notice given to the Minister under s 494D(1) may be withdrawn. Thirdly, s 494D(3) contemplates that withdrawal of that notice may occur ‘at any time’ and does not exclude the possibility of that withdrawal being specified within, or as part of, the written notice given pursuant to s 494D(1).
The Minister further submits that there are three ‘good reasons’ not to interpret s 494D(1) as if it had implicitly some form of limitation. In light of the foregoing analysis, that submission is misconceived. Nevertheless, to the extent that is necessary, I address each of those reasons:
(a)First, it is contended that an implicit limitation upon the Minister’s obligation to give documents to an authorised recipient who was authorised at the time of the giving of the written notice would introduce uncertainty, contrary to the objectives of provisions such as ss 494A, 494B, 494C and 494D. In support of that proposition, reliance is placed upon the following comments of Dowsett, Stone and Bennett JJ at [24] in Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23 that were also cited in Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228 at [40]:
With respect, the tenor of Gleeson CJ’s comments is applicable here. Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie leading it to conclude that s 494C(4) did not create a rebuttable presumption ...
(Emphasis in original)
Respectfully, these comments serve to illuminate that certainty flows from a rigid notification regime that does not require the Minister to prove actual notification (ss 494B and 494C) in circumstances where an authorised recipient has been properly identified (s 494D). However, these authorities offer no guidance in relation to determining what constitutes the ‘proper identification’ of an authorised recipient for s 494D purposes. In my view, the present case is concerned with that inquiry which is fulsomely addressed above, including in terms of the administrative certainty that is to be achieved where the proper identification of the authorised recipient involves a close reading of the written notice given by the applicant alongside a consideration of the obligations of a migration agent when so conferred with authority to act as an authorised recipient.
(b)Secondly, it is contended that s 494D itself contemplates and provides for circumstances in which the authorisation for the giving of documents to an authorised recipient is varied or withdrawn. According to the Minister, such contemplation and provision is found in s 494D(3). In my view, my construction of the applicant’s responses in Form 47SP sits neatly within the terms of s 494D. As stated above, s 494D does not forbid an applicant from specifying withdrawal of a written notice given under s 494D(1) upon a specific event occurring, such as when an authorised recipient no longer has the status of registered migration agent they held when originally authorised. In terms of what may constitute a withdrawal for s 494D(3) purposes, that provision contemplates withdrawal may occur ‘at any time’ and neither restricts the terms or basis upon which a written notice given under s 494D(1) may be withdrawn nor excludes the possibility of that withdrawal being specified within, or as part of, the written notice given pursuant to s 494D(1).
(c)Thirdly, the Minister observes that there was no requirement in s 494D(1), and it was not a condition of s 494D(1), that the authorised recipient be a registered migration agent. The Court’s attention was drawn to s 494D(5) and it is submitted that this provides a basis upon which the Minister need not comply with s 494D(1) if the authorised recipient is not a registered migration agent (within the meaning of Part 3 of the Act), the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of Part 3), and the Minister has given the applicant a notice stating that he or she does not intend to give the authorised recipient documents as mentioned in s 494D(1). It is then submitted that s 494B(5) was not invoked in the present case ‘because there is no basis for the Court to find that the Minister reasonably suspected Ms Grewal was giving immigration assistance at a time when she was not a registered migration agent’. In support of that contention, it is argued that ‘the Minister cannot have suspected Ms Grewal was giving immigration assistance (merely by being, or performing the services of an authorised recipient)’ as immigration assistance does not involve ‘pass[ing] on to another person information produced by a third person, without giving substantial comment on or explanation of the information’: see s 276(3) of the Act. In my view, these submissions are either misdirected or misconceived insofar as they demonstrate an ignorance of salient facts in this case, the terms of the applicant’s written notice and withdrawal provided in Form 47SP and the broader legislative regime within which s 494D operates. To the extent that is necessary, I address these submissions as follows:
(i)While I accept that s 494D(1) does not limit the role of authorised recipient to registered migration agents, the fact is that the applicant in the present case specified a registered migration agent, Ms Grewal, to be his authorised recipient. Form 47SP specifically allowed him to do this. Based upon my construction of Form 47SP, that authorisation was subject to Ms Grewal holding her status as registered migration agent and thereby withdrawn pursuant to s 494D(3) on her having allowed that status to lapse on 21 March 2019. On that basis, following 21 March 2019, there is no need to consider let alone make findings in relation to the basis upon which the Minister chose not to exercise the discretion provided for in s 494D(5) of the Act.
(ii)I reject any suggestion that s 494D is to be construed so as to permit the Minister to continue communicating with an authorised recipient who is no longer a registered migration but is not suspected of providing immigration assistance. That construction improperly restricts the nature of the withdrawal contemplated by s 494D(3). In this case, the written notice given to the Minister was withdrawn with effect on 21 March 2019 when Ms Grewal became an inactive migration agent because, from that point, she was under no professional obligation to forward to the applicant documents sent to her by the Minister in relation to his Subclass 820 visa application. Understandably, it is the applicant’s prerogative to withdraw their authorisation in such circumstances, particularly in the absence of any willingness to await or rely upon the prospect of either the MARA intervening to assist them pursuant to Div 3A of the Act or the Minister exercising the discretion provided for in s 494B(5).
(iii)It is appropriate to make some remarks about the intended operation of s 494D(5) in order to give further context to my construction of the applicant’s responses in Form 47SP. According to the Explanatory Memorandum to the Migration Legislation Amendment Bill (No. 1) 2008, the effect of the amendment to add new subsection (5) at the end of section 494D of the Act was to:[39]
allow the Minister to refuse to communicate with an authorised recipient in relation to whom there are concerns, for example, about their character, conduct or professionalism…[or] who has previously been registered as a migration agent but whose registration has been cancelled by the Migration Agents Registration Authority (the MARA) for disciplinary reasons, or has been refused registration because they are not a fit and proper person to provide immigration assistance or are not a person of integrity.
In my view, this extrinsic material lends support to my construction of the applicant’s written notice and withdrawal as provided in Form 47SP. Notably, the operation of s 494D(5) provides for circumstances in which the Minister may not comply with the written notice that are, in my view, akin to the basis for the withdrawal I have construed in the applicant’s case by way of his completion of Form 47SP. Those circumstances generally involve situations where there may be a risk of an authorised recipient not conveying communications received from the Department to an applicant. While s 494D(5) aims to avoid adverse consequences that might arise out of mischief on the part of an authorised recipient who is not a registered migration but suspected of giving immigration assistance, it is apposite to note that Ms Grewal’s failure to maintain her status as registered migration agent during the carriage of the applicant’s case, which formed the basis of the applicant’s withdrawal of her authorisation as his recipient of documents, bespeaks of the type of misconduct, unprofessionalism and impropriety that is of concern to Parliament and would thereby warrant recognition of the applicant’s withdrawal in this case.
[39] Explanatory Memorandum, Migration Legislation Amendment Bill (No. 1) 2008, Sch 4, Item 4, para [26] and [27].
Therefore, the applicant was not properly notified of the decision to refuse to grant him a Subclass 820 visa as that document was not given to him but was improperly given to a person who was no longer his authorised recipient. It follows that the applicant was not properly notified of the decision to refuse to grant him a Subclass 820 visa as required by s 66(1) of the Act.
CONCLUSION
The notification in this case did not meet the requirements of s 66(2)(d)(ii) of the Act and the applicant was not notified of the delegate’s decision in the prescribed way as provided for in s 66(1) of the Act.
The Minister submits, and I agree, that to the extent any non-compliance with s 66 of the Act in respect of:
(a)the notification might amount to jurisdictional error by the Tribunal in finding that it lacked jurisdiction, the 25 October 2019 email sent to the applicant would contain the same error and would be defective for the same reasons. The 25 October 2019 email does not cure the deficiency in the content of the notification which still fails to meet the requirements of s 66(2)(d)(ii) of the Act.
(b)the failure to notify the applicant of the decision in the prescribed way might amount to jurisdictional error by the Tribunal in finding that it lacked jurisdiction, the 25 October 2019 email sent directly to the applicant’s email address cures, as at that date, any previous error in relation to compliance with s 66(1) of the Act: see s 494C(7) of the Act.
I note that an application for review was nevertheless given to the Tribunal on 29 October 2019. It is a matter for the Administrative Review Tribunal to determine whether that application for review was properly made. To that end, I observe that application was made in the approved form: see s 347(1)(a) of the Act. Given the defective nature of the notification, I further observe that time did not begin to run against the applicant in this case yet an application for review was given to the Tribunal on 29 October 2019: see s 347(1)(b) of the Act; Parata at [72]. I also observe there is no submission or evidence before the Court indicating the applicant having not paid the prescribed fee when making that application for review: see s 347(1)(c) of the Act.
Accordingly, it is appropriate that I make the usual order regarding mandamus requiring the Administrative Review Tribunal to reconsider and determine the matter according to law. This is in circumstances where the Administrative Review Tribunal, upon remittal, would first be required to determine whether it has before it a valid application and, in my view, that would depend upon whether the applicant attends to payment of the prescribed fee if required.
Finally, as a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to ‘Administrative Review Tribunal’.
I will hear the parties in relation to costs.

I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.
Associate:
Dated: 27 March 2025

File number(s):	SYG 1171 of 2020
Judgment of:	JUDGE PAPADOPOULOS
Date of judgment:	27 March 2025
Catchwords:	MIGRATION – judicial review – whether the Tribunal correctly found that it lacked jurisdiction in relation to the matter – whether the applicant was validly notified of the delegate’s decision to refuse to grant a Subclass 820 visa and a Subclass 801 visa – negligence of migration agent – defective notification – withdrawal of authorised recipient status once migration agent became inactive – application succeeds.
Legislation:	Migration Act 1958 (Cth) ss 66, 275, 287(3A), 306A, 306B(a), 314, 315, 347(1), 476(2)(a), 494B, 494C and 494D Migration Agents Regulations 1998 (Cth) cll 2.8(c) and (d) of Sch 2 Migration Regulations 1994 (Cth) subregs 2.16 and 4.10(1)(a), Items 1214C(1) and 1124B(1)(b) of Sch 1
Cases cited:	Abbas & Anor v Minister for Home Affairs & Anor [2020] FCCA 1051 Ali v Minister for Home Affairs [2019] FCA 1102 Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; [2018] FCAFC 228 Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308 Chrysafiti v Minister for Home Affairs [2019] FCA 445 DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 Fahme v Minister for Immigration and Border Protection [2017] FCA 614 Kaur v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 54 Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 Minister for Immigration and Citizenship v SZLIX (2008) 245 ALR 501 Minister for Immigration, Citizenship and Multicultural Affairs v Park [2024] FCAFC 136 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1401; 237 ALR 64; 96 ALD 510; HCA 35 SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23
Division:	Division 2 General Federal Law
Number of paragraphs:	99
Date of last submission/s:	7 March 2025
Date of hearing:	18 December 2024
Place:	Sydney
Applicant	In Person
Counsel for the Respondents:	Mr G Johnson
Solicitor for the Respondents:	HWL Ebsworth Lawyers

SYG 1171 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	AMIT SHARMA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE REVIEW TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE PAPADOPOULOS
DATE OF ORDER:	27 MARCH 2025