Wu and Ors and Minister for Immigration and Citizenship
[2008] AATA 679
•5 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 679
ADMINISTRATIVE APPEALS TRIBUNAL )
)No 2007/4559; 4561, 4563,
GENERAL ADMINISTRATIVE DIVISION ) 4565, 4567, 4568 Re GUIBIAO WU; FENYU HU; MINGDE WU; YANLING WU; JIALING WU; MINGCHENG WU Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
INTERIM DECISION
Tribunal Ms N Isenberg, Senior Member Date5 August 2008
PlaceSydney
Decision The Tribunal is satisfied that subsection 135(1) of the Migration Act 1958 has been complied with. A further hearing will be scheduled to address the substantive issue of the cancellation of the Applicants’ Business Skills visas under section 134 of the Migration Act 1958. ....................[sgd]..........................
Ms N Isenberg
Senior Member
CATCHWORDS
MIGRATION – business visa – notice of intention to consider cancellation – authorised recipient – applicant’s authorised recipient notified of an intention to cancel applicants’ visas – primary applicant received notice of intention to consider cancellation and responded to it – respondent complied with subsection 135(1)
Migration Act 1958 – Sections 134, 135, 494A, 494B, 494C, 494D
Migration Regulations 1994 – Regulation 2.55
VEAN v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570
Lo v Minister for Immigration and Citizenship (2007) 159 FCR 160
Le v Minister for Immigration and Citizenship (2007) 157 FCR 321
Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181
Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84
REASONS FOR INTERIM DECISION
5 August 2008 Ms N Isenberg, Senior Member DECISIONS UNDER REVIEW
1. The decisions under review before the Administrative Appeals Tribunal (“the Tribunal") are the decisions of the Respondent (“the Minister”) dated 14 August 2007 to cancel the Business Skills visa of the Primary Applicant, Mr Guibiao Wu (“Mr Wu”), and the consequential cancellation of the secondary Business Skills visas held by the members of Mr Wu’s family unit (being Fenyu Hu, Mingde Wu, Yanling Wu, Jialing Wu and Mingcheng Wu).
BACKGROUND
2. On 9 June 2003 Mr Wu submitted a Form 956 to the Department of Immigration and Multicultural and Indigenous Affairs (today, the Department of Immigration and Citizenship (“the Department”)), nominating Mr John W Zhuang of level 10, 28 Margaret Street, Sydney, NSW 2000, as his authorised recipient for “any correspondence concerning my Business Skills visa”. Mr Zhuang completed the section agreeing to the Department communicating with him by email and provided his email address as [email protected] (“the email address”).
3. On 9 March 2004 Mr Wu was granted a Business Skills - Business Talent (Migrant)(Class EA) visa. Notice to that effect was sent to him at: c/- Johninfo & Associates, PO Box H10, Australia Square, Sydney, NSW 1215, Australia (“the office address”). On that notice, the Department notified him that the other Applicants in these proceedings, namely members of Mr Wu’s family unit, have also been granted visas (Business Talent (Migrant)(Subclass 132) visas).
4. By letter dated 24 May 2005 Mr Zhuang wrote to the Department, on the letterhead of Johninfo and Associates, attaching Forms 956 and 922. In the Form 956 dated 5 May 2005, Mr John Zhuang of Johninfo & Associates, PO Box H10, Australia Square, NSW 1215, was appointed as Mr Wu’s migration agent. He agreed to the Department contacting him by email at the email address. In the Form 922, dated 6 May 2005, Mr Wu notified his new address in Australia as 81-13 Chandler Street, Belconnen, ACT 2617, with the date of effect from 12 August 2004.
5. On 16 March 2007 the Department wrote to Mr Wu, for reasons which are unclear from the papers, at 211/395 Aspinal Street, Watson ACT 2602, seeking the return of his Survey of Business Skills Migrant - 24 Months (Form 1010).
6. Following a telephone conversation with an officer at the Department on 4 May 2007, Alex Kaufman of Johninfo & Associates, using the email address, emailed the Department thanking the officer for the “early warning” in relation to the Notice of Intention to Consider Cancellation (“the NOIC”) to be issued on 7 May 2007, noting that he believed that “we” had been nominated as agents on 24 May 2005.
7. On 7 May 2007, at 9.34am, an email was sent to the email address by the Department. It commenced “Dear Mr Kaufman”. It advised that no record of forms 956 or 922 could be located. It noted that Mr Wu's 24 month survey had been sent to “an address which was obtained from departmental sources”, namely 211/395 Aspinal Street, Watson ACT 2602, and that no response had been received by the Department.
8. On the same day, at 3.03pm, the Department again sent an email to the email address. The email correspondence was addressed “Dear Mr Kaufman” and attached the NOICs in respect of Mr Wu and his family. The NOICs to Mr Wu and his family members were addressed to Johninfo & Associates at the office address, and it recorded that it was to be sent by email to the email address. It noted that hardcopies of the NOICs were sent to Mr Kaufman by mail on the same day.
9. At 4.21pm that day Alex [Kaufman] replied using the email address, acknowledging receipt of the NOICs, which had been forwarded “as per our discussion this morning”. He wrote, inter alia, “…we welcome this opportunity to demonstrate our client’s business contributions to date.”
10. The following day an email was sent by the Department to Alex [Kaufman] of Johninfo & Associates at the email address thanking him for his email regarding his client’s Forms 956 and 922 and requesting completion of the Form 1010.
11. On 31 May 2007 Mr Wu submitted a Form 1010, Survey of Business Skills Visa Holders, appointing Ms Regina Cheung of Johninfo & Associates of the postal address as his Migration Agent. In the same form Ms Cheung consented to communication by email at the email address. On the same day Mr Wu submitted a Form 956 appointing Regina Cheung of “Johninof” (sic) & Associates as his authorised recipient. Ms Cheung consented to the appointment and to communication via email at the email address. Mr Wu provided contact details of his other migration agents as John Zhuang, John Wu-yi Zhuang and Alexander Kaufman, all of Johninfo & Associates.
12. On the same day Ms Cheung wrote to the Department, providing representations in response to the NOICs. The letter notes that should the Department require further information it should contact “this office”.
13. On 8 June 2007 (the letter is erroneously dated 8 May 2007) Ms Regina Cheung wrote to the Department providing further information in response to the NOICs, including a statement from Mr Wu dated 6 June 2007.
14. On 14 August 2007 a delegate of the Minister for Immigration and Citizenship cancelled Mr Wu's Business Skills visa and sent the notice to Ms Regina Cheung at Johninfo & Associates at the office address.
ISSUE BEFORE THE TRIBUNAL
15. The issue before the Tribunal was limited to the consideration of whether Mr Wu was correctly notified of an intention to cancel his Business Skills visa as required by s 135(1) of the Migration Act 1958 (“the Act”).
LEGISLATION
16. The relevant legislation is set out at Annexure A.
SUBMISSIONS ON BEHALF OF MR WU
17. It was submitted on Mr Wu’s behalf that from the time he formally provided the Respondent with notice of the name and address of Mr Zhuang as his authorised recipient, the Minister was required to send all communications in relation to Mr Wu to Mr John Zhuang: s 494D(a) of the Act.
18. In order to comply with s 494D the NOIC applying to Mr Wu was required to have been:
· written to Mr John Zhuang;
·addressed to Mr Zhuang’s mailing address, being P.O. Box H10, Australia Square, NSW 1215;
·mailed to Mr Zhuang at this postal address or faxed to him on 61 2 9223 5377, or sent by email to [email protected];
·if sent by email, addressed to Mr John Zhuang.
19. It was submitted that the NOIC did not comply with the strict legislative requirements of s 494A, in that:
·The NOIC was addressed to a business name, being Johninfo & Associates, rather than Mr John Zhuang;
·The NOIC was then sent by email to Mr Alex Kaufman and not to Mr John Zhuang.
20. As a consequence, it was submitted, the NOIC is a nullity and is taken by law never to have been sent to Mr Wu.
RESPONDENT’S SUBMISSIONS
21. The Respondent contended that Mr Wu was given the NOIC in accordance with s 135 of the Act: The NOIC was sent to Mr Wu by email through his authorised recipient at [email protected].
22. The NOIC requested that Mr Wu send any submissions he had to the Department within 28 days and Mr Wu's representatives responded to the NOIC by letter dated 31 May 2007 and again by letter dated 8 June 2007 (erroneously dated 8 May 2007), both sent by Ms Regina Cheung of Johninfo & Associates. Mr Wu provided a signed statement with the response sent on 8 June 2007.
23. The Minister contends that despite the NOIC not having been sent to Mr Zhuang, the evidence clearly indicates that Mr Kaufman of Johninfo & Associates was actually given the NOIC, in accordance with s 135(1) and s 134(9). Further, the evidence indicates that Mr Wu, having signed a statement in response to the NOIC, was also actually given the NOIC, in accordance with s 135(1) and s 134(9).
24. The contact details for all recipients at Johninfo & Associates are the same, namely [email protected]. As the email recipients at Johninfo & Associates were in regular correspondence with both Mr Wu and the Department, those representing Mr Wu and Mr Wu himself were actually in receipt of the NOIC and actively engaging in responding to that NOIC.
25. It was also submitted that the NOIC was given to Mr Wu in accordance with the requirement in s 134(9) of the Act regardless of a notification under s 494D. Subsection 134(9) does not require the notice to be given to an authorised recipient; in that regard, the subsection refers only to “notice … given to its holder [of the visa]”. Section 135 neither requires that the notice be given to an authorised recipient, nor requires that the notice be given by any one of the methods specified in s 494B of the Act. The Minister may use any of the methods specified in s 494B or any other method that he or she considers appropriate.
26. The Minister further contended that there is then an issue as to whether the enactment of s 494D in 2001 has the effect of so qualifying s 134(9) such that a notice given to a visa holder within time is no longer sufficient to crystallise the operation of the cancellation power.
27. It was the Minister's contention that although s 494D requires the Minister to provide correspondence to an authorised recipient, it does not follow that if this does not occur, in circumstances where nevertheless the principal received the relevant notice, any such notice is ineffective until the authorised recipient is also given the notice.
28. The Minister contended that nothing in s 494D has the effect that the actual giving of a document to a principal is deemed not to have occurred if the authorised recipient is not provided with a copy: VEAN v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 ("VEAN"). In VEAN, the sending of a letter to the applicant care of the authorised recipient was held not to have been done in the manner prescribed by ss 494B(1), (4) and s 494D(1), so as to have the effect prescribed by ss 494C(4) and 494D(2). That did not, however, mean that the sending of the letter was invalid; rather that the applicant was not “notified” of the relevant decision until he actually received the notification letter.
29. In Lo v Minister for Immigration and Citizenship (2007) 159 FCR 160 ("Lo"), Ms Lo had her Business Skills visa cancelled. The NOIC was sent to Ms Lo and not to her authorised recipient. The Court held that the relevant authorisation had not been operative at the time of sending the NOIC and dismissed her application. However, the Court also considered whether Ms Lo would have been validly notified given that she had actually received the NOIC within the time limit. The Court considered the Minister's submissions in relation to the notification issue, as stated above, and did not express disagreement with them, though ultimately the Court held that in this case there had been no authorised recipient at the time the NOIC was sent.
30. The Respondent noted that the Full Federal Court in Le v Minister for Immigration and Citizenship (2007) 157 FCR 321 (“Le”), in relation to the issue of actual notification, stated that:
If the letter did in fact come to the attention of the appellant, a question may arise as to whether there was jurisdictional error. However, in the absence of a finding that the letter actually came to the attention of the appellant, there is no basis for concluding that it was given to the appellant so as to satisfy s 57. There was, therefore, a failure to comply with s 57 of the Act. That failure constituted jurisdictional error. That is to say, the appellant did not have the opportunity of endeavouring to satisfy the Minister that circumstances existed whereby she may be entitled to the visa applied for, even though she was no longer living with her husband.
Mr Wu received actual notice and the Minister submitted that there was no failure on the Minister’s part to give Mr Wu a notice within the time prescribed by ss 134(9) and 135 of the Act.
31. The Minister contended, consistent with the decision in Le, that in this instance there is no jurisdictional error as Mr Wu was actually notified and had the ability, and did in fact avail himself of the opportunity that the NOIC gave him, to make submissions and produce further evidence. The intention of s 135 is that a visa holder have an opportunity to comment on the proposed cancellation. The fact that Mr Wu did receive the NOIC and responded to it means that the statutory intention was in fact achieved.
32. The Respondent noted that, in other contexts, the actual notification of applicants (where they may have authorised a recipient) has been considered. In Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181, the Full Federal Court made an obiter comment, doubting that, in the context of the case before them, proof of actual notification would have overcome a failure to comply with the requirement to send correspondence to an authorised recipient where one had been nominated. However, the Court did not have to decide the case before them on that point. In a further obiter comment, the Court referred to Lo and indicated that they would decline to follow it to the extent that it was decided on a broader basis, but did not provide any further comments on the case and nor did they decide contrary to the findings therein.
33. The Minister contended that the authorities provide a strong basis for considering that in this case Mr Wu was given the NOIC and, therefore, the requirements of the Act have been complied with.
CONSIDERATION OF THE EVIDENCE
34. The issue of whether the NOIC is a nullity is critical to Mr Wu’s ongoing status in this country. If I find that Mr Wu was not provided with the NOIC in accordance with the requirements of ss 134(9) and 135 of the Act, that is within 3 years of him first entering Australia on a Business Skills visa, then the Respondent is precluded from cancelling his Business Skills visa, irrespective of whether Mr Wu has fulfilled his obligations under s 134 of the Act. The last day for the NOIC was 7 May 2007.
35. Regulation 2.55 of the Migration Regulations 1994 sets out the means by which the Minister is to ‘give’ documents to a visa holder in relation to the proposed cancellation of a visa. A notice under ss 134(9) and 135 is one such notice. There was no evidence that Mr Wu had been given the notice by any of the specified methods, nor was there any contention in that regard.
36. Where, like Mr Wu, a person has appointed an authorised recipient, the Minister must give the authorised recipient the document: s 494D(1) of the Act. I can see no basis for the Respondent’s contention that s 134(9) does not require the notice to be given to an authorised recipient, only to “notice … given to its holder [of the visa]”.
37. I also reject the Respondent’s contention, which relied on VEAN. While I agree that nothing in s 494D has the effect that the giving of a document to a principal is deemed not to have occurred if the authorised recipient is not provided with a copy, in this matter there is no evidence that the Applicant was 'notified' of the relevant decision on 7 May 2007, the last possible day. The NOIC did come to his attention at some stage though, because he provided a statement in response on 8 June 2007.
38. In Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84 the Full Federal Court said at 89:
Section 494D(1) clearly contemplates that a document addressed to an applicant for a visa, which would otherwise have been given to that person, must be given to the authorised recipient. That provision tends to indicate that a letter such as the delegate's letter in the present case ought to be addressed to a Visa Applicant rather than to the authorised recipient. The scheme of the legislation is that the authorised recipient is to be given the document that would otherwise have been given to the Visa Applicant. It is inconsistent with that notion that the document should itself be addressed to the authorised recipient rather than the applicant for a visa.
This would clearly indicate that when there is an authorised recipient, when providing notification by one of the methods set out in s 494B, the correct addressee is the visa Applicant, and not the authorised recipient.
39. However, there is nothing in s 494D, in my view, to require the method of notification as being one under s 494B. Subsection 494D(1) has a 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.
I do not consider the note to do more than restate the link between the (s 494B) methods and the deemed time for receipt (s 494C). It does not specify that s 494B methods are the only means of giving a document to an authorised recipient.
40. I was referred to Le, where the effect of s 494D was clearly discussed: the Minister must give the authorised recipient, instead of the Applicant, any document, and the method by which the document is given to the authorised recipient is to be decided by the Minister, that is, in accordance with s 494A.
41. I return then to s 494A, which allows the Minister to give the document to a person by any method considered appropriate. That section too contains a note:
Under section 494D a person may give the Minister the name of an authorised recipient who is to receive documents on the person’s behalf.
The note, in my view, serves to highlight that s 494A is also available as a means of communication to s 494D authorised recipients.
42. From 4 May 2007 Alex Kaufmann, apparently an employee of Johninfo & Associates, was in contact with the Department about Mr Wu’s NOIC, and was aware it was to be issued on 7 May 2007. He noted that “the firm” had been nominated as Mr Wu’s agents. The means of communication was the email address which Mr Wu and the authorised recipient had nominated. On the day the NOIC was issued, 7 May 2007, an officer of the Department and Mr Kaufman corresponded via the email address from early in the business day. Later, the NOIC was emailed to Mr Kaufman and he acknowledged receipt of the NOIC, which had been forwarded “as per our discussion this morning” and welcoming the opportunity “to demonstrate our client’s business contributions to date”. On 31 May 2007 Mr Wu appointed a different authorised recipient, Ms Cheung, who was also from Johninfo & Associates, with the same postal and email address. Mr Wu also provided contact details of other of his migration agents including John Zhuang and Alexander Kaufman of Johninfo & Associates.
43. I am satisfied that the NOIC was given to the authorised recipient under s 494A notwithstanding that it was not addressed to Mr John Zhuang. There was a course of conduct between the Department and Mr Wu’s authorised recipient, through Mr Zhuang’s firm, Johninfo & Associates, that correspondence in respect of Mr Wu would be by email and addressed to Mr Kaufman. Other than having formally signed and forwarded the forms 956 and 922, there appears to have been no input into dealings with the Department on behalf of Mr Wu by Mr Zhuang. It appears that he had delegated that task to Mr Kaufman.
44. This matter is not like those to which I was referred to. Here there was a clear course of dealing establishing a means of communication of the choosing of the authorised recipient, namely emails addressed to his employee, Mr Kaufman. The Minister was entitled to ‘give’ the NOIC to Mr Wu’s authorised recipient by that method under s 494A.
DECISION
45. I note that, being satisfied that s 135(1) has been complied with, a further hearing will need to be held to address the substantive issue of the cancellation of the Applicants’ Business Skills visa under s 134 of the Act.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ...............[sgd].................................................................
AssociateDate of Hearing 10 June 2008
Date of Decision 5 August 2008
Counsel for the Applicants Mr L Karp
Solicitor for the Applicants Mr D Prince, KAH Lawyers
Solicitor for the Respondent Ms A Linacre, Clayton Utz
ANNEXURE A
Relevant Legislation
Migration act 1958:
134 Cancellation of business visas
(1)Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment‑linked visa or a family member’s visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a)has not obtained a substantial ownership interest in an eligible business in Australia; or
(b)is not utilising his or her skills in actively participating at a senior level in the day‑to‑day management of that business; or
(c)does not intend to continue to:
(i)hold a substantial ownership interest in; and
(ii)utilise his or her skills in actively participating at a senior level in the day‑to‑day management of;
an eligible business in Australia.
(9)The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
(a)if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or
(b)if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.
135Representations concerning cancellation of business visa
(1)Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:
(a)stating that the Minister proposes to cancel the visa; and
(b)inviting its holder to make representations to the Minister concerning the proposed cancellation within:
(i)if the notice is given in Australia—28 days after the notice is given; or
(ii)if the notice is given outside Australia—70 days after the notice is given.
(2)The holder may make such representations to the Minister within the time specified in the notice.
(3)The Minister must give due consideration to any representations.
(4)If:
(a)the time specified in the notice ends after the end of the period referred to in subsection 134(9); and
ANNEXURE A
(b)at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;
the Minister is not to proceed with the cancellation.
(5)If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.
136Review of decisions
Application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister under subsection 134(1), (3A) or (4).
494AGiving documents by Minister where no requirement to do so by section 494B method
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:Under section 494D a person may give the Minister the name of an authorised recipient who is to receive documents on the person’s behalf.
494BMethods 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.
Giving by hand
(2)One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3)Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a)is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
ANNEXURE A
(c)appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of the Minister dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i)the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii)the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
Transmission by fax, e‑mail or other electronic means
(5)Another method consists of the Minister transmitting the document by:
(a)fax; or
(b)e‑mail; or
(c)other electronic means;
to the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.
When the Minister hands a document by way of an authorised officer
(6)For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
494CWhen 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).
Giving by hand
(2)If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
(3)If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
(4)If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
ANNEXURE A
(a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b)in any other case—21 days after the date of the document.
Transmission by fax, e‑mail 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, e‑mail 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.
(6)Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999.
494DAuthorised 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 do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents 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)The first person 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.
(4)The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.
Migration Regulations 1994:
2.55 Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1) This regulation applies to:
(a) the giving of a document to a holder or former holder of a
visa relating to the proposed cancellation or the
cancellation of a visa under the Act; and
(b) the giving of a document under subsection 501G (3) of the
ANNEXURE A
Act relating to a decision to cancel a visa under subsection
501 (1) or (2) or 501A (2) or section 501B or 501F of the
Act; and
(c) the giving of a document to a holder or former holder of a
visa relating to the revocation of the cancellation of a visa
under the Act.
(2) However, this regulation does not apply in relation to:
(a) a notice to which section 137J of the Act relates; or
(b) a person who is in immigration detention.
Note See regulation 5.02.
(3) For a document mentioned in paragraph (1) (a) or (c), the
Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i) is at the person’s last residential or business address
known to the Minister; and
(ii) appears to live there (in the case of a residential
address) or work there (in the case of a business
address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of
the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person’s last residential address, business address or
post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(iii) other electronic means;
to the last fax number, e-mail address or other electronic
address known to the Minister.
(4) For a document mentioned in paragraph (1) (b):
(a) if the person has held the visa for less than 1 year when
the document is to be given, the Minister must give the
document in one of the ways mentioned in subregulation
(3); and
(b) if the person has held the visa for at least 1 year when the
document is to be given:
(i) Immigration must try to find the person; and
(ii) the Minister must give the document in one of the
ways mentioned in subregulation (3).
(5) If the Minister gives a document to a person by handing it to
the person, the person is taken to have received the document
when it is handed to the person.
(6) If the Minister gives a document to a person by handing it to
ANNEXURE A
another person at a residential or business address, the person
is taken to have received the document when it is handed to the
other person.
(7) If the Minister gives a document to a person by dispatching it
by prepaid post or by other prepaid means, the person is taken
to have received the document:
(a) if the document was dispatched from a place in Australia
to an address in Australia — 7 working days (in the place
of that address) after the date of the document; or(b) in any other case — 21 days after the date of the
document.
(8) If the Minister gives a document to a person by transmitting it
by fax, e-mail 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.
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