Lo v Minister for Immigration & Citizenship

Judgment (9 paragraphs)

[1]

Background to the proceedings the subject of present appeal 1 On 15 October 2001 the applicant Ms Lo, being a citizen of Taiwan of the Republic of China, made application to the then Department of Immigration and Multicultural Affairs ('the Department') for a subclass 127 business skills (migrant) visa. For that purpose the applicant filled out and signed a departmental form headed 'Application for business skills migration to Australia' denoted Form 47 BU, on the third page whereof she stated as her 'Address for correspondence' to be 'RM 703, No. 9, Nan-King E. RD., SEC. 3, Taipei City, Taiwan R.O.C'. 2 Commencing from September 1986, the applicant occupied the office of President of Wan Lun Construction Co Ltd, a Taiwan corporation said to be engaged in 'Domestic & Foreign Civil Engineering And Construction Projects'. By 2001, the applicant was married and she and her husband had two adult children aged approximately 27 years and 23 years respectively. 3 A departmental form which the applicant signed contemporaneously with and which apparently accompanied that application form was a Form 956, dated 15 October 2001, headed 'Authorisation of person to act and receive communication'. Under the heading 'Authorisation by applicant/sponsor', the applicant signified by that form that Fu-Hua (Flora) Tang would '… act on my behalf in relation to my application/sponsorship in dealings with the Department…'. This includes 'authorising DIMA to send that person any communication, documents or notifications relating to my application/sponsorship that would otherwise have been sent to me'. The so-called authorised address of Ms Tang was stated on that Form 956 to be 'RM 703, NO 9, Nan-King E. RD., SEC. 3, Taipei City, Taiwan R.O.C', as in the case of Form 47BU. Under the form sub-heading 'Consent by authorised person', Ms Tang answered in the negative the question '… do you agree to DIMA communicating with you by facsimile, e-mail or other electronic means?' Under a further contemporaneous Form 926 headed 'Declaration Business skills (migrant) class', Ms Lo stipulated Unit 23, 34-38 Park Avenue, Burwood NSW 2134 (of course a suburb of Sydney) to be her 'Contact address in Australia', and by para 5 thereof, the following appeared in print: 'I agree to notify DIMA of my residential address within 28 days of my first entry to Australia as a migrant. Further, for 3 years after my first entry into Australia, I will notify DIMA of any subsequent changes in my residential address, within 28 days after I change my address, including any residential address I may have outside Australia.' 4 Subsequently by letter dated 26 April 2002 addressed to the applicant Ms Lo 'C/- Domini Int'L Developments Corp. RM 703, No 9, Sec 3, Nan-King E. Rd., Taiwan', that being Ms Tang's said 'authorised address', the applicant was informed of the approval of her application by Australian Visa Services. 5 Subsequently on 21 May 2002, the applicant departed from Australia for Taipei and remained out of Australia for approximately 22 months, and on 31 March 2004, the applicant returned to Australia. On 10 May 2004, she departed again from Australia for Taipei, and remained there on that occasion for about 12 months. On 3 July 2004, there was sent by the Department to the applicant a communication addressed to her at No. 9 Rodd Road Five Dock, enclosing a Departmental Form 1010 headed 'Survey of business migrants, migrant class and resident class 24 and 36 months'. The source of the Department's knowledge of that apparent address by that time is unclear from the Court Book, which was not wholly assembled in chronological sequence. There is later reference in some documentation in the Court Book to that address in Australia, but it is an address to which neither party appeared to assign any significance. That Form 1010, as apparently filled out and signed by the applicant on 7 July 2004 and subsequently forwarded by her to the Minister, disclosed her 'Residential address in Australia' as '3 Allenby Crescent Strathfield NSW 2135'. In filling out that latter form, the applicant indicated her agreement to the Department communicating with her by fax and email, and she disclosed thereby those respective particulars as well. Underneath her signature placed on her covering letter returning Form 1010 to the Minister, there appeared her full name and her office as 'President' of 'Saint Island (Australia) Pty Ltd', 9 Rodd Street Five Dock, which was of course different to her said residential address in Strathfield disclosed in the Form 1010 thereby enclosed. The applicant placed a signifying cross in the box located against the printed words of the form, 'All written communications about Business Skills monitoring should be sent to "Myself"'. In so far as that Form 1010 referred '… to the address for communications that you have provided in this form', the only address appearing therein, as so completed by the applicant, was the said residential address '3 Allenby Crescent Strathfield NSW 2135', though the applicant's letter returning Form 1010 to the Department, signed and completed as I have just indicated, bore a different address (inferentially a business address). There was left blank the space provided for nominating an 'Authorised recipient'. By that time more than two years had elapsed from the time of the approval of the applicant's original visa application. 6 By affidavit evidence of the applicant tendered to the Court (sworn 28 September 2006), the applicant asserted that 'I did not personally insert the details onto the said form', referring thereby to Form 1010, and that '[t]he details were typed and written on the form by Fu-ha-Tang… she asked me questions and used information provided by me to complete the form… she asked me to sign it. I then signed the form'. Counsel for the Minister objected to the admissibility of the evidence and I indicated that I would give my ruling in my reserved reasons for judgment. On further consideration, I think that the evidence is of no utility or relevance so far as it goes, and for what it may matter, ought to be rejected. 7 On 9 April 2005 the applicant returned to Australia. On 13 April 2005, the Department sent by post to the applicant a comprehensive communication addressed to her at 3 Allenby Crescent Strathfield NSW 2135, that being as I have above stated the residential address provided by the applicant in her Form 1010, subsequently of course to her having provided her original application Form 47BU in 2001. That communication contained notice of Departmental intention to cancel her business skills visa. That notice referred to the statutory requirement that as a business skills visa holder, she was obliged under s 134(1) of the Migration Act 1958 (Cth) ('the Act') to obtain a substantial ownership interest in an eligible business, and to become involved in the day-to-day management of that business at a senior level by way of active utilisation of her skills. The notice explained that whilst a business skills visa may be cancelled under s 134(1) by reason of non-fulfilment of those conditions, it must not be cancelled if in accordance with s 134(2), the visa holder is considered in effect to have made genuine efforts to obtain ownership interest in an eligible business in Australia, made a genuine effort to engage in business, and to have observed and complied otherwise with the visa requirements. The notice further explained that the Department was not currently satisfied that the applicant was observing and complying with her visa requirements, and that in order to avoid cancellation, the applicant was required to satisfy the Department that she had made, or was likely to continue to make in the future, a genuine effort to utilise her skills in participating actively at a senior level in the day-to-day management of an eligible business in Australia, or that she intended to continue to hold a substantial interest in any eligible business and to utilise her skills in actively participating at a senior level in the day-to-day management of such business operations. 8 On 5 May 2005 the applicant completed Departmental Form 956 styled 'Appointment of a migration agent or exempted agent', being a form which presumably superseded in Departmental use that Form 956 which she had signed earlier on 15 October 2001. That form was received by the Department's Perth Office from the applicant on 20 May 2005. By that form the applicant appointed Mr William Luong of Sydney as her migration agent in Australia. Not insignificantly in my opinion, that form disclosed as her 'Current Residential address' No. 3 Allenby Crescent Strathfield NSW 2135, that being of course the address earlier disclosed as her residential address in Australia in her completed Departmental Form 1010 of 7 July 2004. It also disclosed the names of three other persons having the surname Lee, the implicit predication thereof being that their wife/mother's said address was also theirs. Why the same was sent to or in any event received in the Department's Perth Office, rather than its Sydney Office, does not seemingly appear in the evidence. By letter of 13 May 2005, Mr Pun, the Chairman of Chinese Australian Union Inc, made submissions on the applicant's behalf addressed to the Department's Sydney office, as did Mr Luong of Streamline Migration Services, by letter dated 17 May 2005, who is a migration agent. In at least the latter case, the letter was sent in purported response to the Department's said notice of intention to cancel of 13 April 2005. 9 Subsequently on 21 June 2005, being more than two months of course after the Departmental notification of intention of 13 April 2005, the Minister's delegate, by letter sent to the applicant's said migration agent Mr Luong at his address, Suite 1603, Level 16, 87-89 Liverpool Street Sydney, cancelled the applicant's subject business skills visa on the grounds that she had not obtained a substantial interest in an eligible business in Australia, and further that she was not utilising those skills by participating at a senior level in the day-to-day management of any such eligible business, and yet further that she did not intend to hold a substantial interest in a business in Australia. In that context, the delegate drew attention to the circumstances that the applicant had been in Australia for less than four months during the preceding years during which the visa had been in operation, but had not purchased any real estate or fixed assets in Australia at least during those years, nor had the applicant provided evidence to the Department that the turnover of her nominated corporate business vehicle (the abovementioned Saint Island (Australia) Pty Ltd) had met any of the guidelines for genuine effort in relation to establishment of any business in Australia, nor had she satisfied any of the guidelines otherwise for the demonstration of genuine effort in those respects. At the time of the cancellation of the applicant's visa, the Minister's delegate cancelled also the secondary visas of her husband Mr Lee, and those of their two adult children. 10 I should record for completeness that the delegate's 'Record of Decision' (erroneously dated 21 June 2004) included the following note: 'In addition, I note the claims made stating the circumstances preventing the visa holder from fulfilling her visa obligations. While I am sympathetic to the circumstances of the visa holder, I note that these events occurred before the actual grant of the business skills visa. Therefore, I do not consider that she is committed to engaging in business activity in Australia or has a serious willingness to comply with the conditions attached to her business skills visa.' Those circumstances to which the delegate referred were recorded in a large amount of detailed material contained in the Court Book. The same would have been doubtless as distressing as they were dramatic to the applicant and her family, but are of course matters entirely for the Minister's discretion and not for this Court to address and take into consideration to address in these reasons. 11 The initial response of the applicant to the visa cancellation was the lodgment of an application, made on 15 July 2005, for review of that decision of the Minister's delegate by the Administrative Appeals Tribunal ('the Tribunal'). That application was lodged by the applicant's Sydney solicitors, Brett Slater Solicitors, who have since continued to represent the applicant in the context of her communications and disputes with the Minister, as well as the subject proceedings. At the time of lodging the application, the applicant's solicitors raised the issue on her behalf of whether the notice of intended cancellation had been effectively given to the applicant in accordance with the procedural requirements of ss 134 and 135 of the Act, and the Tribunal convened a preliminary hearing to address that issue. The relevant provisions of ss 134 and 135 are later reproduced in these reasons. That issue was resolved on 9 March 2006 in favour of the Minister by Professor G D Walker, Deputy President of the Tribunal, pursuant to reasons for decision which he provided. It was found by the Deputy President that the notice of intention to cancel the applicant's business skills visa was validly given in accordance with ss 134(9) and 135 of the Act, that notice having conformed in his view to the legislative requirements by '… forwarding it to her last known address as provided by [Ms Lo] on her 24 month business survey in compliance with s 494B of the Act', referring thereby to the abovementioned Form 1010 signed by the applicant on 7 July 2004, and which disclosed her residential address in Australia of No. 3 Allenby Crescent Strathfield NSW 2135 (s 494B is later reproduced in these reasons). 12 In his reasons for interlocutory decision, Professor Walker set out the history of communications to which I have referred, and addressed certain submissions made to the Tribunal on behalf of the applicant which were not at least precisely in line with the submissions made on her behalf to this Court in the present proceedings. Reproduced below are Professor Walker's concluding paras [33] and [34] of his reasons for decision: '33. More importantly, there is evidence pointing to the applicant's intention when she completed the Form 1010. On 5 May 2005, ten months after completing the Form 1010, the applicant signed a second Form 956, this time appointing Streamline Migration Services in Sydney as her migration agent. Question 3 on that form… invited the applicant to tick one of three boxes. She was asked to indicate whether she had "appointed a migration agent or exempted agent", or "changed your migration agent or exempted agent", or "ended the appointment of your migration agent or exempted agent". She ticked "appointed a migration agent", not "changed your migration agent", thereby indicating her belief that she did not at the time have a migration agent authorised to receive communications on her behalf. That rather undermines her contention at the hearing that, while she did not use Ms Tang's services in preparing the Form 1010, she still viewed her as her agent for other migration purposes. 34. In my view the Form 1010, when construed as a whole and in light of the surrounding circumstances, indicated an intention to receive departmental communications personally and not through Ms Tang in Taipei. I therefore conclude that the notice of intention to cancel the visa dated 13 April 2005… is valid.' 13 I have of course already recorded the circumstances of the applicant's provision successively to the Department of the two Forms 956, the latter referring to the applicant's residential address in Australia of No. 3 Allenby Crescent Strathfield NSW 2135. The address on the second of those two forms was also in line with her completed Form 1010 of 7 July 2004. Professor Walker's reasoning reflected in my opinion at least a formidable response to the applicant's purported reliance upon the nomination of the different address of Ms Tang appearing in the abovementioned Forms 47BU and 956, each bearing the earlier date of 15 October 2001. The issue arising is whether nevertheless, that address in Taiwan of Ms Tang so disclosed in those earlier Forms 47BU and 956 should relevantly prevail, as the applicant would submit.

Outline of the case for the applicant Ms Lo presented to the Federal Court and as ultimately framed 21 The case of the applicant was to the effect that before the power to cancel a visa may be exercised by the Minister, notice of intention to cancel the visa must be given to the visa holder, such service being rendered a jurisdictional fact by virtue of s 134(9) of the Act (ante). An initial issue immediately arising is that the subsection does not explicitly so provide, and that accordingly the applicant needs the support of implications arising from the operation of the Act according to its true construction. In any event, it was said by the applicant to follow from the said proposition that a finding of fact necessary to found jurisdiction by reason of the service of notice of intention to cancel may be reviewed by appropriate curial process. I was referred by the applicant in that context generally to the following dicta of the joint judgment of all members of the High Court presiding in Craig v South Australia (1995) 184 CLR 163 at 177: 'If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain.' I was also referred to Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 148, where the following restatement of principle in the circumstantial setting there arising appears in the joint reasons for judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ: 'The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome… The determination of the question whether Collex proposed a "non-complying" development, which turned upon the application of the criterion of "special industry", was a condition upon the existence of which there operated the obligation that the Commission not grant consent… the answer depended, not upon the combined operation of fact and law, but upon the opinion on the matter of the Commission; an opinion based on the evidentiary material before the Commission.' 22 The criteria for cancellation depends upon the Minister's satisfaction as to the circumstances the subject of subsections (1) and (2) of s 134, and a notice having been 'given' to the applicant in conformity with subsection (9) of s 134 and subsection 494D of the Act. The sole issue arising on the present application is whether the requisite s 135 notice has been thus 'given'. Thus the question that arises is whether the statutory notion of 'given' is satisfied in the present somewhat complex context in which the notice of intention was provided to the applicant by sending the same to her at the address specified in the applicant's Form 1010, namely '3 Allenby Crescent Strathfield NSW 2135', and repeatedly so specified in the applicant's Form 956, signed on the 5 May 2005, instead of to Ms Tang at her address 'RM 703, NO. 9, Nan-King E. Ed, RD., SEC. 3, Tapei City, Taiwan R.O.C.' as originally stated in the applicant's Form 47BU and the initial Form 956. 23 Moreover the applicant contributed further to the confusion, perhaps understandably as well as implicitly created within the Department, by the following virtually contemporaneous documentation provided by or on behalf of the applicant to the Department, being Agreement of Appointment bearing date 1 August 2004 made between Saint Island (Australia) Pty Ltd and Chuan Sheng Enterprise Ltd Co., the address of the former having been again disclosed as '9 Rodd Rd, [Fivedock] NSW 2046, Australia', as was the case of the departmental form 'Client Summary-Off Shore' apparently or perhaps furnished simultaneously if the structure of the Court Book be any guide. 24 The applicant's contentions as to the non-fulfilment of valid giving of the Minister's notice of intention to cancel the applicant's visa embodied in essence two bases, the substance of which may be summarised below: (i) the first basis was that the address to which the 'Notice Of Intention To Cancel Your Visa' bearing date 13 April 2005 was sent, being No. 3 Allenby Crescent Strathfield NSW 2135 as aforesaid, was obtained by the Minister from the applicant's 24 month business survey; that notice of intention to cancel was asserted to have been never served upon the applicant's 'authorised recipient', Ms Tang, pursuant to s 494D of the Act, and the notice was therefore said not to have been validly given to the applicant as required by that legislative provision; the address which the Minister obtained from that 24 month business survey was said by the applicant to have been thus obtained as a consequence of actions by the Minister which were not authorised by the Act and were thus beyond jurisdiction; accordingly it was submitted that the Minister should not be permitted to rely upon actions beyond the Minister's jurisdiction to validate actions subsequently taken which depended upon those allegedly unlawful actions; (ii) the second (or perhaps complimentary) basis was that it was said to be an established fact, at the time the notice of intention to cancel was thus served, that the applicant had not varied or withdrawn the nomination of Ms Fu-Hua (Flora) Tang of RM 703, No. 9 Nan-King E. Rd., SEC. 3, Taipei City, Taiwan, R.O.C. 'as the person authorised to receive any communications'; the notice of cancellation was therefore said not to have been validly given at all, s 494D being submitted to require that such notice be served upon the 'authorised recipient', (that being the subsection 494D(1) expression), and thus not the person who had given to the Minister a 'written notice' within the purview of subsection (1) of s 494D; no notice was said to have been therefore 'given' to the applicant as the 'holder'of the subject 'business visa' for the purposes of ss 134(9) and 135(1); in other words since the authority to Ms Tang to act as the applicant's authorised recipient had not been withdrawn by the applicant at the time when the notice was purportedly served, there could not have been any valid service of the notice. 25 On the footing essentially of those submissions in summary of the applicant, the applicant contended that neither the Minister, nor the Tribunal standing in the Minister's shoes, had jurisdiction to cancel 'a business visa' under s 134 of the Act, unless the requirements of s 134(9) have been complied with. Reference was made for comparison to Saleem v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 234 (Allsop J), which involved the exercise of the power given by s 109 of the Act to cancel a visa by reason of 'non-compliance by the holder of [the] visa' with the obligation pursuant to s 101 of the Act to '… fill in his or her application form in such a way that: (a) all answers on it are answered; and (b) no incorrect answers are given', and where the Minister had decided that '… there was non-compliance by the visa holder in the way described in the notice' within s 108 of the Act. 26 Reference was thereupon made by the applicant to the provisions of s 494D (infra) relating to the appointment of an authorised recipient. By reason of the legislative scheme, the applicant submitted that it was Ms Tang who was the authorised recipient and who was the person to whom the notice of intention to cancel her visa was required to be given, and further that the notice was required to be given to her at 'RM 703, No. 9, Nan-King E. Rd. SEC. 3 Taipei City Taiwan R.O.C', being of course the original address appearing on the initial Form 956 dated 15 October 2001, but at no stage had appropriate notice of intention to cancel been given to her by the Minister at that address. It was further asserted by the applicant in that context that Ms Tang 'was authorised under the 2001 notice to receive on behalf of the applicant any documents or notifications relating to the business visa application made in October 2001'. It was emphasised in that regard that '[i]f a visa holder has notified the Minister that… all documents [are] to be given to an authorised recipient… then the authorised recipient is the person who must be given them', and that 'actual service on the visa holder, without service on the authorised recipient, is not effective service because of the operation of s 494D'. 27 The applicant contended that '… the critical question is whether as at 13 April 2005 (being the date of the Department's notice of intention to cancel her visa), [Ms Lo had] withdrawn the authority to Ms Tang', being withdrawn in the sense that Ms Tang was no longer the applicant's authorised recipient. The Tribunal was said to have relied upon what the applicant wrote on her Departmental Form 1010 sent to the Department in July 2004, which it will be recalled made reference to the address No. 3 Allenby Crescent Strathfield NSW 2135. The applicant pointed out, in any event, that what was written on the Form 1010 signed by her on 7 July 2004 was improperly obtained by the Minister's Department, and 'should not be relied upon as evidence of the applicant's intentions', because that Form 1010 was sent to her at Number 9 Rodd Road Five Dock NSW, yet at that time the applicant was in Taiwan, and that therefore the form should have been sent to Ms Tang as the applicant's authorised recipient. I should interpolate to further mention in that context that on 19 July 2004, what appears to have been the Australian company Saint Island (Australia) Pty Ltd was caused to be incorporated by the applicant and Hui-Sheng Lee, each having the address in the State of New South Wales of Australia of No. 3 Allenby Crescent Strathfield, NSW, as recorded by the Australian Securities and Investments Commission. It was thus the case of the applicant that the service of that Form 1010 'plainly did not comply with the requirements of s 494D(1)', and that therefore the Minister 'should not be permitted to rely upon information it obtained from the applicant in a manner not permitted by the statute to support the legality of actions subsequently taken by it against the applicant'. Moreover the situation was said by the applicant to be 'analogous to the [Minister] being permitted to take advantage of material obtained by it in breach of the requirements of procedural fairness'. 28 The applicant's second argument was that the Tribunal reached the wrong conclusion when it found that by submitting Form 1010 to the Department, the applicant's intention was to advise the Minister that she wished to receive departmental communications personally and not through Ms Tang in Taipei. In that regard, relevance was attributed by counsel for the applicant to her affidavit evidence that 'I completed the Form 1010 in which I nominated my residential address as 3 Allenby Crescent Strathfield', but that 'I did not intend to make this my address for service of documents by the department [and] I did not intend to revoke the authority of Fu-Ha Tang, my migration agent in Taiwan, to receive documents on my behalf'. Evidence of her uncommunicated subjective intention in that regard, without more, would at least normally have no statutory significance, in the absence of formal communication to the Department of any such intention. What at least primarily fell for attention in the proceedings was the documentary evidence communicated objectively by or on behalf of the applicant to the Department. 29 The applicant next asserted that '[a]s the heading of Form 1010 suggests', that Departmental document is in the nature of 'a survey form', and further that '[t]he obvious focus of anyone filling out this form is to provide the survey information requested'. However, one component of the information sought by the Department from the applicant, as she acknowledged implicitly by her letter of 5 August 2004 duly signed by her as President of Saint Island (Australia) Pty Ltd of No. 9 Rodd Road Fivedock NSW 2046, was the question numbered 71 requesting information regarding the person to whom '[a]ll written communications about Business Skills monitoring should be sent…'. In that regard she marked with a cross, of course as signatory to that Form as so completed, the box denoted 'Myself'. No other address having been denoted on that Form 1010 other than '3 Allenby Crescent Strathfield 2135 NSW', and moreover there having been left blank by her the box denoted 'Authorised recipient', such Form 1010 as signed and returned by the applicant to the Department in my opinion could reasonably have been used by the Department as the applicant's address for further communications. At question three of Form 1010, which reads '[d]o you agree to DIMIA communicating with you by facsimile, e-mail, or other electronic means', the applicant marked with a cross the box denoted 'Yes', and provided thereby an email and facsimile number. The fact that neither number provided was connected to the residential address given in question four is not material, since communication by facsimile or email was not specified by Form 1010 to be the only means of further or future communication. 30 The applicant next sought to render as of no significance relevantly the content of the subsequent Form 956 signed by the applicant (inter alia) on 5 May 2005, by reasons of the same having been thus provided by the applicant to the Department after the Minister gave to the applicant notice of intention to cancel by its abovementioned letter of 13 April 2005 (see [7] above). The applicant described as 'misconceived' the Tribunal's supposed finding that the applicant's conduct of nominating a migration agent 10 months after filling out Form 1010 'as being probative of her intent at the time she filled out the Form 1010'. The applicant further asserted that the 'form was patently filled in by the new migration agent and simply signed by the applicant', and that it was 'unlikely that the applicant's mind was…focused on whether the appointment of the new agent was properly described …in Form 956'. What I have already indicated in [28] above as to the applicant's uncommunicated state of mind bears repetition. 31 The applicant submitted next that what was asserted to be the Minister's failure to comply with the procedure stipulated by s 494D of the Act as to the so-called 'actual service' requirements relating to the relevant written communications cannot 'be displaced by proof of actual service on the applicant'. It may be thought to be somewhat of an enigmatic contention, given that bringing directly to the attention of the applicant herself notice of a critically material matter could hardly be described in any normal or usual context as less effective than bringing that same factor to the attention of a purported authorised recipient. In any event, in support of the contention that s 494D 'is not merely a deeming provision' but rather describes what 'actual service requires', the applicant pointed to the use of the word 'otherwise' appearing in the text below the title 'Authorisation by applicant/sponsor' in Form 956, which reads '[t]his includes authorising DIMIA to send that person any communication documents or notifications relating to my application/sponsorship that would otherwise have been sent to me'. The applicant also pointed to the use of that same word in part of the text appearing below the title 'Part H - Options for receiving written communications' in Form 1010, which reads, '[a]uthorised recipient - This is a person authorised to receive written communication other than a migration agent. All written communications that would otherwise have been sent to you in relation to this application will be sent to that person' (see again [29] above). 32 The applicant further submitted that the question of whether an authorisation has been withdrawn or varied must be considered subjectively and where there is no direct evidence of intention 'this is assessed having regard to the circumstances', reference being made to Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685 at [35] and Qiu v Minister for Immigration and Multicultural and Indigenous Affairs (2006) FLR 120 at [24] in support of that proposition. The applicant observed in any event that even if the issue of withdrawal needs to be assessed objectively, and the contents of Form 1010 are available for such an inquiry, 'at its highest the…form does no more than vary the authorisation to Ms Tang by providing that "written communications about business skills monitoring" were to be sent to the applicant'. Aside from any debate as to the materiality of '[a]ll written communications about Business Skills monitoring…' the subject of par 71 of Form 1010, the fact is that some two and half years or so after the signing by the applicant on 15 October 2001 of the original or initial Form 956, the applicant left blank and hence inapplicable in the context of Form 1010 the fourth box in Part H bearing the description or subject 'Authorised recipient'. To the extent that the hypothetically reasonable person may be taken to have assigned significance to filling out and signing that Form 1010, the evident intention of that person objectively speaking would have been to provide updated information to the Department, upon which the Department would be objectively presumed to place reliance.

The Minister's response to the applicant's case as so ultimately framed above in summary 33 The Minister's response to the submissions of the applicant commenced with the observation that the applicant's authorisation in favour of Ms Tang, made of course on 15 October 2001 and headed '[a]uthorisation of person to act and receive communication' and numbered 956, was for Ms Tang '... to act on my behalf in relation to my application/sponsorship in dealings with the Department of Immigration...'. Whilst therefore that form comprised an authority said to include '... authorising DIMA to send that person any communication documents or notifications relating to my application/sponsorship that would otherwise have been sent to me', the authority was said not to '… extend to every matter in which the Minister might have dealings with the applicant'. It was submitted by the Minister to follow therefore that '... there was no relevant authorised recipient appointed at the time that the delegate sent out the 24 month sponsorship form (referring thereby to Form 1010) headed 'Survey of business migrant class and resident class 24 and 36 months', or more here relevantly, the 'notice of intention to cancel' sent by the Department on 13 April 2005. By 'authorised recipient', the Minister used the description to that effect contained in s 494D(1). Accordingly it was contended by the Minister that s 494D had no application to the present case. 34 In support of that threshold submission of the Minister said to be premised upon a natural reading of the applicant's written authorisation (ie Form 956) signed on 15 October 2001, it was pointed out by the Minister that there was no reason to believe that a person who is applying for a visa to enter and remain in Australia would necessarily wish or intend to retain the person so authorised as a recipient in relation to correspondence concerning the visa application to remain a recipient for all subsequent dealings with the Minister, in the absence of a written indication to the contrary. That was said to be especially the case where, as here, it was the apparent intention of the applicant, at the time of grant of the controversial authority (ie the 'Authorisation of person to act and receive communication' signed by the applicant as early as 15 October 2001), to move forthwith to Australia, and thus materially distant from her Taipei resident recipient (ie Ms Tang). There is I think force in that submission. 35 It was submitted moreover by the Minister that '... if somehow, these authorisations should not be read according to their natural terms but in some more general fashion, this would not assist the applicant'. That was said by the Minister to be so because prior to the giving by the Department of the notice of intention to cancel the subject visa, the applicant Ms Lo had informed the Minister, in the context of her completion on 7 July 2004 of Form 1010, '... that she wished all correspondence in relation to the monitoring of her business skills ... to be sent to her personally, [the applicant] electing not to tick the box nominating an authorised recipient', but only the box nominating 'Myself'. Having regard to the time which had elapsed and the events which had happened since the signing of the initial Form 956 back on 15 October 2001, there is evident force to that submission. It was further said by the Minister, in my opinion rightly, that '[n]othing in the relevant provisions of the Migration Act indicate that a person can require the Minister to send correspondence both to an authorised recipient and the person[s] themselves', and further that '[y]ou either authorise a person to receive correspondence for you or you do not'. It was yet further said by the Minister that it was 'unambiguous that by July 2004' (ie the date of compilation by the applicant of Form 1010), the applicant did not seek to 'authorise any person to act on her behalf… in dealings with the Department…', to cite in that regard the text of Form 956. In that regard, reference may be made again to Part H of Form 956 headed 'Options for receiving written communications', in relation to which the applicant signified her wish to receive in person 'all written communications about Business Skills monitoring' from the Minister. That submission was said to be further sufficient per se to dispose of the applicant's case. 36 I have already observed incidentally that by question 3 of Part A of that Form 1010, as completed by the applicant, she indicated her agreement to the Department communicating to her by both facsimile and email, the relevant contact details being of course detailed thereby. I have also already observed that the applicant's residential address in that Form 1010 so completed by her on 7 July 2004 was 'No. 3 Allenby Crescent Strathfield NSW 2135' (see again par 5 of Form 1010), that being the address of 'Myself' (see again par 71 of Form 1010) and said by the Minister to be at least to cover '[a]ll written communications about Business Skills monitoring ...'. The Minister acknowledged in that context that the applicant sought nevertheless to avoid the consequences of the foregoing circumstances in two ways which I will address below. 37 The first way was to tender testimonial evidence as to the applicant's absence of any intention, by her completion of Form 1010 and the submission thereof to the Minister, to authorise the withdrawal of her nomination of Ms Tang as her 'authorised recipient'. As I have foreshadowed, the Minister objected to the admissibility of what was described as self-serving evidence of subjective intention to any such effect and submitted that it was incorrect to construe the operation of s 494D(3) as turning upon the subjective intention of the person completing the relevant form. The second way was to contend that 'even if the [Form 1010] she sent would have the effect of withdrawing the authorisation, this Court should determine that it does not have that effect because that form [being Form 1010] upon which the applicant made that nomination [of herself] had itself not been sent to her authorised recipient' being Ms Tang. It was of course on or about 7 July 2004 that the applicant furnished to the Department the Form 1010 which she had signed. The Minister observed that no authority was however identified in support of any such proposition. I do not think that proposition could conceivably be sustained. 38 The further issue next addressed by the Minister was whether in any event, a jurisdictional error would arise from a breach of s 494D(1) by not giving any requisite notice to Ms Tang in Taiwan. Nevertheless upon the hypothesis of breach of s 494D(1) on the Minister's part, the Minister made the following observations and submissions: (i) it was not in dispute that the Tribunal, like the Minister, has no power to affirm the cancellation of the holder of a business skills visa unless a written notice under s 135 of the Act has been given to that holder within the three year period prescribed by s 134(9) of the Act; in the present case, there was no dispute that the applicant had received the relevant notice of cancellation within the prescribed period of time; the issue arising at the instance of the applicant was whether s 134(9) should be construed as being subject not only to the giving of the statutory notice to the applicant but also to the service thereof upon her purportedly authorised recipient; (ii) subsection 134(9) does not in any event 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]'; (iii) 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 (which I have earlier summarised), unlike incidentally many other provisions of the Act; in those circumstances, the Minister is empowered to use any of the methods specified in s 494B but is not required to use those methods; in that regard s 494A stipulates relevantly that '... 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)'; (iv) the issue involved therefore becomes 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; (v) the Minister submitted that s 494D 'imposed a duty upon the Minister to provide correspondence to an authorised recipient', but submitted that it did not follow that when that duty is breached in circumstances where nevertheless the principal received the relevant notice, that such notice is ineffective until the authorised recipient is also given the notice; (vi) moreover the Court decided in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221 at [13]-[20] (Mansfield J) that deemed notification to a principal is effective, even if an authorised recipient is not given a document contrary to a provision substantially equivalent to s 494D; (vii) 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; so much was said to have been held in the course of the analysis of the Full Federal Court (Gray, Whitlam and Mansfield JJ) in VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 at [6], [9] and [27]; and (viii) in the present case there was no doubt that the applicant Ms Lo received actual notice from the Minister, as well as deemed notice irrespective of notification to any authorised recipient; in those circumstances the Minister submitted that there was no failure on the Minister's part to give the applicant a notice within the time prescribed by ss 134(9) and 135 of the Act. 39 As to the reasons for judgment in Makhu, I would observe that the applicant there involved sought to make out a case to the effect that he was not given the opportunity that would flow from the Tribunal's compliance with the invitation stipulated by s 359A of the Act. That section of the Act requires the Tribunal to 'give to the applicant in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that [it] considers would be the reason, or part of the reason, for affirming the decision that is under review'. Makhu concerned an applicant who had nominated a migration agent, in accordance with s 379G(1) of the Act, as the authorised recipient of communications under the Act. The Tribunal subsequently sent the applicant a letter for the purposes of s 359A of the Act, thereby highlighting certain deficiencies in his application and inviting him to address them. However, the letter was not addressed to the authorised recipient (the migration agent) at the migration agent's address, but rather it was addressed to the applicant care of the migration agent at the migration agent's address and it was copied to the applicant at his residential address. The applicant deposed as to not having received that letter. 40 Mansfield J observed at [18] to [19] in Makhu as follows: '18. I do not accept that by nomination of his migration agent as an authorised recipient, under s 379G of the Act, the notice under s 359A must only be given to the applicant by being addressed to and sent to the migration agent. Section 379G(2) provides: (2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.' 19. As noted, the letter of 6 February 2003 was addressed to the applicant care of the migration agent at the migration agent's address and to the applicant at his residential address. Section 379G(1) applies where the Tribunal has given to the authorised recipient, instead of the applicant, the document. Section 379G(2) provides, firstly, that giving the document to the authorised recipient means that the Tribunal is taken to have given the document to the applicant. However, it also expressly preserves the right of the Tribunal to give to the applicant a copy of the document. That it did.' 41 The applicant submitted that the reasoning of Mansfield J assisted her case because 'his Honour concludes that personal service is permitted by s 359G(2) where there has been purported service on the authorised recipient under s 359G(1) as well, (and, by implication, not otherwise)'. The applicant submitted, in the alternative, that if his Honour's decision is construed as standing for the 'broader proposition that deemed notification to a principal is effective even if an authorised recipient is not given a copy, then the decision is distinguishable because the service of the s 359A notice in that case was a procedural requirement in the course of the exercise of jurisdiction'. It was contended therefore that in the present situation, the service of the notice of intention to cancel is necessary relevantly to found jurisdiction. 42 The applicant further invoked Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1000, where Raphael FM found that a decision of the Refugee Review Tribunal was invalid because of the absence of compliance by the Tribunal with the terms of the former s 379G(iv) of the Act. In reaching that decision, his Honour made the following observations upon which the applicant seemingly placed reliance: '5. The fact that the Tribunal is entitled also to send a copy of the correspondence to the applicant, does not detract from the importance of the provision requiring it to send the document to the authorised representative for the reasons that Mr Dobbie posits. There is a similar provision in subsection 379G(iv) which I believe supports Mr Dobbie's view that the section itself is bent upon ensuing that at no stage shall the applicant's authorised representative be kept out of the loop. 6. In making the point that I have above, I am sensible of the fact that I appear to be flying in the face of the decision of his Honour Mansfield J in Makhu (supra). With respect to his Honour, whilst it may well be that his decision was correct when handed down, the views of the High Court concerning the importance of mandatory provisions of the Migration Act and the fact that his Honour may not have had the advantage of Mr Dobbie's assistance and his association of subsection 379G(iv) with subsection 379G(ii) permits me, I believe, to respectfully differ from the views expressed by him in that case. His Honour takes a view different to mine as to the work that is required of the word "instead". It appears to me that he uses it to give the Tribunal the ability to choose between which parties the Tribunal may address, whereas I believe that the Tribunal has no such discretion and that, in fact, there are no circumstances in which the authorised recipient should not receive a document.' 43 The parties provided post-hearing submissions moreover concerning the recent Full Federal Court authority of Le v Minister for Immigration and Citizenship [2007] FCAFC 20 (Emmett, Allsop and Middleton JJ). Whilst the Minister submitted that the reasoning of the Full Court in Le is not consistent with the reasoning of Mansfield J in Makhu, he made the qualification that this is not to 'concede that Le is correctly decided or, to concede the issue'. The Minister contended that unlike the situation in Makhu, Le concerned a situation where there had been no grant of the visa and the correspondence in issue was held to be covered by an authorisation of a person under s 494D(1) in relation to the visa application that was still pending in that case. The Minister further submitted that 'the comments by the Full Court in Le to the effect that an authorisation under s 494D(1) continues in force until withdrawn, does not say anything about the authorisation applying to matters outside the scope of the visa application'; in support of that proposition, the Minister relied on their Honour's reasoning at [29], which is as follows: 'It is incumbent upon an applicant to remain in communication with a person who is authorised to receive documents under s 494D(1) until the applicant withdraws the notice given under that provision or varies it pursuant to s 494 (3). It is not for the Minister to ascertain whether or not an Authorised Recipient has died or is inactive. So long as the Minister is able to give documents to that Authorised Recipient by a method that the Minister considers appropriate, the applicant will be taken to have received the documents. Furthermore, the Minister must give a document to the Authorised Recipient.' 44 The Minister also observed that the Full Court in Le at [31], accepted that a breach of s 494D(1) may not constitute a jurisdictional error in a case where the principal received actual notice. It was asserted that in the present case that 'the principal did receive actual notice and the Minister relies upon his submissions to the effect that there has been no jurisdictional error in those circumstances'. 45 In reply the applicant submitted that the Full Court in Le made it clear that s 494D authorisation operates until it is varied or withdrawn and that the Minister's contention that the authorisation in this case did not extend beyond the grant of the visa must be rejected. In support of that proposition the applicant made reference to Le at [24] where the Court observed: 'Nevertheless, an unequivocal requirement of s 494D(1) is that the Minister must give a document to the Authorised Recipient instead of to an applicant. Another unequivocal effect of s 494D(2) is that, by giving a document to the Authorised Recipient, the Minister is taken to have given the document to the applicant.' The applicant further submitted that the 'change of address form in Le (which notified the Minister of an applicant's change of address for correspondence) was not construed as revoking or varying the authorisation. 46 In regards to the Minister's reliance on Le in support of the argument that where actual notice has been received no jurisdictional error arises, the applicant submitted in reply that 'the comment by the Court in Le at [31] that a question may arise as to whether there is jurisdictional error when actual service has been effected is clearly obiter dicta, and does no more than pose the question without suggesting an answer'. The notice of intention to cancel was said to found the jurisdiction to make the decision, and that a failure to strictly meet all the requirements of the Act concerning service of it will be fatal to the jurisdiction which depends upon it. 47 In my opinion, the Minister is entitled to succeed, in the context of the circumstances of this case, essentially in line with his submissions of his case which I have outlined or reproduced. Those submissions seem to me to reflect the correct operation of the legislation presently in force as well as to produce an outcome that gives expression to the prevailing procedural requirements for effective notice of cancellation of visas, and, in particular, business or business skills visas.

At a glance

Court

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Before

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (8)

Cited By (2)