Minister for Immigration, Citizenship and Multicultural Affairs v Nguyen

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 This appeal is against orders made by the primary judge quashing a decision of the Administrative Appeals Tribunal (the Tribunal) to the effect that the Tribunal had no jurisdiction to entertain an application for review on the basis that the application was filed out of time. 2 The appeal should be dismissed on the basis of one of the two foundations of the primary judge's reasons. 3 On 9 February 2021, Ms Nguyen's visa was cancelled mandatorily under subs 501(3A) of the Migration Act 1958 (Cth) (the Act) by reason of Ms Nguyen's substantial criminal record for the purposes of subs 501(7). On 23 November 2021, after representations on behalf of Ms Nguyen by her migration agent and various email communications, including the provision of a completed "Form 956" being an "advice by a registered migration agent / exempt person of providing immigration assistance", a delegate of the Minister decided under subs 501CA(4) not to revoke the cancellation of the visa under subs 501(3A). 4 The delegate's decision was open to review by the Tribunal under subs 500(1)(ba), but by reason of subs 500(6B), an application for such review was required to be lodged with the Tribunal within nine days after the day on which the person was notified of the decision in accordance with subs 501G(1). Subsection 501G(1) sets out the required content of the notice. The notice under subs 501G(1) must be given in the prescribed manner: subs 501G(3). 5 What occurred was described by the primary judge at J[2], as follows: On the day that the delegate's decision was made, an email notifying the decision was sent to an email address of the migration agent. It was the same email address that had been used by the migration agent in earlier communications with the Minister's department concerning the visa cancellation. Some 18 days later the migration agent sent an email to the Minister's department saying: 'we have just noticed the decision'. Shortly thereafter, an application for review was lodged. If the date of the email notification was the date of notification for the purposes of the time limit in s 501(6B) then the application was lodged some 11 days late. 6 The primary judge succinctly and accurately set out the resulting issues before him at J[8]-[10] as follows: [8] The issue for determination is whether the application for review was lodged within time. It is accepted that lodgement within nine days of notification of the delegate's decision was a pre-condition to the Tribunal's jurisdiction. [9] Commencement of the review application within the specified time in s 501(6B) is a 'jurisdictional fact' in the sense explained in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144. The term jurisdictional fact is a label used to describe statutory pre-conditions which much [sic] exist before the repository of power has authority to exercise that power: Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 260 CLR 340 at [47] (Kiefel, Bell, Gageler, Keane and Gordon JJ). Accordingly, a decision-maker does not have authority to finally determine whether a jurisdictional fact exists (noting that in some instances the 'jurisdictional fact' may take the form of an opinion or assessment or a state of satisfaction): see authorities collected in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 255 at [29] (Besanko, Banks-Smith and Colvin JJ). Therefore, in the present case, the findings by the Tribunal concerning whether the migration agent was an authorised recipient are not determinative. Any mistake as to the existence of a fact that is a jurisdictional fact may be corrected by this Court exercising its administrative law jurisdiction. A mistake which has led to error in the assertion or denial of jurisdiction is jurisdictional error. [10] If the communication to the migration agent's email address was proper notification in accordance with s 501G(1) then the application was lodged out of time. If not, then the application for review must be upheld on the basis that the Tribunal has denied in error the existence of the review jurisdiction conferred by s 500(1)(b). 7 The Minister relied upon the operation and fulfilment of subs 494D(1) of the Act, which was and is as follows: 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. 8 It was the proper engagement of subs 494D(1) by the Form 956 in the context of the surrounding documents that was the subject of the proceeding before the primary judge and of the appeal. The primary judge said that subs 494D(1) was not fulfilled or engaged. His Honour was correct to do so for at least one reason. At first instance, reliance was also placed by the Minister upon the fulfilment or engagement of reg 2.55(3) of the Migration Regulations 1994 (Cth). This was also rejected by the primary judge. No complaint was made on appeal in respect of that rejection. 9 It is necessary to set out the communications that occurred between the migration agent and the Department and make comment upon their timing. The primary judge helpfully described the content of the Form 956 at J[14(1)-(8)]. Those paragraphs can be read. However, set out as an annexure to these reasons is a copy of the completed Form 956. These reasons assume a familiarity with J[14] and the annexure. 10 The first ground of the primary judge's decision and of the appeal concerned and concerns the proper construction of subs 494D(1). The primary judge concluded that written notice given by the first person that is contemplated by and complies with subs 494D(1) must state the name and address of the authorised recipient who is authorised by the first person to receive documents in connection with specified matters arising under the Act instead of the first person: That is, the notice must recognise not only that the other person is authorised to receive the relevant documents, but also that the other person is so authorised to receive them instead of the first person. His Honour's reasons for this conclusion were set out at J[18]-[23], as follows: [18] In my view there is much to commend a construction of s 494D which requires the form in which the notice is given to identify the person as being authorised to receive documents in the manner described (that is, instead of the person giving the notice). [19] When s 494D refers to a notice giving details of another person 'authorised by the first person to receive documents' it must be referring to an authority of the kind that is thereafter described, namely an authority to be the sole point at which 'documents in connection with specified matters arising under this Act' (that is matters specified in the notice) are to be received. Otherwise, a person who gave an authority to a migration agent (or other person) to receive documents from the Minister thinking that the documents would also be provided to that person would nevertheless be affected by the consequence specified in s 494D, namely that documents must be given to the migration agent and not to the person who gave the notice. In short, a person who did not know of the statutory consequence and gave no authority for it to occur would be treated as having given authority for documents of the specified kind to only be given to the migration agent (or other person). [20] It is unlikely that it was intended that a person should be treated as having conferred an authority which they did not actually confer. It may be expected that an authority of the kind described with the possibility of very substantial consequences would derive from the person giving the notice and not an unspecified (possibly unexpected) statutory consequence of giving authority to a migration agent (or other person) to receive documents. [21] It must also be recognised that s 494D may operate to afford a significant protection for those people who have to deal with the Minister concerning migration matters. As was observed in MZZDJ at [23]: There may be a variety of circumstances (language difficulties, minority, literacy, unfamiliarity with the Australian migration and legal system, other vulnerabilities, no access to a postal address or to email) in which an applicant feels it is more reliable to authorise someone other than himself or herself to be the recipient of communications from the Minister. This may, but need not, coincide with the retention of a migration agent. [22] However, it is unlikely that such a benefit was to be conferred if it was unintended or there was uncertainty as to what is being authorised. The possibility of vulnerability reinforces the need for certainty as to the authority that is being conferred. Uncertainty may result in a notification that was given by the Minister to the person in accordance with the facilitative provisions of the Migration Act which allows for different means of notification (see, for example, s 494C) operating as notice when the person was acting on the mistaken view that an authority had been given under s 494D. A provision such as s 494D will only operate with fairness to a person dealing with the Minister if there is certainty in the way in any notice is expressed as to the nature of the authority that it confers. [23] Accordingly, in my view, upon a proper construction of s 494D, a notice which does not state that the authority conferred is for the Minister to give documents to the authorised recipient, instead of the person concerned, is not a notice for the purposes of the provision. A notice which simply specified the name and address of another person would not do so. A notice which also said that the other person was authorised to receive documents would not do so. The notice must say that the person is authorised to receive documents from the Minister instead of the person who is giving the notice. 11 For the reasons later set out, we respectfully disagree with the conclusions of the primary judge in this regard. 12 The second ground of the primary judge's decision and of the appeal concerned and concerns whether the Form 956 authorised the agent to receive documents in relation to the cancellation process, rather than in respect of all immigration matters where there was an application process. (See, in particular, boxes 12, 15, 17 and 23 of the Form 956.) 13 At J[24(1)], the primary judge concluded that there was an authorisation to receive documents as follows: The declaration given is that the migration agent is authorised 'to provide assistance'. There is no statement in the form to the express effect that Ms Nguyen is giving notice of the name and address of a person authorised to receive documents. On the express terms of the form, the statement as to where documents may be sent is given by the migration agent. It may be inferred from the terms of the form as a whole that it is a notice of the name and address (namely the email address at Item 7) of a person authorised by Ms Nguyen to receive documents. However, I am unable to see how it may be considered to be a notice identifying the migration agent as a person who is authorised to receive documents from the Minister instead of Ms Nguyen. (Emphasis added.) 14 There was no Notice of Contention that the contents of the Form 956 with or without any surrounding communication was not an authorisation to receive documents. It is therefore unnecessary to consider that issue.