Federal Court of Australia

Lyu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1258

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 16 July 2021 be set aside and in lieu thereof it be ordered that the application for judicial review before the primary judge be dismissed with costs.

3.    The first respondent pay the appellants’ costs of and incidental to this appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BEACH J:

1    Before me is an appeal from a decision made on 16 July 2021 by the primary judge below who upheld the Minister’s application for judicial review of the decision of the Administrative Appeals Tribunal to set aside the cancellation of the Business Talent (Migrant) (Class EA) (Subclass 132) visa of the first appellant and the dependants’ visas of the second to fourth appellants.

2    The primary judge concluded that the appellants had been properly notified of the proposed cancellation of their visas as required by s 135(1) of the Migration Act 1958 (Cth). This conclusion was contrary to the findings of the Tribunal.

3    The notice of appeal before me raises one ground. The appellants say that the primary judge erred in upholding ground one of the Minister’s application (as amended) below. It is said that the primary judge should have found that the visa holders were not lawfully notified of the Minister’s intention to consider cancellation of their visas.

4    It is said that the primary judge erred in finding that there was no limitation on the scope of the authority for Yuko Pan to receive documents. It is said that the first appellant limited the scope of the authority in the relevant covering email to the Form 956A, indicating that the first appellant was authorising Yuko Pan to receive documents only “on his behalf for business monitoring survey.”

5    Now before me, the appellants contended that the primary judge’s conclusion was erroneous because the person to whom the relevant notifications were sent, namely, Yuko Pan, was not authorised to receive such notifications for the purposes of s 494D.

6    Contrastingly, the Minister submits that no error has been shown in the primary judge’s conclusion that the Minister fulfilled the statutory obligation to provide notice by transmitting notices of intention to cancel the visas to the email address of Yuko Pan.

7    For the reasons that follow, I would uphold the appeal. In my view the primary judge erroneously assessed the scope of the relevant authorisation going ultimately to a jurisdictional fact.

Background

8    On 21 May 2015, the first appellant applied for a Business Talent (Migrant) (Class EA) (subclass 132) visa. The first appellant was the primary applicant for the visa. The remaining appellants were his dependents and were included as such on the visa application. They are all citizens of China.

9    On the visa application form the appellants authorised another person to receive written correspondence on their behalf, being their authorised recipient. That person was Rena Zhang. The email address for this person was given as “renazheng@shinyway.com.cn”. The authorisation concerned communications about the application and its outcome.

10    On 21 May 2015, the relevant Department acknowledged receipt of the application.

11    On 13 September 2016 the Department wrote to the first appellant requesting payment of an instalment of the visa application charge. This letter was emailed and sent to a different recipient being Yuqiong Zhou, with an email address “shinyway_au@163.com”. Yuqiong Zhou’s name and email address appeared at the end of this letter.

12    On 27 September 2016 the visas were granted to the appellants. Notification of the grant was sent by the Department to Yuqiong Zhou at the email address just mentioned.

13    On 7 December 2016 the first appellant himself, rather than the authorised recipient, provided to the Department via Ms Martha Yee of the Hong Kong Business Skills Processing Centre, copies of updated passports for himself and the second appellant.

14    On 25 October 2018 Yuqiong [Lucile] Zhou sent an email to Ms Yee concerning the first appellant’s passport. This email was sent from the email address “shinyway_au@163.com” which was the one used in the last correspondence to the Department sent by a person acting on behalf of the appellants. This was responded to by Ms Yee.

15    On 12 November 2018 an officer of the Department sent a courtesy email to Yuqiong Zhou to the address “shinyway_au@163.com” asking whether they were still representing the first appellant for business monitoring purposes. Further, if that was the case, the officer asked for a completed form to be completed within 7 calendar days. The officer provided a link to a pro-forma Form 956A.

16    On 17 December 2018 the same officer notified Yuqiong Zhou at the same email address “shinyway_au@163.com” that the time had now arrived to send the business monitoring survey request. Again, the officer asked whether that person was still representing the first appellant for business monitoring purposes and, if so, to provide a completed Form 956A within 7 calendar days.

17    Now it appears that the Department did not receive a response from Yuqiong Zhou to this correspondence.

18    On 7 January 2019 the same officer emailed what was described as the State Sponsor stating that he had been unable to contact the first appellant and had had no response from the “previous authorised contact”. He said that he had also been unable to locate an email address for the first appellant from their records. He stated that he had sent the survey request letter via international registered post to the last contact address for the first appellant, which was an address in China. So, apparently in the exercise of power under s 137 to require information from the holder of a business visa, the first appellant was apparently sent a “Survey of Business Skills Visa Holders (Form 1010)”.

19    On 22 January 2019, an email response was received from Yuko Pan, on behalf of the first appellant. Yuko Pan said in that email:

As requested, I have been authorised by Mr. LYU Lieping to receive correspondence on his behalf for business monitoring survey. Hereby I would like to send you his 956A form. Provided any request letter of survey, please feel free to contact me. Many thanks. [My emphasis]

20    Now attached to the email was an “Appointment or withdrawal of authorised recipient (Form 956A)” which was signed by the first appellant dated 21 January 2019. The Form 956A indicated that Yuko Pan agreed to receive email communications, as an authorised recipient, at the address: yukopan@shinyway.com.cn.

21    On 29 January 2019 the same officer emailed Yuko Pan saying that he had updated the Department’s records to reflect her as the authorised contact “for this case”, and he provided a copy of the business monitoring survey request letter. That day Yuko Pan acknowledged receipt of the email. This was done using the “yukopan” email address. Clearly, the officer was only dealing with the limited context of the survey and can be taken to have understood the limited authorisation of Yuko Pan in that context. As he said, he treated the authorisation as “for this case”. The context of “this case” concerned the business monitoring survey only and information to be provided. Indeed Yuko Pan’s response was “I will get down to assisting [the first appellant] in providing the documents within the new due date”. There was no other case before the officer.

22    On 12 March 2019 the Department received by post a detailed response to the business monitoring survey request letter including a personal statement outlining the first appellant’s business activities in Australia and the completed Form 1010 “Survey of Business skills visa holders”.

23    The response to question 41 in the Form 1010 stated that the first appellant had received assistance from “Xiao Pan” being Yuko Pan in completing the form. It was not said that she was a registered migration agent.

24    At Part F relating to “[o]ptions for receiving written communications”, the first appellant completed the statement “[a]ll written communications about this application should be sent to” by ticking the box “[a]uthorised recipient”. I need say little more about the Form 1010. The parties’ submissions before me focused on the 22 January 2019 email and the Form 956A.

25    On 2 September 2019, the Department sent letters to the appellants notifying them of the intention to consider cancelling the Business Talent visa and associated visas (NOICCs). The NOICCs were sent by email to Yuko Pan at the “yukopan” email address. On the same day the Department received an undeliverable message stating that the NOICCs could not be delivered to the “yukopan” email address.

26    On 6 September 2019 the Department resent the NOICCs to a different email address: hchfm@huanchengvalue.com. On the same day the Department received another undeliverable message in relation to this email address. Now it appears that a similar email address had been recorded on the first appellant’s incoming passenger card when entering Australia. But unfortunately there appears to have been a typographical error in its use on 6 September 2019. Further, another such undeliverable message was also received in relation to that email address on 20 September 2019.

27    Further, on 6 and 20 September 2019, the Department received additional undeliverable messages in respect of the “yukopan” email address.

28    On 3 March 2020 another person made an enquiry to the Department about the first appellant’s visa situation. The person who made this enquiry was Sindy Qin, a visa consultant with the email address “sindyqin@shinyway.com.cn”. It does not appear that the Department responded to that email. Accordingly, Sindy Qin re-sent the inquiry on 18 March 2020.

29    On 23 March 2020, the appellants’ visas were cancelled. In terms of the first appellant, the Department sent a “Notice of cancellation of a Business Skills – Business Talent (Permanent) (Class EA) – Business Talent (Subclass 132) visa under SECTION 134 OF THE MIGRATION Act 1958”. This notice was emailed to the “yukopan” email address. It was posted to Yuko Pan as well.

30    The delegate found that the first appellant had failed to comply with the requirements of s 134(1)(a), (b) and (c), and that s 134(2) did not preclude the decision to cancel his visa. The delegate also found that the second, third and fourth appellants’ visas had to be cancelled pursuant to s 134(4).

31    Following the issue of the notices of cancellation, there were various emails of 25, 26 and 30 March 2020 from Sindy Qin, Yuko Pan and the first appellant sent to the Department explaining inter-alia that the NOICCs email had been missed because there was a technical problem with the “yukopan” email address from 1 to 9 September 2019. I should say that at this point the limited scope of Yuko Pan’s authorisation was not raised.

32    The email of 30 March 2020 attached a statement of the first appellant dated 27 March 2020 which in part said:

We have received your letter dated 23 March 2020, you stated that on 2 September 2019 a Notice of Intention to Consider Cancellation of your Visa (NOICC) was sent through the Authorised Contact by email at yukopan@shinyway.com.cn, but this email was returned undeliverable. A subsequent email was sent to me on the 6 September 2019 to email address hchfm@huadongvalue.com. Please give me an opportunity to explain why I have not received any Immigration email (NOICC). There was a technical problem with the mail address yukopan@shinyway.com.cn on 1 Sep 2019, which was not successfully solved until 9 Sep 2019. We are so sorry missing your NOICC email on 2 Sep 2019, really apologized for any inconvenience. The email address--hchfm@huadongvalue.com has not been provided before because it is a wrong email address. The email provided on the original 132 online application is renazheng@shinyway.com.cn, the contacts email provided on the FORM 1010 are lulieping139@163.com, 494906854@qq.com, roject.wa.lyz@gmail.com, and the other email address on my business card is hchfm@mall.nbptt.zj.cn (please see attached the card). As a result, we feel so sorry and still have missed your email on 6 September 2019.

33    On 17 April 2020, the first appellant sought review before the Tribunal of the decision to cancel his visa and the dependants’ visas.

34    On 22 March 2021, the Tribunal gave an ex tempore decision setting aside the decision under review and remitting the matter to the Minister for further consideration.

35    The Tribunal found that the NOICC correspondence was not addressed to the last known or notified address as required by the Act. The Tribunal determined, as a preliminary issue, that the appellants had not been notified of the Minister’s proposal to cancel the visas for the purposes of s 135(1), and as also contemplated by s 134(9). Further, the Tribunal was of the view that the first appellant was denied procedural fairness in being denied the opportunity to have a preliminary review of the decision within the Department, which he would have sought had he been properly notified of the original intention to cancel his visa.

36    The Tribunal set aside the delegate’s decision and remitted the matter to the Minister.

37    Now it should be noted that there was nothing to remit if notice under s 135(1) had not been given. The giving of written notice under s 135(1) is a prerequisite to the Minister’s power to cancel a visa under s 134(1), and thus to the Tribunal’s exercise of the same power pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Now because written notice under s 135(1) was required by s 134(9) to be given within 3 years of the first appellant’s first entry into Australia, if his visa was to be cancelled it could not be cancelled at the time of the Tribunal’s decision or now if written notice had not been provided previously.

38    At all events, let me proceed with the chronology.

39    The Minister sought review of the Tribunal’s decision before the primary judge on the ground that the Tribunal should have found that by transmitting the NOICCs via email to the authorised recipient on 2 September 2019, the appellants were lawfully notified of the Minister’s intention to consider cancellation of their visas.

40    This argument found favour with the primary judge.

41    The primary judge said (at [20] and [22]):

Having provided a Form 956A, the operation of s 494D(1) of the Act and r 2.55(1)(a) and (3)(d) of the Migration Regulations 1994 (Cth) (“the Regulations”) impose on the Minister the requirement to give the authorised person any documents instead of the first person. This is clear from the use of the words “must give the authorised person, instead of the first person, any documents” in the section. The capacity under s 494D(2) of the Act to also give a copy to the first person, in this case Mr Lyu, operates no more than to allow the Department to provide additional copies to the first person by other means, but does not in any way supersede or take away from the proposition that effective service is achieved by service on the authorised recipient. It was a courtesy, but does not detract from the initial sending of the notice to the nominated address on the form 956A.

…

[The] Minister fulfilled the statutory obligations required under the Act by the transmission of the NOICC on 2 September 2019 to the nominated address on the form 956A. The fact that it was returned as undeliverable is regrettable, but has no impact on the outcome of the matter as the visa holders were lawfully served with the NOICC on 2 September 2019: (see; Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151 at [25]). The second transmission of the NOICC on 6 September to an incorrect address is again unfortunate, but irrelevant. Effective service occurred on 2 September 2019.

42    The primary judge held that the written notice required by s 135(1) was properly given by the transmission of the NOICCs on 2 September 2019 to the “yukopan” email address which had been recorded on the Form 956A. I note that it is not in doubt that an email address is an “address” for the purposes of s 494D(1) (see MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153 at [30]).

43    The primary judge reasoned (at [23] and [24]):

The fact that Mr Lyu may have provided further more up to date contact details is again, irrelevant. The Minister was obliged to send the NOICC to his nominated representative, as nominated in the Form 956A until and unless this was revoked. The purported limitation in the covering email provided with the Form 956A is insufficient in the Courts view, to operate in such a manner as to limit the express authorisation contained within the form itself. The Department was entitled to rely upon the contact details within the form until such a time as it was lawfully revoked.

This did not occur. The fact that the delivery of the NOICC was unsuccessful is again irrelevant, as the operation of r 2.55(8) of the Regulations, only requires transmission of the document, not successful delivery. By way of analogy, in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657 at [55] it was held that, effective service occurred even though the Department knew when it sent documents by post to the last known address of the applicant that, in circumstances where previous correspondence sent to that address, was returned as undeliverable.

44    I should note one other matter concerning the proceedings below. Before the primary judge was an affidavit affirmed by the first appellant that sought to explain various matters relevant to the authorised recipient question including that he only intended to nominate or appoint Yuko Pan as an authorised recipient concerning the business monitory survey. Its admissibility was not objected to before the primary judge. Nevertheless, its status was unclear to me at least in terms of how parts of it were used. Further, there was no cross-examination. Nevertheless, I have put this affidavit to one side as the question before me involves an objective assessment of the relevant documents and circumstances at the time and how they objectively then appeared in terms of the question of authority, rather than the first appellant’s later asserted subjective intention.

The appeal ground

45    The Minister’s power to cancel a visa under s 134(1) is subject to s 135. Section 135(1) requires that the Minister “give … a written notice … stating that the Minister proposes to cancel the visa” and inviting representations in response before cancelling the visa. It is not disputed that the giving of proper written notice was a precondition to the Minister’s power to cancel the appellants’ visas.

46    Now there was no argument advanced to me by the appellants that the undeliverable notification(s) received in connection with the email sent to the “yukopan” email address on 2 September 2019 meant that there was a failure to give written notice. It was open to the Minister to give the NOICCs by email (ss 494A(1), 494B(5)). Further, the person to whom the email was sent is deemed to have received the document at the end of the day on which the document was transmitted (ss 5(23), 494C(5)). I should note here that s 494C(5) says that “the person is taken to have received the document at the end of the day on which the document is transmitted”. Further, because “to have received” is the perfect infinitive form, the phrase “is taken” has the same force and effect as “is deemed” (s 5(23)). So, the fact that the email was undelivered did not invalidate service.

47    More generally, the provisions of the Act are concerned with the act of transmission, rather than with actual receipt. Moreover, the presumption of receipt embodied in the statutory provisions is irrebuttable. The fact that the email was undeliverable or undelivered did not change that position (see Le v Minister for Immigration and Citizenship (2007) 157 FCR 321 at [25] and [27]). But none of this is an answer to the appellants’ case.

48    Rather, the appellants’ present argument is that there was no deemed receipt of the NOICCs by them under s 494D(2) because Yuko Pan was not an authorised recipient to whom the Minister could give the NOICCs under s 494D(1). It was contended that the email of Yuko Pan on 22 January 2019 limited her authority to receive correspondence as an authorised representative to matters concerning the business monitoring survey.

49    Now the Minister says that whether the “yukopan” email address was provided for the purpose of receiving correspondence about the business monitoring survey only is a matter to be assessed objectively and does not depend on the subjective intention of the first appellant. I agree.

50    The Minister says that it should not be accepted that the authority of Yuko Pan was limited to receiving correspondence about the business monitoring survey alone and to the exclusion of receiving the NOICCs. Now the Minister says that receipt of the survey by the first appellant was the immediate context or prompt for the email from Yuko Pan on 22 January 2019. But, in light of the Form 956A attached to the email, the Minister says that the words “for business monitoring survey” in the body of the email could not be understood as indicating, by negative implication, that Yuko Pan was not authorised to receive the NOICCs.

51    The Minister says that it was open to the first appellant to specify, in answer to question 12 of the Form 956A, that Yuko Pan was an authorised recipient in relation to the survey only. But the first appellant left this question blank. That is, he indicated no limitation on Yuko Pan’s authority to receive correspondence.

52    Now the appellants submit that it is explicable that question 12 was left blank because the categories listed in that question did not obviously apply to the first appellant. But the Minister says that this ignores that “[a]nother matter”, in respect of which it can be indicated that an authorised recipient is appointed, is included as an option in question 12 without limitation and is not restricted to the examples given.

53    Further, the Minister pointed out that as was observed in Le at [27], s 494D(1) is “triggered by an applicant giving written notice of the name and address of another person”. And in this case, the first appellant (being the “first person” referred to in s 494D(1)) gave written notice via the Form 956A which he signed. The Minister says that whilst it may be accepted that s 494D(1) does not prescribe that notice be given in any particular form, where an applicant utilises Form 956A, that form constitutes the written notice for the purposes of s 494D(1). The Minister says that that is consistent with the object of s 494D(1) being to eliminate uncertainty.

54    The Minister says that in this case, the completed Form 956A did not specify particular matters in connection with which the Minister was to give documents to Yuko Pan. So objectively assessed, the Minister says that the Form 956A provided authorisation to Yuko Pan to receive documents in connection with any matters arising under the Act, including the NOICCs.

55    Further, the Minister points out that no argument has been advanced that Yuko Pan’s email constituted a variation of the first appellant’s written notice in the Form 956A in the terms of s 494D(3). Indeed, Yuko Pan could not achieve such a variation as an authorised recipient. Section 494D(3) specifies that an authorised recipient may not vary or withdraw a notice under s 494D(1), save as provided for in s 494D(3A).

56    Further, the Minister says that it may be noted that the reactions of Yuko Pan and the first appellant, upon discovering that the NOICCs had been sent to Yuko Pan, was not to dispute that Yuko Pan was an authorised recipient for that purpose. Instead, it was emphasised that there was a technical problem with Yuko Pan’s email address. But the Minister says that such technical problems as may have existed did not preclude notice being validly given for the purposes of s 135(1) by means of the email sent to Yuko Pan on 2 September 2019.

57    Further, the Minister rejects the suggestion that s 494D did not apply because reg 2.55 of the Migration Regulations 1994 (Cth) applied instead. Regulation 2.55 applies, relevantly, to “the giving of a document to a holder or former holder of a visa” (sub-reg (1)(a)). But s 494D(1) required the Minister in this case to give the document to the authorised recipient, instead of the visa holders. I agree on this last point.

58    Generally, I would reject the Minister’s position concerning the extent of Yuko Pan’s authorisation.

59    Section 494D(1) provides for the appointment of an authorised recipient. The subsection states:

(1)     If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person. (my emphasis)

60    Now the primary judge’s paraphrasing of s 494D(1) was incomplete (at [10]). It did not include the element that the first person has authorised the authorised recipient to receive documents “in connection with specified matters” arising under the Act or the Regulations. Those words have particular significance in the present context.

61    Now by way of background, s 494D(1) was amended by the Migration Legislation Amendment Act (No. 1) 2014. The Explanatory Memorandum for the Bill stated:

Item 11    Subsection 494D(1)

113.    This item omits the words “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” and substitutes the words “authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations” in subsection 494D(1) of Part 9 of the Act.

…

115.    This amendment clarifies that the role of an authorised recipient is merely to receive documents on behalf of the visa applicant in connection with specified matters arising under this Act or the regulations, as the current provision under subsection 494D(1) is broader than the intended policy position. The amendment also addresses comments made by the Full Federal Court in MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156, at paragraph 35, in relation to section 494D of the Act, that an authorised recipient is “constituted effectively as the agent of the visa applicant” because the provision allows the authorised recipient to “do things on behalf of” the applicant. This is broader than the policy intention for the role of an authorised recipient, which is only to receive documents and not to do anything else on behalf of the applicant or person.

…

117.    This amendment also clarifies that the authorised recipient is only authorised to receive documents in connection with specified matters arising under the Act or the Regulations, and not in connection with any matter arising under the Act or regulations in relation to the first person.

…

Item 12    Subsection 494D(1)

119.    This item inserts the words “in connection with those matters” after the words “any documents” in subsection 494D(1) of Part 9 of the Act.

120.    This is a consequential amendment to item 11 above, and clarifies that the Minister’s obligation to give documents to an authorised recipient of a person only extends to documents in connection with specified matters arising under the Act or the regulations, and does not extend to other documents.

121.    The effect of this amendment, together with the amendment made by item 11 above, is that subsection 494D(1) of the Act now provides that 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.

62    So, under the amended version of s 494D(1), there is a requirement that the authorised recipient is only authorised to receive documents in connection with specified matters arising under the Act or the Regulations.

63    Now importantly in the present context, the email sent by Yuko Pan to the officer on 22 January 2019 confirmed that she was authorised by the first appellant to receive correspondence on his behalf for the business monitoring survey. Indeed, the email on 22 January 2019 was responding to emails sent by the officer on 12 November 2018 and 17 December 2018 that I have referred to in the chronology. Such communications only concerned the survey and its completion.

64    Further, the fact that this business monitoring survey limitation was not mentioned in the Form 956A at question 12 does not negate the express authorisation that was given in the covering email for the Form.

65    Moreover, Form 956A is not a prescribed form under the Act or the Regulations. This is confirmed by the Department’s relevant policy in relation to notifying authorised recipients under s 494D.

66    Now in MZZDJ, it was said (at [25]) in relation to Form 956, which was the form used for appointing a registered migration agent, legal practitioner or exempt person:

…It appears to be a standard form used for administrative convenience and consistency of practice, which are in themselves desirable objectives. However, it does not appear to have any statutory role so far as s 494D is concerned.

67    Further, it was said (at [26]) in relation to s 494D:

The level of formality required (or not required) by s 494D is not without significance. The absence of strict prescriptions about form underlines the facultative nature of this provision: it is intended to give applicants a readily accessible means of ensuring communication in relation to their visa applications is undertaken in the most effective manner if they do not wish, for whatever reason, to be entirely responsible for receiving communications and taking necessary action.

68    Now in the present case, the relevant Department officer expressly asked the previous authorised representative (Yuqiong Zhou) by email whether they were still representing the first appellant “for business monitoring purposes” and the answer from Yuko Pan in her email of 22 January 2019 was that she was.

69    Now provision existed in question 12 of Form 956A for specification of the matter for which the authorised representative had been appointed. The question asked there is: “Are you appointing an authorised recipient in relation to an application process, a cancellation or another matter (eg. a sponsorship monitoring and sanction activity by the department, or only one stage of a two stage visa application, or ministerial intervention)?”

70    But I agree with the appellants that it is not surprising that the question was left blank by Yuko Pan, who was not a registered migration agent. The status of the first appellant’s case did not fit into any of the specified categories given at question 12. First, he was not in an application process for a visa. Second, his visa was not in a cancellation process. Third, he was not involved in sponsorship monitoring and sanction activity by the Department. Fourth, he was not at one stage of a two stage visa application. Fifth, he was not seeking ministerial intervention. Generally, he was not involved in the three examples given there of “another matter”.

71    Moreover, any oversight in leaving question 12 blank, if it was one, was cured by specification of Yuko Pan’s authorisation in the covering email. Given the terms of s 494D(1), the primary judge should have found as such.

72    Further, the primary judge also noted that the declaration section at question 29 in the form stated that the authorised recipient was “appointed…to receive all documents.” But the full text of that declaration is: “I declare that I have appointed the authorised recipient named in Question 14 of this form to receive all documents relating to the matter indicated in Question 12 on my behalf.”.

73    So, the declaration is worded with the intent of s 494D(1) in mind, which is that the authorised recipient is appointed to receive documents in connection with specified matters. The declaration did not seek to provide a general authorisation for the representative to receive all documents for any migration matter.

74    Now the evidence establishes that the significant question for the Department at the time of issuing the NOICCs was whether the first appellant had specified a matter for which Yuko Pan was authorised to receive documents. That was clearly so. The terms of the specification were given in the covering email for the Form 956A. Importantly, Yuko Pan did not have any authorisation to receive documents in connection with the cancellation of the appellants’ visas.

75    Now the Minister says that because the completed Form 956A did not specify particular matters, then objectively construed, Yuko Pan was authorised to receive documents in connection with any matters arising under the Act. But in my view there is an air of unreality about this submission.

76    First, it ignores Yuko Pan’s accompanying email of 22 January 2019 which identified the particular and only relevant matter.

77    Second, question 12 of Form 956A was ill-suited for the occasion.

78    Third, in the context of the emails sent by the officer of the Department on 12 November and 17 December 2018 and on 7 January and 29 January 2019, being a chain of communication within which Yuko Pan’s email of 22 January 2019 and the accompanying Form 956A should be understood, it is plain that the circumstances objectively construed do not support the expansive reading of the authorisation asserted by the Minister.

79    Fourth, if it be relevant, the officer’s email of 29 January 2019 made it plain that he understood that the authorisation was for “this case” being the business monitoring survey request matter.

80    Fifth, the business monitoring survey (Form 1010) and the NOICC are separate immigration matters or processes. I agree with the appellants that authorisation to receive documents in relation to a business monitoring survey is not authorisation to receive documents in relation to a NOICC. But of course, although business monitoring and visa cancellations are separate processes, the response or lack of response where proper notification has occurred to a monitoring process can lead to the issue of a notice of intention to cancel a visa.

81    In my view the primary judge erred in his analysis and the appeal must accordingly be allowed. The email sent to Yuko Pan on 2 September 2019 was not effective to give to the appellants the NOICCs pursuant to s 494D and so to notify the appellants as required by s 135(1) that the Minister proposed to cancel their visas. I will make orders accordingly.

Associate:

Dated:    24 October 2022

SCHEDULE OF PARTIES