Federal Court (Full Court). In order to comply with s 494D of the Migration Act 1958 (Cth), does Form 956 need to state that the authority conferred is for the Minister to give documents to the authorised recipient, instead of the person concerned? Did Form 956 authorise an agent to receive communications from the Department about the revocation of visa cancellation, even though it only indicated that assistance was provided with an "application process"?
The Federal Court (FCA) described the case as follows:
1 On 9 February 2021, Ms Thi Tuyet Anh Nguyen's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). A migration agent acting for Ms Nguyen made representations to the Minister seeking revocation of the decision to cancel. Thereafter, there were email communications between the migration agent and the Minister's department concerning the representations. On 23 November 2021, a delegate of the Minister refused to revoke the visa cancellation. The Migration Act provides that an application can be made to the Administrative Appeals Tribunal to review a decision of the kind made by the delegate: s 500(1)(ba). However, 'an application for review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1)': s 501(6B). The issue before the Court concerns whether this time limit was met.
The lodgement of the application to review
2 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.
3 The Tribunal determined that it had no jurisdiction because the application was not lodged in time. It found that the migration agent was an authorised recipient and time commenced to run when the email notifying the decision was sent to the migration agent.
4 Ms Nguyen now seeks to review the Tribunal's decision.
The statutory provisions as to notification
5 Relevantly for present purposes, s 501G provides that if a decision is made under s 501CA to not revoke a visa cancellation decision then the Minister must give a written notice that sets out the decision and the notice 'must be given in the prescribed manner'.
6 Two such prescriptions are relied upon by the Minister. First, s 494D(1) provides:
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.
(original emphasis)
7 Second, reg 2.55(3) of the Migration Regulations 1994 (Cth) applies to 'the giving of a document to a holder or former holder of a visa relating to the … cancellation of a visa'. It provides that the Minister must give the document in one of a number of specified wayswhich include 'by transmitting the document by … email … to the last … email address … known to the Minister'.
Issue for determination
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.
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).
The Minister lost before the FCA and appealed to the Full Court of the FCA (FCAFC), but re-agitating his arguments concerning only the first prescription.
Some of the questions to the FCAFC were as follows:
Question 1: Was the commencement of the review application within the time specified in s 501(6B) of the Act a jurisdictional fact in the sense of a pre-condition which much exist before the repository of power has authority to exercise that power?
Question 2: Can it be said that the extent of the authority here did not include cancellation or cancellation revocation processes, even though Form 956 was attached to the agent’s email which also attached the revocation request, as Form 956 was signed at a time when the first respondent and her agent were not even aware that her visa had been cancelled?
Question 3: Is there a normal presumption that Parliament intends to allow a person to act for the purposes of a statutory provision through an agent?
Question 4: May possible unfairness of application of a statute, especially to people who may well be vulnerable, in any given circumstances, be a powerful consideration in the statute’s construction and interpretation?
Question 5: In order to comply with s 494D, does a notice such as the one contained in Form 956 need to state that the authority conferred is for the Minister to give documents to the authorised recipient, instead of the person concerned?
The FCAFC answered those questions as follows: