Federal Court. Should the determination of whether a representative’s email address was provided for the purpose of one matter but not another be determined objectively, without considering the subjective intention? Can an authorisation to receive documents in relation to a business monitoring survey constitute an authorisation to receive documents in relation to a NOICC?
The appellants applied for business (subclass 132) visas, listing a person in the application form as their authorised recipient. On 27 September 2016, the visas were granted. On 12 November 2018, an officer of the Department of the first respondent (Minister) emailed the first appellant, asking whether they were still represented by the same authorised recipient, in which case a Form 956A should be completed for business monitoring purposes.
Question 12 of form 956A asked as follows: “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)?” Question 29 contained the following declaration: “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.”
On 22 January 2019, the same representative emailed the Department a form 956A, leaving question 12 blank. On 2 September 2019, the Department sent letters to the representative, with a notification of intention to consider cancelling (NOICC) their visas under s 134(1) of the Migration Act 1958 (Cth). On the same day, the Department received an undeliverable message stating that the NOICCs could not be delivered.
Section 134(9)(b) of the Act required the NOICC under s 134(1) to be given within 3 years of the first appellant’s first entry into Australia if he was in Australia at the time of grant. Section 494C(5) of the Act provided for the purpose of NOICCs sent via email that “the person is taken to have received the document at the end of the day on which the document is transmitted”. Section 5(23) of the Act provided: “is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb”.
Section 494D(1) of the Act provided 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.”
Regulation 2.55(1)(a) of the Migration Regulations 1994 (Cth) applied to “the giving of a document to a holder or former holder of a visa” and specified the ways in which the Minister could give documents to a person.
On 3 March 2020, the business visas were cancelled. On 17 April 2020, the appellants applied to the second respondent (Administrative Appeals Tribunal) for review of the cancellation. On 22 March 2021, the Tribunal set aside the cancellation and remitted the matter to the Minister.
The Minister then successfully applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellants eventually appealed to the Federal Court (FCA).
Some of the questions to the FCA were as follows:
Question 1: Was there was nothing for the Tribunal to remit to the Department if notice under s 135(1) of the Act had not been given?
Question 2: Was the giving of written notice under s 135(1) of the Act a prerequisite to the Minister’s power to cancel a visa under s 134(1) of the Act and to the Tribunal’s exercise of the same power under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth)?
Question 3: Can it be said that, because of 134(9) of the Act, the visas could not be cancelled at the time of the Tribunal’s decision or now if notice had not been properly given?
Question 4: Did the fact that the email attaching the NOICC was undelivered invalidate service?
Question 5: Were the provisions of the Act concerned with the act of transmission, rather than with actual receipt?
Question 6: Can it be said that whether the representative’s "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"?
Question 7: Can it be said that, as s 494D(1) of the Act required the Minister to give documents to an authorised recipient and as r 2.55 required the giving of documents to “a holder or former holder of a visa”, the latter provision did not apply?
Question 8: Did the form 956A given to the Department nominate an authorised recipient for the purpose of NOICCs?
Question 9: Is an authorisation to receive documents in relation to a business monitoring survey an authorisation to receive documents in relation to a NOICC?
The FCA answered those questions as follows: