Form 956 not a notice under s 494D?

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).

Some of the questions to the FCA were as follows:

Question 1: Was the commencement of the review application within the time specified in s 501(6B) of the Migration Act 1958 (Cth) 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: Item 12 of Part A of Form 956 read "The person receiving immigration assistance" and gave options such as "visa applicant" and "sponsor or sponsor applicant". Might the terminology 'visa applicant' include a person who was seeking the revocation under s 501CA(4) of the Migration Act 1958 (Cth) of a visa cancellation?

Question 3: Section 494D(1) of the Migration Act 1958 (Cth) read 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". Can it be said that, "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"?

Question 4: Is the following question under item 17 of Form 956 answered by a migration agent, instead of a client: "Have you been authorised to receive written communications on behalf of your client(s) in relation to the matter indicated in Question 15"?

Question 5: If the answer to Question 4 is 'yes', is a positive answer to item 17 a 'written notice' under s 494D(1)?

Question 6: Item 15 to Form 956 asked as follows: "Are you providing assistance with an application process, a cancellation process or specific matter? (tick one only)". The options were "Application process", "Cancellation process" and "Specific matter". The only box ticked was "Application process" and the type of application was written as "all immigration matters". Did the extent of the authority include cancellation or cancellation revocation processes?

Question 7: Did the option "Cancellation process" in form 956 contemplate not only cancellation itself, but also revocation of cancellation?

Question 8: If a person responds to the field "Type of application" within item 15 of Form 956 with "all immigration matters", is that authorisation ineffective in that all such matters have to be listed in the form?

Question 9: Can it be said that, for the purpose of r 2.55(3)(d) of the Migration Regulations 1994 (Cth), "an address which was given as a place where particular documents could be served (those relating to migration applications) could be the last address known for the purposes of the regulation for serving different documents", such as of regulation for serving documents concerning a cancellation revocation request?

Question 10: Is a migration agent's email address not an email address for the purposes of reg 2.55(3)(d)?

Question 11: If the Minister's notice about the non-revocation decision made under s 501CA(4) was invalid, did this have the effect that the deadline of 9 days for lodging a Tribunal application under s 501(6B) did not apply and that there was no deadline for lodging a Tribunal application at all?

The FCA answered those questions as follows: