Federal Court. Did s 501G(3) satisfy the phrase in s 494A(1)(b)(ii) of a provision that "does not state that the document must be given ... by a method prescribed for the purposes of giving documents to a person in immigration detention”? If s 494A(1) applied, did ss 494B(5)(b) and (d), 494C(1) and (5) and s 494D(1) apply? Did the word “giving” in r 5.02 imply a requirement to hand a written notice of the delegate’s non-revocation decision personally to either the applicant or his solicitor? If not and the written notice occurs by email, must it be actually received to satisfy r 5.02?
Section 500(6B) of the Migration Act 1958 required applications for review of decisions made under s 501CA(4) to be made within nine days of the applicant being given notice of the delegate’s decision
The relevant sequence of events is as follows:
1. On 22 December 2021, both the applicant and his solicitor signed a form titled “Appointment of a registered migration agent, legal practitioner or exempt person” with the following features, according to the Federal Court (FCA):
"(a) in “Part A – New Appointment Registered migration agent/legal practitioner/exempt person’s details”:
(i) in answer to question 7 “Do you agree to the Department communicating with you by fax, email or other electronic means”, the “Yes” box was ticked and the email address of the applicant’s solicitor was provided in handwriting;
(ii) in answer to question 15, “Are you providing assistance with an application process, a cancellation process or specific matter? (tick one only)”, the “Specific matter” box was ticked and the words “notice of visa cancellation under section 501(3A) of the Migration Act 1958” was handwritten;
(iii) in answer to question 17, “Have you been authorised to receive written communication on behalf of your client(s) in relation to the matter indicated in Question 15”, the “Yes” box was ticked;
(b) Part B dealing with ending such an appointment, is blank;
(c) In “Part C – Declarations”:
(i) under the heading “Declaration by registered migration agent/legal practitioner/exempt person”, at paragraph 22, the first of two boxes is ticked, with the text for that box being “Appointment – I declare that I have been appointed by the client named in Part A of this form as a registered migration agent/legal practitioner/exempt person and that I will act on the client’s behalf as permitted by law”;
(ii) under the heading “Declaration by client”, at paragraph 23, the first of two boxes is ticked, with the text for that box being “Appointment – I declare that I have appointed the registered migration agent/legal practitioner/exempt person named in Part A of this form to provide assistance with matters as indicated on this form”.
2. On 29 September 2022: a delegate decided under s 501CA of the Migration Act not to revoke the mandatory cancellation of the applicant’s visa; notice of the non-revocation was emailed to the applicant's solicitor.
3. On 1 November 2022, the applicant applied to the AAT for merits review of the delegate’s decision.
4. The Tribunal found that the review application had not been lodged within the required nine day time limit, therefore finding that it had no jurisdiction to review the delegate's decision.
Section 494A(1) of the Migration Act provided (emphasis added):
If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Section 501G(1)(ba) and (c)-(e), provided that if a decision was made under s 501CA not to revoke a decision to cancel a visa, the Minister must give the former visa holder a written notice setting out the decision, the provision under which it was made, and the reasons for the decision. Section 501G(3) provided that a notice under s 501G(1) “must be given in the prescribed manner”. Section 5(1) defined “prescribed” as “prescribed by the regulations”.
Regulation 5.02 of the Migration Regulations 1994 (Cth) provided: "For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf."
Some of the questions to the FCA were as follows:
Question 1: If sending that email did not amount to giving notice as required, has the nine-day period for making an application for merits review never commenced to run?
Question 2: Does s 501G(3) satisfy the phrase in s 494A(1)(b)(ii) of a provision that "does not state that the document must be given ... by a method prescribed for the purposes of giving documents to a person in immigration detention”?
Question 3: If the answer to Question 2 is 'yes', does it follow that s 494A(1) applied?
Question 4: If the answer to Question 3 is 'yes', does it follow that each of s 494B(5)(b) and (d), s 494C(1) and (5), and s 494D(1) applies, rendering the 29 September 2022 email to the applicant’s solicitor an effective giving of written notice of the delegate’s non-revocation decision to the applicant?
Question 5: Does the word “giving” in r 5.02 imply a requirement to hand a written notice of the delegate’s non-revocation decision personally to either the applicant or his solicitor?
Question 6: If the answer to Question 5 is 'no' and the written notice occurs by sending an email, must the email be actually received in order to satisfy the term "giving" in r 5.02?
The FCA answered those questions as follows: