Case: VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311 ; (2003) 133 FCR 570
Outcome: cited
The further issue next addressed by the Minister was whether in any event, a jurisdictional error would arise from a breach of s 494D(1) by not giving any requisite notice to Ms Tang in Taiwan. Nevertheless upon the hypothesis of breach of s 494D(1) on the Minister's part, the Minister made the following observations and submissions: (i) it was not in dispute that the Tribunal, like the Minister, has no power to affirm the cancellation of the holder of a business skills visa unless a written notice under s 135 of the Act has been given to that holder within the three year period prescribed by s 134(9) of the Act; in the present case, there was no dispute that the applicant had received the relevant notice of cancellation within the prescribed period of time; the issue arising at the instance of the applicant was whether s 134(9) should be construed as being subject not only to the giving of the statutory notice to the applicant but also to the service thereof upon her purportedly authorised recipient; (ii) subsection 134(9) does not in any event require the notice to be given to an authorised recipient; in that regard, the subsection refers only to '... notice... given to its holder [of the visa] ' ; (iii) section 135 neither requires that the notice be given to an authorised recipient, nor requires that the notice be given by any one of the methods specified in s 494B of the Act (which I have earlier summarised), unlike incidentally many other provisions of the Act; in those circumstances, the Minister is empowered to use any of the methods specified in s 494B but is not required to use those methods; in that regard s 494A stipulates relevantly that '... 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) '; (iv) the issue involved therefore becomes whether the enactment of s 494D in 2001 has the effect of so qualifying s 134(9) such that a notice given to a visa holder within time is no longer sufficient to crystallise the operation of the cancellation power; (v) the Minister submitted that s 494D 'imposed a duty upon the Minister to provide correspondence to an authorised recipient', but submitted that it did not follow that when that duty is breached in circumstances where nevertheless the principal received the relevant notice, that such notice is ineffective until the authorised recipient is also given the notice; (vi) moreover the Court decided in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221 at [13] - [20] (Mansfield J) that deemed notification to a principal is effective, even if an authorised recipient is not given a document contrary to a provision substantially equivalent to s 494D ; (vii) nothing in s 494D has the effect that the actual giving of a document to a principal is deemed not to have occurred if the authorised recipient is not provided with a copy; so much was said to have been held in the course of the analysis of the Full Federal Court (Gray, Whitlam and Mansfield JJ) in VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311 ; (2003) 133 FCR 570 at [6] , [9] and [27]; and (viii) in the present case there was no doubt that the applicant Ms Lo received actual notice from the Minister, as well as deemed notice irrespective of notification to any authorised recipient; in those circumstances the Minister submitted that there was no failure on the Minister's part to give the applicant a notice within the time prescribed by ss 134(9) and 135 of the Act.