Case: Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221
Outcome: discussed
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. 39 As to the reasons for judgment in Makhu , I would observe that the applicant there involved sought to make out a case to the effect that he was not given the opportunity that would flow from the Tribunal's compliance with the invitation stipulated by s 359A of the Act. That section of the Act requires the Tribunal to 'give to the applicant in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that [it] considers would be the reason, or part of the reason, for affirming the decision that is under review' . Makhu concerned an applicant who had nominated a migration agent, in accordance with s 379G(1) of the Act, as the authorised recipient of communications under the Act. The Tribunal subsequently sent the applicant a letter for the purposes of s 359A of the Act, thereby highlighting certain deficiencies in his application and inviting him to address them. However, the letter was not addressed to the authorised recipient (the migration agent) at the migration agent's address, but rather it was addressed to the applicant care of the migration agent at the migration agent's address and it was copied to the applicant at his residential address. The applicant deposed as to not having received that letter. 40 Mansfield J observed at [18] to [19] in Makhu as follows: '18. I do not accept that by nomination of his migration agent as an authorised recipient, under s 379G of the Act, the notice under s 359A must only be given to the applicant by being addressed to and sent to the migration agent. Section 379G(2) provides: (2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.' 19. As noted, the letter of 6 February 2003 was addressed to the applicant care of the migration agent at the migration agent's address and to the applicant at his residential address. Section 379G(1) applies where the Tribunal has given to the authorised recipient, instead of the applicant, the document. Section 379G(2) provides, firstly, that giving the document to the authorised recipient means that the Tribunal is taken to have given the document to the applicant. However, it also expressly preserves the right of the Tribunal to give to the applicant a copy of the document. That it did.' 41 The applicant submitted that the reasoning of Mansfield J assisted her case because 'his Honour concludes that personal service is permitted by s 359G(2) where there has been purported service on the authorised recipient under s 359G(1) as well, (and, by implication, not otherwise)'. The applicant submitted, in the alternative, that if his Honour's decision is construed as standing for the 'broader proposition that deemed notification to a principal is effective even if an authorised recipient is not given a copy, then the decision is distinguishable because the service of the s 359A notice in that case was a procedural requirement in the course of the exercise of jurisdiction'. It was contended therefore that in the present situation, the service of the notice of intention to cancel is necessary relevantly to found jurisdiction. 43 The parties provided post-hearing submissions moreover concerning the recent Full Federal Court authority of Le v Minister for Immigration and Citizenship [2007] FCAFC 20 (Emmett, Allsop and Middleton JJ). Whilst the Minister submitted that the reasoning of the Full Court in Le is not consistent with the reasoning of Mansfield J in Makhu , he made the qualification that this is not to 'concede that Le is correctly decided or, to concede the issue'. The Minister contended that unlike the situation in Makhu , Le concerned a situation where there had been no grant of the visa and the correspondence in issue was held to be covered by an authorisation of a person under s 494D(1) in relation to the visa application that was still pending in that case. The Minister further submitted that 'the comments by the Full Court in Le to the effect that an authorisation under s 494D(1) continues in force until withdrawn, does not say anything about the authorisation applying to matters outside the scope of the visa application'; in support of that proposition, the Minister relied on their Honour's reasoning at [29], which is as follows: 'It is incumbent upon an applicant to remain in communication with a person who is authorised to receive documents under s 494D(1) until the applicant withdraws the notice given under that provision or varies it pursuant to s 494 (3). It is not for the Minister to ascertain whether or not an Authorised Recipient has died or is inactive. So long as the Minister is able to give documents to that Authorised Recipient by a method that the Minister considers appropriate, the applicant will be taken to have received the documents. Furthermore, the Minister must give a document to the Authorised Recipient.'