Case: Saleem v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 234
Outcome: referred to
On the footing essentially of those submissions in summary of the applicant, the applicant contended that neither the Minister, nor the Tribunal standing in the Minister's shoes, had jurisdiction to cancel 'a business visa' under s 134 of the Act, unless the requirements of s 134(9) have been complied with. Reference was made for comparison to Saleem v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 234 (Allsop J), which involved the exercise of the power given by s 109 of the Act to cancel a visa by reason of ' non-compliance by the holder of [the] visa ' with the obligation pursuant to s 101 of the Act to '... fill in his or her application form in such a way that: (a) all answers on it are answered; and (b) no incorrect answers are given' , and where the Minister had decided that '... there was non-compliance by the visa holder in the way described in the notice' within s 108 of the Act. 26 Reference was thereupon made by the applicant to the provisions of s 494D ( infra ) relating to the appointment of an authorised recipient. By reason of the legislative scheme, the applicant submitted that it was Ms Tang who was the authorised recipient and who was the person to whom the notice of intention to cancel her visa was required to be given, and further that the notice was required to be given to her at 'RM 703, No. 9, Nan-King E. Rd. SEC. 3 Taipei City Taiwan R.O.C', being of course the original address appearing on the initial Form 956 dated 15 October 2001, but at no stage had appropriate notice of intention to cancel been given to her by the Minister at that address. It was further asserted by the applicant in that context that Ms Tang 'was authorised under the 2001 notice to receive on behalf of the applicant any documents or notifications relating to the business visa application made in October 2001'. It was emphasised in that regard that '[i]f a visa holder has notified the Minister that... all documents [are] to be given to an authorised recipient... then the authorised recipient is the person who must be given them', and that 'actual service on the visa holder, without service on the authorised recipient, is not effective service because of the operation of s 494D '. 27 The applicant contended that '... the critical question is whether as at 13 April 2005 (being the date of the Department's notice of intention to cancel her visa), [Ms Lo had] withdrawn the authority to Ms Tang', being withdrawn in the sense that Ms Tang was no longer the applicant's authorised recipient. The Tribunal was said to have relied upon what the applicant wrote on her Departmental Form 1010 sent to the Department in July 2004, which it will be recalled made reference to the address No. 3 Allenby Crescent Strathfield NSW 2135. The applicant pointed out, in any event, that what was written on the Form 1010 signed by her on 7 July 2004 was improperly obtained by the Minister's Department, and 'should not be relied upon as evidence of the applicant's intentions', because that Form 1010 was sent to her at Number 9 Rodd Road Five Dock NSW, yet at that time the applicant was in Taiwan, and that therefore the form should have been sent to Ms Tang as the applicant's authorised recipient. I should interpolate to further mention in that context that on 19 July 2004, what appears to have been the Australian company Saint Island (Australia) Pty Ltd was caused to be incorporated by the applicant and Hui-Sheng Lee, each having the address in the State of New South Wales of Australia of No. 3 Allenby Crescent Strathfield, NSW, as recorded by the Australian Securities and Investments Commission. It was thus the case of the applicant that the service of that Form 1010 'plainly did not comply with the requirements of s 494D(1) ', and that therefore the Minister 'should not be permitted to rely upon information it obtained from the applicant in a manner not permitted by the statute to support the legality of actions subsequently taken by it against the applicant'. Moreover the situation was said by the applicant to be 'analogous to the [Minister] being permitted to take advantage of material obtained by it in breach of the requirements of procedural fairness'.