Case: McRae v Coulton (1986) 7 NSWLR 644
Outcome: applied
Honour could see no reason for construing s 494D as preventing the adoption by the Minister of a form of internet application which included provision for the notification of the name of an authorised recipient in the same form. His Honour rejected the submission that s 494D must be read as requiring a written signature from the visa applicant appointing the authorised recipient. He observed that it may often be administratively appropriate for a written and signed notice to be required by the Department, before being satisfied as to a due appointment. However, he could can find nothing in the terms or objects of s 494D which confined the Minister as to the manner in which he was to be satisfied that notice of an authorised recipient has been duly given. Nor could he find in s 494D any intention to exclude the normal presumption that Parliament intends to allow a person to act for the purposes of a statutory provision through an agent (cf. Christie v Permewan, Wright &amp; Co Ltd [1904] HCA 35 ; (1904) 1 CLR 693 at 700, McRae v Coulton (1986) 7 NSWLR 644 at 663, and AB v LB (Mental Health Patient) [1980] 1 WLR 116 at 121, cited in Bennion FAR, Statutory Interpretation &#8212; A Code (2nd ed, Butterworths, 1992), at 799 800). Considerations of convenience all pointed towards the section being intended to allow this. There is no requirement in s 494D (or elsewhere) for the notice appointing the authorised recipient to be in any particular form; any notice in writing meeting the elements of subs 494D(1) will suffice. There is no requirement for the notice under subs 494D(1) to be signed at all but even if there was a requirement that it be signed by the appellant, there would still be room for application of the presumption that the appellant could meet that requirement through an agent: McRae at 663D. In addition, there are a number of factual findings in the way of the appellant succeeding on this ground. His Honour found that the interactive form was completed by someone (unknown) at Tan &amp; Tan with the full authority of the appellant: [17] and [40] of his reasons. His Honour also found that it was not a matter of concern for the appellant to know which person within the firm he dealt with or who within the firm was registered as a migration agent: [19] and [20] of his reasons. His Honour also found that the contract between the appellant and the firm envisaged it making electronic visa applications on his behalf and sending/receiving on his behalf communications with the Department: [22] of his reasons; and finally his Honour's rejection of the appellant's submissions that Mr Yat Tan (a registered migration agent) had not appropriately supervised and taken responsibility for his matter: his Honour's reasons at [27] and [28]. Ground 2 The learned Federal Magistrate made an error of law in failing to find that after Mr Yat Tan's name was stated in the electronic application lodged at the beginning Mr Yat Tan abandoned his role as migration agent where there was no evidence at all of this role in the furthering of the visa application from any of the records or the appellant's affidavit evidence before the Court. His Honour thus wrongly failed to hold that DIAC was on constructive notice that Mr Yat Tan was not the migration agent or the authorised recipient acting for the appellant. This ground seeks to re-agitate his Honour's findings under ground 4 below. It is not suggested that his Honour's findings at [48] and [49] of his reasons were not open on the evidence before him. That being so, his Honour's conclusion at [50] his refusal to accept that at any time between the lodging of the visa application with its notice of authorised recipient, and the emailing of the delegate's decision to Mr Yat Tan, there was anything which occurred which could or should have caused the Department of Immigration to doubt that currency of the appointment of the notified authorised recipient should not be disturbed. Ground 3 The learned Federal Magistrate made an error of law in misconstruing s 280 in relation to the difference between the right of a migration agent and a legal practitioner who is not a migration agent. His Honour erred by (i) referring to legal services in [49] where there was only migration services performed and no legal services performed (ii) failed to understand that there can not be a contract of engagement for migration network between an applicant and an entity as only a person can be a migration agent and an entity can not be licensed as migration agent. This misunderstanding led to his Honour to find that Mr Yat Tan did not fail to perform his duties as a migration agent. This ground has no foundation. His Honour did not misconstrue s 280 of the Act in the ways contended; rather, the appellant and his legal representatives have totally misconstrued his Honour's reasoning. His Honour showed no error as to his understanding of the role of a registered migration agent. Moreover, on his Honour's findings of fact: (a) the authorised recipient in this case, Mr Yat Tan, was a registered migration agent (although there is no requirement in the Act that an 'authorised recipient' must be a registered migration agent); (b) his Honour was not satisfied that Mr Yat Tan 'did not take responsibility under the Migration Act and within the firm of Tan &amp; Tan for [the appellant's] migration work' [27] and [56]; (c) nor was his Honour satisfied that Mr Yat Tan was 'in any way derelict in his responsibilities as a registered migration agent under the relevant provisions of the Migration Act , in particular s.280(1) ' [28]; or that he was deficient in his 'supervision and responsibility' [29]. (Emphasis added) His Honour was not denying the role of a 'registered migration agent'. To the extent that he referred to the agreement between the appellant and the firm, his Honour was doing so only to examine whether the authority given by the appellant to partners and employees of Tan &amp; Tan was wide enough to give the notice of the kind contemplated by subs 494D(1). He was not suggesting that 'the firm', as opposed to Mr Yat Tan, had the responsibilities of a registered migration agent. Ground 4 The learned Federal Magistrate made an error of law by finding at [63] that he is not satisfied on the evidence before him that Tan &amp; Tan did fail to communicate the delegate's decision speedily, and in the manner that they claim in their correspondence with Mr Jalagam. This ground also has no foundation. The finding complained of was one of fact, well open to his Honour and no appellable error is shown.