Case: Le v Minister for Immigration and Citizenship [2007] FCAFC 20
Outcome: discussed
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that 'the comments by the Full Court in Le to the effect that an authorisation under s 494D(1) continues in force until withdrawn, does not say anything about the authorisation applying to matters outside the scope of the visa application'; in support of that proposition, the Minister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.' 44 The Minister also observed that the Full Court in Le at [31], accepted that a breach of s 494D(1) may not constitute a jurisdictional error in a case where the principal received actual notice. It was asserted that in the present case that 'the principal did receive actual notice and the Minister relies upon his submissions to the effect that there has been no jurisdictional error in those circumstances'. 45 In reply the applicant submitted that the Full Court in Le made it clear that s 494D authorisation operates until it is varied or withdrawn and that the Minister's contention that the authorisation in this case did not extend beyond the grant of the visa must be rejected. In support of that proposition the applicant made reference to Le at [24] where the Court observed: 'Nevertheless, an unequivocal requirement of s 494D(1) is that the Minister must give a document to the Authorised Recipient instead of to an applicant. Another unequivocal effect of s 494D(2) is that, by giving a document to the Authorised Recipient, the Minister is taken to have given the document to the applicant.' The applicant further submitted that the 'change of address form in Le (which notified the Minister of an applicant's change of address for correspondence) was not construed as revoking or varying the authorisation. 46 In regards to the Minister's reliance on Le in support of the argument that where actual notice has been received no jurisdictional error arises, the applicant submitted in reply that 'the comment by the Court in Le at [31] that a question may arise as to whether there is jurisdictional error when actual service has been effected is clearly obiter dicta , and does no more than pose the question without suggesting an answer'. The notice of intention to cancel was said to found the jurisdiction to make the decision, and that a failure to strictly meet all the requirements of the Act concerning service of it will be fatal to the jurisdiction which depends upon it. 47 In my opinion, the Minister is entitled to succeed, in the context of the circumstances of this case, essentially in line with his submissions of his case which I have outlined or reproduced. Those submissions seem to me to reflect the correct operation of the legislation presently in force as well as to produce an outcome that gives expression to the prevailing procedural requirements for effective notice of cancellation of visas, and, in particular, business or business skills visas. 48 I have difficulty with the applicant's characterisation of her case in the present litigation as one involving a jurisdictional fact. The situation propounded by the applicant seems to me more strictly to be approached as that of fulfilment or otherwise of statutory requirements for cancellation of a business visa. The issue arising for determination is whether in the events which happened, being events not at least relevantly in dispute, the Minister was required to give the subject notice of intention to cancel the applicant's business skills visa to Ms Tang at the address appearing in the applicant's original Form 956 bearing date 15 October 2001 and headed 'Authorisation of person to act and receive communication', being RM 703, No. 9, Nan-King E. RD., SEC 3 , Taipei City, Taiwan R.O.C. Upon that footing the applicant postulated the conclusion that the Minister's sending by post on 13 April 2005 of that notice of intention to cancel addressed to the applicant (of course as the visa holder) at No. 3 Allenby Crescent Strathfield NSW 2135 was invalid and ineffective to cancel the applicant's visa. There was no suggestion raised by the applicant that she did not receive in due course that notice of cancellation bearing date 13 April 2005, her only case being that the notice was invalidated by not having been sent to Ms Tang at her Taiwan address, that address also having been of course that which was specified in the applicant's Form 47BU completed and sent to the Department earlier on 15 October 2001 in the context of the applicant's original visa application. 49 In my opinion, the Minister's response to the applicant's case, as framed in outline in [33] above, is soundly based on the operation of the Act, and in particular on the prescription concerning the giving of notice of a ' proposed cancellation ' of a visa in conformity with the stipulations relevantly of the Act, and ss 134 and 135 and also of ss 494A and 494D thereof in particular. I can see no substance in as well as no sensible basis for the applicant's case. The applicant's details regarding correspondence contained in the initial Form 956 bearing date 15 October 2001 was plainly and unequivocally overtaken and superseded by the applicant's subsequent Form 1010 and Form 956, bearing dates 7 July 2004 and 5 May 2005 respectively, and understandably so given the transpiration of events which had subsequently taken place, including the applicant's subsequent presence at least for some time in Australia. In expressing the foregoing reasons I have reached the same conclusion as that of Deputy President Professor Walker below. Whilst my reasoning is more expansive I think that is because of the additional arguments which counsel for the applicant placed before the Court. I would agree moreover with Professor Walker's approach to reasoning as well, geared as it was in substance as well as appropriately to the relevant events which happened. My approach to the material and circumstances otherwise placed before the Court, requires therefore that the applicant's present application transferred from the Federal Magistrates Court be dismissed. 50 It follows that the present application must be dismissed with the usual consequence as to the costs thereof, inclusive of the proceedings to the extent initially commenced in the Federal Magistrates Court.