How Should the Minister Give a Person a Document in Relation to Migration Matter?
Section 494A of the Migration Act 1958 provides that if the Minister is required to give a person a document and neither the Migration Act nor the Migration Regulations specify the method by which the Minister is required to give that document, the Minister can give the document by any method he or she considers appropriate.
What If a Document is About Cancellation of Visa?
The Minister must send the document in accordance with regulation 2.55 if the documents are about:
(a) the proposed cancellation of a visa;
(b) the cancellation of a visa; or
(c) the revocation of a cancellation.
Regulation 2.55 provides that the document must be sent to a “person’s last residential address, business address, or post box address known to the Minister”. According to case laws:
(a) the “last residential address” is not confined to addresses “known” only after the person’s last entry to Australia;
(b) the “residential address” must be an address where the applicant actually resided.
If you have notified the Minister of an authorised recipient, the Minister must send the document to the authorized recipient. Once the document is sent to the authorized recipient, the person is taken to have received the document.
If a document is sent by the Minister by one of the methods provided in section 494B, the deeming provisions in section 494C will apply.
What are the Methods Provided in Section 494B?
Minor
If a person is a minor, the Minister may dispatch or transmit a document to an individual:
(a) who is at least 18 years of age; and
(b) who the Minister reasonable believes:
(i) has day-to-day care and responsibility of the minor; or
(ii) works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
However, this does not apply in giving notifications in the case of combined visa application.
By Hand
Handing the document to the recipient by the Minister.
By hand to “another person” at last residential or business address
If “another person” is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents, the “another person” appears to live or work there and to be at least 16 years old.
By prepaid post or other prepaid means
The Minister date the document and dispatch it within 3 working days of the date of the document and by prepaid post or by other prepaid means to the last address for service or the last residential or business address. The addresses must be provided by the recipient to the Minister for the purposes of receiving documents.
In this regard, it is pertinent to note that prepaid post includes ordinary post as decided in the case of Minister for Immigration and Citizenship v SZKPQ [2008] FCAFC 21.
If the recipient is a minor, the document will be dispatch to the last address for a carer of the minor that is known by the Minister. However, there is nothing to prevent the Minister giving the minor a copy of the document.
By Fax, Email, or other electronic means
The Minister may transmit the documents to the last fax number, email address or other electronic address provided to the Minister for the purposes of receiving the documents. If the recipient is a minor, it will be transmitting to the carer of the minor that is known by the Minister. There is nothing to prevent the Minister giving the minor a copy of the document. In Sainju v Minister for Immigration and Citizenship [2010] FCA 461, it was decided that “transmitting the document” relate to the “sending” of the document and do not imply that actual communication must have occurred
At the end of the day . . .
In any event, the Minister is entitled to determine which method to use in any given case. It is not a wise attempt to give incorrect address. In the case of Cheng v Minister for Immigration and Citizenship [2011] FCA 1290, it was decided that it did not matter that the address provided to the Minister was actually a wrong address, as long as the letter was correctly sent to the last address provided to the Minister.
Getting Assistance
You may contact us by calling (02)-7200 2700 or email our receptionist to book in a time at info@ahclawyers.com if you have any question pertaining to visa application.