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Lo and Minister for Immigration and Multicultural Affairs [2006] AATA 218 (9 March 2006)

Last Updated: 14 March 2006

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 218

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2005/896

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Mei Hui Lo

Applicant

And

Minister for Immigration and Multicultural Affairs

Respondent

INTERLOCUTORY DECISION

Tribunal

Professor GD Walker, Deputy President

Date 9 March 2006
Place Sydney

Decision

The notice of intention to cancel the applicant’s business skills visa is valid.

..............................................
Professor GD Walker
Deputy President

CATCHWORDS

IMMIGRATION – cancellation of business skills visa – cancellation of secondary family unit member visa – whether the notice of cancellation was served in accordance with the requirements of the Migration Act 1958 – applicant indicated on form 1010 24-month survey form that department was to communicate with her – applicant did not take opportunity to complete migration agent section on form 1010 – completion of form 956 evidence that at the relevant time the applicant did not have a migration agent.

Migration Act 1958 ss 134(7), 135, 494A, 494B, 494C, 494D

Federal Commissioner of Taxation v Comber (1986) 64 ALR 451

Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221

Saleem v Migration Review Tribunal [2004] FCA 234

Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685

VEAN of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570

REASONS FOR DECISION

9 March 2006	Professor GD Walker, Deputy President
Summary

1. The applicant, Ms Mei Hui Lo, aged 52, is a citizen of Taiwan, Republic of China. On 26 April 2002, she was granted a subclass 127 business skills visa. Ms Lo’s visa also included her husband, Hui Sheng Lee, and their two children, Chi-Lung Lee and Yi Hsuan Lee.
2. A delegate of the respondent, the Minister for Immigration and Multicultural Affairs, decided to cancel Ms Lo’s business visa on the grounds that she does not have a substantial ownership interest in an eligible business in Australia, she does not utilise her skills in participating in that business, and does not intend to continue with the business in the future. The delegate also cancelled the secondary visa of her son. Those are the decisions to be reviewed by the tribunal.

Issue

3. The preliminary issue for the tribunal to consider in this matter is whether Ms Lo was properly notified of the delegate for the Minister’s intention to cancel her visa (and as a consequence, the visa of Mr Lee) in accordance with s 134(9) and s 135 of the Migration Act 1958 ("the Act") by forwarding it to her last known address as provided by the applicant on her 24-month business survey in compliance with s 494B of the Act.

Background

4. The applicant, Ms Lo, who was born in Taiwan, Republic of China, on 11 April 1953 and is aged 52 and Mr Hui Sheng Lee, have two adult children: a son, Chi Lung Lee born 5 March 1980, now aged almost 26, and a daughter, Yi Hsuan Lee, born 22 January 1984, now aged 22. On 15 October 2001, Ms Lo applied for a subclass 127 business skills (migrant) visa to migrate to Australia (T4 p42). At the time of lodging her application, she also filed a Form 956 – Authorisation of person to act and receive communication in which she authorised Ms Fu-Hua (Flora) Tang of RM 703, No. 9, Nan-King E. Rd., Sec. 3, Taipei City, Taiwan, R.O.C. as the person authorised to receive any communications, documents or notifications relating to her application (T p73). This document was dated 15 October 2001 and signed by the applicant and Ms Tang.
5. On 26 April 2002, the Deputy Director (Australian Visa Services), Australian Commerce and Industry Office (T5 p74), notified the applicant, care of Rm 703, No. 9, Sec. 3, Nan-King E. Rd., Taiwan, that her application for permanent entry into Australia had been approved (T5 p74).
6. On 12 May 2002, Ms Lo entered Australia (T p101). On 3 July 2004, Ms Lo was requested to complete a "Survey of Business Skills Migrant – 24 Months (Form 1010)" (T p101). By letter dated 5 August 2004 and received by the department on 23 August 2004 (T6 p75), Ms Lo returned the survey to the department. At question 5 of the survey "Residential address in Australia", Ms Lo completed "3, Allenby Crescent, Strathfield, NSW, 2135". At question 71 "All written communications about Business Skills monitoring should be sent to:", she crossed the box marked "Myself - All written communications will be sent to the address for communications that you have provided in this form" (T p83). The only address provided on the form was that at question 5. The applicant did not complete the sections Part I – Authorised recipient details, Part J – Authorised recipient consent, or Part K - Migration agent details or Part L – Migrant agent consent. At question 78, the applicant declared the information supplied to be "complete, correct and up-to-date in every detail" (T p84).
7. On 13 April 2005, a delegate of the Business Skills section of the then Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) wrote to Ms Lo at 3 Allenby Crescent, Strathfield, NSW 2135, informing her that the department intended to cancel her business skills (migrant) visa under s 134 of the Act because there was no evidence that she had a substantial ownership interest in an eligible business in Australia, she utilised her skills in the day-to-day management at a senior level of that business, or that she intended to continue holding a substantial interest in the eligible business and utilising her skills in the management of that business. The delegate also informed her that the secondary visas of her family unit members would also be automatically cancelled if her visa were cancelled. Ms Lo was invited to respond and provide documentary evidence including, inter alia, evidence of funds in Australia, financial statements, taxation records, business plans, by 20 May 2005 (T8 p102). By letter of the same date, the department also notified Mr Hui Sheng Lee of its intention to cancel his secondary visa and those of their two children (T p10). The letters were posted by registered post on 14 April 2005 (Exhibit R).
8. On 5 May 2005, Ms Lo completed a Form 956 – Appointment of a migration agent or exempted agent, which was received by the Perth office of the department on 20 May 2005 (T9 p107). At Part F – Migration agent or exempted agent details, she appointed Mr William Luong, Streamline Migration Services, Suite 1603, Level 16, 87-89 Liverpool Street, Sydney, NSW, 2000 as her migration agent in Australia (T p109).
9. By letter dated 13 May 2005 (T10 p111), Anthony Pun, Chairman, Chinese Australian Union Inc, made submissions to the business manager NSW, residence and business entry, Sydney, on behalf of the applicant (T pp111-115). On 17 May 2005, William Luong of Streamline Migration Services also made submissions to the business skills section of the department in response to the notice of intention sent to Ms Lo (T11 p117).
10. On 21 June 2005, a delegate of the respondent decided to cancel Ms Lo’s business skills visa on the grounds that she had not obtained a substantial interest in an eligible business in Australia, she is not utilising her skills in participating at a senior level in the day-to-day management of the business, and she did not intend to continue to hold a substantial interest in the business (T2 p7). The delegate also noted that the applicant had been in Australia for less than four months in the last years, and had not bought any real estate or fixed assets in Australia and that she had not provided any evidence that the turnover of her company, Saint Island (Australia) Pty Ltd met any of the guidelines for genuine effort (T p12). On this basis, the delegate was not satisfied that she had a substantial ownership interest. Having considered all the evidence, the delegate exercised her discretionary powers and cancelled her visa. On the same day, the secondary visas of Mr Lee and their children were also cancelled (T2 p7). On 15 July 2005, Ms Lo and her son, Mr Chi-Lung Lee, both lodged applications for a review of the decision made against them.
11. At the time of lodging the applications, the solicitor for the applicants raised the issue of whether the notice was effectively served on Ms Lo in accordance with s 134(9) and s 135 of the Migration Act 1958 and a decision was made by the tribunal to hold a preliminary hearing to deal with this point. At the preliminary hearing, the applicant was represented by Mr Brett Slater, solicitor, of Brett Slater Solicitors, and the respondent was represented by Ms Xuelin Teo, solicitor, Clayton Utz Solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the evidence tendered by the parties at the hearing.

Applicable Legislation

12. Section 134 of the Act empowers the Minister to cancel a business visa in certain circumstances. Departmental policy with regard to the cancellation of business visa is contained in s 134 of the Migration Series Instructions No 133 – Visa cancellation under subdivision G – cancellation of business visas.
13. Section 134 of the Act empowers the Minister to cancel a business visa in certain circumstances. The relevant provisions in Ms Lo’s case are as follows:

134. Cancellation of business visas

(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member's visa), by written notice given to its holder, if the Minister is satisfied that its holder:

(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
(c) does not intend to continue to:

(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day-to-day management of;

an eligible business in Australia.

(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:

(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and

(c) intends to continue to make such genuine efforts.

(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;

(c) research that the person has undertaken into the conduct of an eligible business in Australia;
(d) the period or periods during which the person has been present in Australia;
(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g) business activity that is, or has been, undertaken by the person;
(h) whether the person has failed to comply with a notice under section 137;
(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:
(i) the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii) the reasons why the person no longer holds the interest or participates in the management (as the case requires).

14. Section 134(9) of the Act provides:

(9) The Minister must not cancel a business visa under subsection (1),
(3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
(a) if its holder was in Australia when he or she was first granted a business visa--on the day on which that first visa was granted; or
(b) if its holder was not in Australia when he or she was first granted a business visa--on the day on which its holder first entered Australia after that first visa was granted.

15. Section 135 of the Act provides:

Representations concerning cancellation of business visa
(1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:
(a) stating that the Minister proposes to cancel the visa; and
(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:
(i) if the notice is given in Australia--28 days after the notice is given; or
(ii) if the notice is given outside Australia--70 days after the notice is given.
(2) The holder may make such representations to the Minister within the time specified in the notice.
(3) The Minister must give due consideration to any representations.
(4) If:
(a) the time specified in the notice ends after the end of the period referred to in subsection 134(9); and
(b) at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;
the Minister is not to proceed with the cancellation.
(5) If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.

16. Section 494A of the Migration Act provides:

494A. Giving documents by Minister where no requirement to do so by
section 494B method
If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
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).
Note: Under section 494D a person may give the Minister the name of an authorised recipient who is to receive documents on the person's behalf.

17. Relevantly, s 494B states:

Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.

18. Section 494C provides that if the Minister gives a document to a person by prepaid post or by other prepaid means, the person is taken to have received the document:

Dispatch by prepaid post or by other prepaid means
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or
(b) in any other case--21 days after the date of the document.

19. Section 494D provides:

Authorised recipient

(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3) The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person's authorised recipient.
(4) The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.

Whether notice was effective

20. Before the hearing of the preliminary issue, both the applicant and the respondent lodged written submissions on the issue. In his statement of facts and contentions, the applicant submitted that the notice of intention to cancel was not validly served because the applicant had nominated a person to receive notices on her behalf and the notice was not served on that person in accordance with s 494D of the Act. The applicant submits that Form 956 – Authorisation of person to act and receive communications appointing Fu-Hua (Flora) Tang of Taipei City, Taiwan R.O.C., signed by the applicant and dated 15 October 2001, nominated Ms Tang to receive notices on her behalf and that it therefore follows that as service was not in accordance with s 494D that it was therefore ineffective (T p73). The applicant also submitted that it was ineffective service because the provisions of s 494D provide for service on the applicant as well as on the authorised recipient and this did not occur. The applicant further submitted the authority was not withdrawn.
21. The respondent in her statement of facts and contentions submitted that the Minister can give notice of cancellation by any means she considers appropriate or by one of the methods set out in s 494B. If the applicant has an authorised recipient, notice must be given to that person instead of the applicant as prescribed in s 494D(1). The respondent further submitted:

In this case, the applicant authorised Ms Fu-Hua Tang to act and receive communications on her behalf on 15 October 2001. This authorisation, however, was withdrawn by the applicant for the purposes of s 494D(3) when she submitted the 24 month survey on 23 August 2004. As set out above, when the applicant submitted the survey she indicated that all written communications about business skills monitoring should be sent directly to her at her residential address. The applicant did not nominate Ms Fu-Hua Tang or any other migration agent or authorised recipient.

22. The tribunal notes that the covering letter enclosing the 24-month survey was signed "Mei-Hui Lo, President, Saint Island (Australia) Pty Ltd", and, as noted above, the sections Part I – Authorised recipient details, Part J – Authorised recipient consent and Part K – Migration agent details were not completed. The applicant did, however, complete Part H – Options for receiving written communications, "Question 71 – All written communications about Business Skills monitoring should be sent to:" where she ticked "yes" to "Myself – All written communications will be sent to the address for communications that you have provided in this form".
23. The applicant did not deny that she had received the notice of intention to cancel or that the method that the respondent used to serve it on her complied with s 494B, but submitted that it was invalid because it failed to comply with s 494D, which requires notices to be served on the authorised recipient (while also expressly permitting service on the applicant as well).
24. On 15 October 2001, the applicant completed a Form 956 authorising Ms Flora Tang, of Taipei City, Taiwan, to act on her behalf in relation to her application and to receive any communications or documents relating to it that would otherwise have been sent to the applicant (T p73). In her Form 1010 survey document completed on 7 July 2004 (T pp77-84), she authorised the department to communicate with her by facsimile or email and gave the appropriate fax number and email address. She also gave her residential address in Strathfield (T p77).
25. In Part H of the survey form, dealing with options for receiving written communications, she marked the box requesting that "All written communications about Business Skills monitoring should be sent to" and "Myself" (T p83). That part of question 71 indicated that "All written communications will be sent to the address for communications that you have provided in this form". She did not complete Part K, requesting details about the migration agent authorised to act on her behalf and receive communications about business skills monitoring (T p83).
26. On behalf of the applicant Mr Slater submitted that the applicant’s Form 1010 was ineffective to withdraw the nomination of her agent, Ms Tang, for several reasons. First, Form 1010 is inherently ambiguous, as it refers to written communications "about Business Skills monitoring". It does not mention the cancellation process, which is separate and distinct from the monitoring survey, which is not a necessary part of the cancellation process. Cancellation must be initiated through a notice of intention to cancel and ends with the cancellation decision (ss 134-135). There is no reference to monitoring or the business migrants survey in those provisions. A Form 1010 itself could not lead to cancellation and a visa holder might chose to complete it himself or herself, knowing that the appointment of an agent is recorded and still stands for important matters, such as a notice of intention to cancel. The applicant’s authorisation to the department in question 71 to communicate with her related only to the monitoring or information-gathering process and did not amount to a withdrawal of the authorisation in her Form 956.
27. Mr Slater referred to Saleem v Migration Review Tribunal [2004] FCA 234 in which Alsop J pointed out that cancellation of a visa, especially one granting permanent residence, is a serious matter and that the legislature had required some precision and specificity in the notice (at para 43). That case was not about service of notices, however. The defect in the notice was a failure to particularise the breaches of the relevant statutory provisions on which the respondent was relying.
28. The applicant also referred to Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685, in which Federal Magistrate Smith upheld a notice that had been served only on the migration agent nominated in the relevant form but which the agent said he did not receive in time to make a review application. The applicant had nominated the migration agent but had also ticked the "myself" box, as she wanted documents to be sent both to herself and to her authorised recipient. The question was whether her indication that she wished to receive documents herself rendered her authorisation of the agent as a recipient devoid of legal effect. That required his Honour "to construe her authorisation in light of the remainder of the visa application and the surrounding circumstances so as to identify the relevant intentions of the visa applicant". The learned magistrate concluded that the applicant did intend to authorise the agent to receive all written communications. That being so, the delegate was at least authorised, and perhaps required, by s 494D to give notice of the decision to the agent instead of to the applicant herself.
29. On behalf of the respondent Ms Teo submitted that the Form 956 appointing Ms Tang as an authorised person in terms referred only to documents "relating to my application", and ceased to have any effect after the subclass 127 visa was granted on 26 April 2002.
30. In the alternative, the Form 956 appointment was varied or withdrawn within the meaning of s 494D(3) by the Form 1010. A notice of intention to cancel a visa could not be treated as a separate process from Business Skills monitoring. Form 1010 is a survey for monitoring performance by holders of subclass 127 visas and can lead to cancellation, although the form does not expressly say so. There is no requirement in s 494D(3) that a Form 956 can be varied or withdrawn only by another Form 956. Indeed there is no requirement for any particular form at all, although the subsection may require that the variation or withdrawal be writing. In this case the Form 1010 had varied the address for service of documents.
31. In relation to Song (supra), Ms Teo pointed out that the court in that case had said that the authorisation had to be construed in the light of the remainder of the visa application and the surrounding circumstances so as to identify the relevant intentions of the visa applicant (at para 35). In this case it was relevant that the applicant could have informed the Minister in the Form 1010 that she had an agent. Question 71 in fact guides visa holders to Parts M and K, but the applicant did not take the opportunity offered. The fact that the original Form 956 was completed three years before the Form 1010 made it reasonable for the delegate to conclude that the applicant might no longer have an agent acting for her, especially as part of the purpose of the monitoring surveys is to help the respondent to keep track of business visa holders.
32. As Fisher J pointed out in Federal Commissioner of Taxation v Comber (1986) 64 ALR 451 at 458, deeming provisions are required by their nature to be construed strictly and only for the purpose for which they are resorted to. In this case the respondent is not relying on the deeming provisions of s 494C because it is not disputed that the applicant did in fact receive the notice in due time. That is a material point of difference from VEAN (VEAN of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570) and Song (supra), in which the evidence was that the appropriate addressee had either not received the notice, or had not received it until after the time for applying for a review had expired. The applicant sought to distinguish Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221 on the basis that it involved the interpretation of s 379G, not s 494D, but did not point to any material difference between the two provisions. The applicant also pointed out that in Makhu (supra) a copy of the notice was in fact sent to the agent (although the evidence did not show whether the agent had received it or not). That is correct, but in my view that distinction is less significant in a case such as the present in which it is not disputed that the applicant did in fact receive the notice in sufficient time to make an application for review.
33. More importantly, there is evidence pointing to the applicant’s intention when she completed the Form 1010. On 5 May 2005, ten months after completing the Form 1010, the applicant signed a second Form 956, this time appointing Streamline Migration Services in Sydney as her migration agent. Question 3 on that form (T p107) invited the applicant to tick one of three boxes. She was asked to indicate whether she had "appointed a migration agent or exempted agent", or "changed your migration agent or exempted agent", or "ended the appointment of your migration agent or exempted agent". She ticked "appointed a migration agent", not "changed your migration agent", thereby indicating her belief that she did not at that time have a migration agent authorised to receive communications on her behalf. That rather undermines her contention at the hearing that, while she did not use Ms Tang’s services in preparing the Form 1010, she still viewed her as her agent for other migration purposes.
34. In my view the Form 1010, when construed as a whole and in light of the surrounding circumstances, indicated an intention to receive departmental communications personally and not through Ms Tang in Taipei. I therefore conclude that the notice of intention to cancel the visa dated 13 April 2005 (T pp102-105) is valid.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed: .....................................................................................
Associate

Date/s of Hearing 16 February 2006
Date of Interlocutory Decision 9 March 2006
Solicitor for the Applicant Mr B Slater, Brett Slater Solicitors
Solicitor for the Respondent Ms Xuelin Teo, Clayton Utz Solicitors

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4.	The applicant, Ms Lo, who was born in Taiwan, Republic of China, on 11 April 1953 and is aged 52 and Mr Hui Sheng Lee, have two adult children: a son, Chi Lung Lee born 5 March 1980, now aged almost 26, and a daughter, Yi Hsuan Lee, born 22 January 1984, now aged 22. On 15 October 2001, Ms Lo applied for a subclass 127 business skills (migrant) visa to migrate to Australia (T4 p42). At the time of lodging her application, she also filed a Form 956 – Authorisation of person to act and receive communication in which she authorised Ms Fu-Hua (Flora) Tang of RM 703, No. 9, Nan-King E. Rd., Sec. 3, Taipei City, Taiwan, R.O.C. as the person authorised to receive any communications, documents or notifications relating to her application (T p73). This document was dated 15 October 2001 and signed by the applicant and Ms Tang.
5.	On 26 April 2002, the Deputy Director (Australian Visa Services), Australian Commerce and Industry Office (T5 p74), notified the applicant, care of Rm 703, No. 9, Sec. 3, Nan-King E. Rd., Taiwan, that her application for permanent entry into Australia had been approved (T5 p74).
6.	On 12 May 2002, Ms Lo entered Australia (T p101). On 3 July 2004, Ms Lo was requested to complete a "Survey of Business Skills Migrant – 24 Months (Form 1010)" (T p101). By letter dated 5 August 2004 and received by the department on 23 August 2004 (T6 p75), Ms Lo returned the survey to the department. At question 5 of the survey "Residential address in Australia", Ms Lo completed "3, Allenby Crescent, Strathfield, NSW, 2135". At question 71 "All written communications about Business Skills monitoring should be sent to:", she crossed the box marked "Myself - All written communications will be sent to the address for communications that you have provided in this form" (T p83). The only address provided on the form was that at question 5. The applicant did not complete the sections Part I – Authorised recipient details, Part J – Authorised recipient consent, or Part K - Migration agent details or Part L – Migrant agent consent. At question 78, the applicant declared the information supplied to be "complete, correct and up-to-date in every detail" (T p84).
7.	On 13 April 2005, a delegate of the Business Skills section of the then Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) wrote to Ms Lo at 3 Allenby Crescent, Strathfield, NSW 2135, informing her that the department intended to cancel her business skills (migrant) visa under s 134 of the Act because there was no evidence that she had a substantial ownership interest in an eligible business in Australia, she utilised her skills in the day-to-day management at a senior level of that business, or that she intended to continue holding a substantial interest in the eligible business and utilising her skills in the management of that business. The delegate also informed her that the secondary visas of her family unit members would also be automatically cancelled if her visa were cancelled. Ms Lo was invited to respond and provide documentary evidence including, inter alia, evidence of funds in Australia, financial statements, taxation records, business plans, by 20 May 2005 (T8 p102). By letter of the same date, the department also notified Mr Hui Sheng Lee of its intention to cancel his secondary visa and those of their two children (T p10). The letters were posted by registered post on 14 April 2005 (Exhibit R).
8.	On 5 May 2005, Ms Lo completed a Form 956 – Appointment of a migration agent or exempted agent, which was received by the Perth office of the department on 20 May 2005 (T9 p107). At Part F – Migration agent or exempted agent details, she appointed Mr William Luong, Streamline Migration Services, Suite 1603, Level 16, 87-89 Liverpool Street, Sydney, NSW, 2000 as her migration agent in Australia (T p109).
9.	By letter dated 13 May 2005 (T10 p111), Anthony Pun, Chairman, Chinese Australian Union Inc, made submissions to the business manager NSW, residence and business entry, Sydney, on behalf of the applicant (T pp111-115). On 17 May 2005, William Luong of Streamline Migration Services also made submissions to the business skills section of the department in response to the notice of intention sent to Ms Lo (T11 p117).
10.	On 21 June 2005, a delegate of the respondent decided to cancel Ms Lo’s business skills visa on the grounds that she had not obtained a substantial interest in an eligible business in Australia, she is not utilising her skills in participating at a senior level in the day-to-day management of the business, and she did not intend to continue to hold a substantial interest in the business (T2 p7). The delegate also noted that the applicant had been in Australia for less than four months in the last years, and had not bought any real estate or fixed assets in Australia and that she had not provided any evidence that the turnover of her company, Saint Island (Australia) Pty Ltd met any of the guidelines for genuine effort (T p12). On this basis, the delegate was not satisfied that she had a substantial ownership interest. Having considered all the evidence, the delegate exercised her discretionary powers and cancelled her visa. On the same day, the secondary visas of Mr Lee and their children were also cancelled (T2 p7). On 15 July 2005, Ms Lo and her son, Mr Chi-Lung Lee, both lodged applications for a review of the decision made against them.
11.	At the time of lodging the applications, the solicitor for the applicants raised the issue of whether the notice was effectively served on Ms Lo in accordance with s 134(9) and s 135 of the Migration Act 1958 and a decision was made by the tribunal to hold a preliminary hearing to deal with this point. At the preliminary hearing, the applicant was represented by Mr Brett Slater, solicitor, of Brett Slater Solicitors, and the respondent was represented by Ms Xuelin Teo, solicitor, Clayton Utz Solicitors. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the evidence tendered by the parties at the hearing.

12.	Section 134 of the Act empowers the Minister to cancel a business visa in certain circumstances. Departmental policy with regard to the cancellation of business visa is contained in s 134 of the Migration Series Instructions No 133 – Visa cancellation under subdivision G – cancellation of business visas.
13.	Section 134 of the Act empowers the Minister to cancel a business visa in certain circumstances. The relevant provisions in Ms Lo’s case are as follows:

22.	The tribunal notes that the covering letter enclosing the 24-month survey was signed "Mei-Hui Lo, President, Saint Island (Australia) Pty Ltd", and, as noted above, the sections Part I – Authorised recipient details, Part J – Authorised recipient consent and Part K – Migration agent details were not completed. The applicant did, however, complete Part H – Options for receiving written communications, "Question 71 – All written communications about Business Skills monitoring should be sent to:" where she ticked "yes" to "Myself – All written communications will be sent to the address for communications that you have provided in this form".
23.	The applicant did not deny that she had received the notice of intention to cancel or that the method that the respondent used to serve it on her complied with s 494B, but submitted that it was invalid because it failed to comply with s 494D, which requires notices to be served on the authorised recipient (while also expressly permitting service on the applicant as well).
24.	On 15 October 2001, the applicant completed a Form 956 authorising Ms Flora Tang, of Taipei City, Taiwan, to act on her behalf in relation to her application and to receive any communications or documents relating to it that would otherwise have been sent to the applicant (T p73). In her Form 1010 survey document completed on 7 July 2004 (T pp77-84), she authorised the department to communicate with her by facsimile or email and gave the appropriate fax number and email address. She also gave her residential address in Strathfield (T p77).
25.	In Part H of the survey form, dealing with options for receiving written communications, she marked the box requesting that "All written communications about Business Skills monitoring should be sent to" and "Myself" (T p83). That part of question 71 indicated that "All written communications will be sent to the address for communications that you have provided in this form". She did not complete Part K, requesting details about the migration agent authorised to act on her behalf and receive communications about business skills monitoring (T p83).
26.	On behalf of the applicant Mr Slater submitted that the applicant’s Form 1010 was ineffective to withdraw the nomination of her agent, Ms Tang, for several reasons. First, Form 1010 is inherently ambiguous, as it refers to written communications "about Business Skills monitoring". It does not mention the cancellation process, which is separate and distinct from the monitoring survey, which is not a necessary part of the cancellation process. Cancellation must be initiated through a notice of intention to cancel and ends with the cancellation decision (ss 134-135). There is no reference to monitoring or the business migrants survey in those provisions. A Form 1010 itself could not lead to cancellation and a visa holder might chose to complete it himself or herself, knowing that the appointment of an agent is recorded and still stands for important matters, such as a notice of intention to cancel. The applicant’s authorisation to the department in question 71 to communicate with her related only to the monitoring or information-gathering process and did not amount to a withdrawal of the authorisation in her Form 956.
27.	Mr Slater referred to Saleem v Migration Review Tribunal [2004] FCA 234 in which Alsop J pointed out that cancellation of a visa, especially one granting permanent residence, is a serious matter and that the legislature had required some precision and specificity in the notice (at para 43). That case was not about service of notices, however. The defect in the notice was a failure to particularise the breaches of the relevant statutory provisions on which the respondent was relying.
28.	The applicant also referred to Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685, in which Federal Magistrate Smith upheld a notice that had been served only on the migration agent nominated in the relevant form but which the agent said he did not receive in time to make a review application. The applicant had nominated the migration agent but had also ticked the "myself" box, as she wanted documents to be sent both to herself and to her authorised recipient. The question was whether her indication that she wished to receive documents herself rendered her authorisation of the agent as a recipient devoid of legal effect. That required his Honour "to construe her authorisation in light of the remainder of the visa application and the surrounding circumstances so as to identify the relevant intentions of the visa applicant". The learned magistrate concluded that the applicant did intend to authorise the agent to receive all written communications. That being so, the delegate was at least authorised, and perhaps required, by s 494D to give notice of the decision to the agent instead of to the applicant herself.
29.	On behalf of the respondent Ms Teo submitted that the Form 956 appointing Ms Tang as an authorised person in terms referred only to documents "relating to my application", and ceased to have any effect after the subclass 127 visa was granted on 26 April 2002.
30.	In the alternative, the Form 956 appointment was varied or withdrawn within the meaning of s 494D(3) by the Form 1010. A notice of intention to cancel a visa could not be treated as a separate process from Business Skills monitoring. Form 1010 is a survey for monitoring performance by holders of subclass 127 visas and can lead to cancellation, although the form does not expressly say so. There is no requirement in s 494D(3) that a Form 956 can be varied or withdrawn only by another Form 956. Indeed there is no requirement for any particular form at all, although the subsection may require that the variation or withdrawal be writing. In this case the Form 1010 had varied the address for service of documents.
31.	In relation to Song (supra), Ms Teo pointed out that the court in that case had said that the authorisation had to be construed in the light of the remainder of the visa application and the surrounding circumstances so as to identify the relevant intentions of the visa applicant (at para 35). In this case it was relevant that the applicant could have informed the Minister in the Form 1010 that she had an agent. Question 71 in fact guides visa holders to Parts M and K, but the applicant did not take the opportunity offered. The fact that the original Form 956 was completed three years before the Form 1010 made it reasonable for the delegate to conclude that the applicant might no longer have an agent acting for her, especially as part of the purpose of the monitoring surveys is to help the respondent to keep track of business visa holders.
32.	As Fisher J pointed out in Federal Commissioner of Taxation v Comber (1986) 64 ALR 451 at 458, deeming provisions are required by their nature to be construed strictly and only for the purpose for which they are resorted to. In this case the respondent is not relying on the deeming provisions of s 494C because it is not disputed that the applicant did in fact receive the notice in due time. That is a material point of difference from VEAN (VEAN of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570) and Song (supra), in which the evidence was that the appropriate addressee had either not received the notice, or had not received it until after the time for applying for a review had expired. The applicant sought to distinguish Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221 on the basis that it involved the interpretation of s 379G, not s 494D, but did not point to any material difference between the two provisions. The applicant also pointed out that in Makhu (supra) a copy of the notice was in fact sent to the agent (although the evidence did not show whether the agent had received it or not). That is correct, but in my view that distinction is less significant in a case such as the present in which it is not disputed that the applicant did in fact receive the notice in sufficient time to make an application for review.
33.	More importantly, there is evidence pointing to the applicant’s intention when she completed the Form 1010. On 5 May 2005, ten months after completing the Form 1010, the applicant signed a second Form 956, this time appointing Streamline Migration Services in Sydney as her migration agent. Question 3 on that form (T p107) invited the applicant to tick one of three boxes. She was asked to indicate whether she had "appointed a migration agent or exempted agent", or "changed your migration agent or exempted agent", or "ended the appointment of your migration agent or exempted agent". She ticked "appointed a migration agent", not "changed your migration agent", thereby indicating her belief that she did not at that time have a migration agent authorised to receive communications on her behalf. That rather undermines her contention at the hearing that, while she did not use Ms Tang’s services in preparing the Form 1010, she still viewed her as her agent for other migration purposes.
34.	In my view the Form 1010, when construed as a whole and in light of the surrounding circumstances, indicated an intention to receive departmental communications personally and not through Ms Tang in Taipei. I therefore conclude that the notice of intention to cancel the visa dated 13 April 2005 (T pp102-105) is valid.