Russell v Minister for Home Affairs [2019] FCAFC 110 | Case summary

Federal Court of Australia (Full Court)|2019-06-25|Before: Burley JJ

The appeal is dismissed.
The first respondent has leave to file a short written submission within 7 days in support of any application for costs.
In the event that no submission is filed pursuant to the leave granted in accordance with order 2, there will be no order as to the costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The appellant, Ms Russell, is a citizen of New Zealand. She arrived in Australia at the age of one and has resided here for over 44 years. On 16 June 2017, a delegate of the Minister for Home Affairs cancelled her visa on character grounds pursuant to s 501(3A) of the Migration Act 1958 (Cth). At that time, Ms Russell was incarcerated at Dillwynia Correctional Centre in New South Wales following her conviction on 8 March 2017 for one count of "specially aggravated break and enter and commit a serious indictable offence in company", for which she was sentenced to four years and six months imprisonment with a non-parole period of two years and three months. 2 Ms Russell applied pursuant to s 501CA(4) of the Act for the cancellation of her visa to be revoked, and on 24 August 2018 a delegate of the Minister, after considering her application, declined to do so (delegate's decision). The events relevant to this appeal took place following the delegate's decision, and concern the question of whether Ms Russell is able to pursue an application for a merits review of the decision of the delegate before the Administrative Appeals Tribunal. 3 The relevant facts are not in dispute. On 27 August 2018, a departmental officer hand-delivered a letter to Ms Russell at the Villawood Immigration Detention Centre notifying her of the delegate's decision. Three days later, on 31 August 2018 at 5.14 pm, Ms Russell attempted to lodge with the Tribunal by email an application for review of the delegate's decision (application email). She then shut down her email account. Due to the size of the attachment to her email, an automatic response was generated about 10 minutes later, as set out below. However, she did not log on again and see that response until six days later, on 6 September 2018. It was then that she read the automatic response, sent at 5.25 pm on 31 August 2018, that her application email was undeliverable with error messages of "unknown address error" and "message size exceeds fixed limit". The text of the automatic response email is as follows (non-delivery email): Mail Delivery System To: [Ms Russell's email address] Fri, Aug 31, 2018 at 5:25 PM The following message to was undeliverable. The reason for the problem: 5.1.0 - Unknown address error 55-'5.3.4 Message size exceeds fixed limit' Final-Recipient: rfc822; Action: failed Status: 5.0.0 (permanent failure) Remote-MTA: dns; [10.62.67.25] Diagnostic-Code: smtp; 5.1.0 - Unknown address error 552-'5.3.4 Message size exceeds fixed limit' (delivery attempts: 0) 4 Ms Russell lodged her application promptly on 6 September 2018, and it was then received by the Tribunal. This was one day after the nine days that she had to file an application with the Tribunal pursuant to s 500(6B) of the Act. 5 On 17 September 2018, the Tribunal determined that it had no jurisdiction to hear the application for review due to the application being filed out of time. Ms Russell then applied to this Court for judicial review of the decision of the Tribunal. On 17 December 2018, her application was dismissed by the learned primary judge; Russell v Minister for Home Affairs [2018] FCA 2102 (Farrell J). 6 Ms Russell now appeals from the decision of the primary judge. She is represented by Ms S Kaur-Bains of counsel who appears pro bono. Ms Russell's Notice of Appeal identified three grounds of appeal, however, in written submissions supplied in advance of the hearing, she seeks leave to rely on one amended ground, which is as follows: The primary judge erred in finding that the Tribunal did not fall into jurisdictional error when the Tribunal found that it had no jurisdiction in the matter because Ms Russell had failed to make an application for review of the delegate's decision within the 9 days period prescribed under s 500(6B) of the Act. 7 Ms Russell seeks leave to rely on two affidavits not relied upon before the primary judge, one sworn by herself and another sworn by Nguyen Le Tran, solicitor. They go to the contractual relationship between the Commonwealth and Macquarie Telecom Pty Ltd, which is said to provide secure internet gateway services for the Tribunal. The materials identify "secureintellicentre.net.au" as being a mail server operated by Macquarie Telecom. 8 The Minister is represented by Mr G Johnson of counsel, who did not oppose the amendment to the Notice of Appeal but opposes the grant of leave to rely on the new affidavit evidence. The Minister contends that the appeal should be dismissed with costs. 9 For the reasons that follow, we grant leave to rely on the amended ground, refuse leave to rely on the two affidavits, and dismiss the appeal.

THE DECISION OF THE PRIMARY JUDGE 10 The learned primary judge notes in her decision that Ms Russell was validly notified by the decision of the delegate on 27 August 2018, in accordance with ss 501G and 494B(2) of the Act. She further notes, citing Pomare v Minister for Immigration and Citizenship [2008] FCA 458; 167 FCR 494 at [21] (Lindgren J), that an application is not made until it is received by the Tribunal. The primary judge concludes (at [16]): As acknowledged by Ms Russell, the cause of the delivery failure of her email sent on 31 August 2018 was the size of the file. While it is true that the "How to Apply for Merits Review by the Administrative Appeals Tribunal" form which accompanied the notification of the delegate's decision on 24 August 2018 did not contain advice about possible file size limits which might affect the Tribunal's capacity to receive an application by email. In my view it did not need to. Ms Russell was sent a notification of the delivery failure shortly after she sent her email on 31 August 2018. The fact that she does not commonly use a computer does not negate the fact that it was open to her to find out about the delivery failure shortly after she sent her email. It was her responsibility to ensure that the email was received by the Tribunal. 11 Accordingly, the application was dismissed.

THE RELEVANT STATUTORY PROVISIONS 12 Section 500(6B) of the Act provides as follows: If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application. 13 Regulations 4.11(1)(e) and (5) of the Migration Regulations 1994 (Cth) provide: (1) An application for review by the Tribunal must be given to the Tribunal by: ... (e) transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975. ... (5) An application made to the Tribunal in accordance with paragraph (1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it. 14 On 28 February 2019, a Practice Direction was given by the President of the Tribunal under s 18B of the Administrative Appeals Tribunal Act 1975 (Cth) relevantly stating: 2.4 For the purposes of paragraphs 4.11(1)(e) and 4.31AA(1)(3) of the Migration Regulations, an application for review may be given to the AAT by transmitting it electronically to the AAT by: • submitting it using the online application system of the Migration and Refugee Division which is accessible from either: o the AAT website at http://www.aat.gov.au/apply-online; or o the AAT website at https://www.tribunalonline.mrt-rrt.gov.au; or o emailing it to mrdivision@aat.gov.au or registry@mrt-rrt.gov.au. 15 Section 14A of the Electronic Transactions Act 1999 (Cth) provides: Time of receipt (1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication: (a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or (b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both: (i) the electronic communication has become capable of being retrieved by the addressee at that address; and (ii) the addressee has become aware that the electronic communication has been sent to that address. (2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address. (3) Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.

4.1 The appellant's arguments 16 Ms Russell represented herself at the hearing before the primary judge. On appeal, with the benefit of legal representation, she raises further arguments in support of her position. 17 Ms Russell submits that the application email became capable of being retrieved by the Tribunal within s 14A(1) of the Electronic Transactions Act by no later than 5.25pm on 31 August 2018, which was the date when the application email was acknowledged by the mail server operated for and on behalf of the Tribunal. At that time, the mail server sent a message to Ms Russell informing her that her application email was undeliverable. The non-delivery email was read by Ms Russell when she opened her email account on 6 September 2018. 18 Ms Russell submits that the following should be drawn from the non-delivery email: (a) that no later than 31 August 2018 at 5.25pm, the application email was received by the mail server; (b) the application email was not blocked by her own email server, but rather blocked by the mail server; (c) the mail server sending the response was secureintellicentre.net.au, as is apparent from the email address; (d) the mail server that encountered the problem was the server located at "dns; [10.62.67.25]", with "dns" standing for "domain name server"; and (e) after being received by the mail server, the application email was not sent on to the specified address mrdivision@aat.gov.au as it was said to be "undeliverable" because it exceeded the size limits applied at the "remote MTA". 19 Ms Russell submits that the primary judge erred in failing to draw two inferences from the material; first, that the non-delivery email was sent from the mail server on behalf of the Tribunal; and secondly, that in order to send the non-delivery email, the application email from Ms Russell had entered into the "information system" of the Tribunal, because it is apparent that certain aspects of her application email, including its size and its intended address, had been processed to some degree. Ms Russell submits that at that point the application email became "capable of being retrieved" within s 14A(1)(a) of the Electronic Transactions Act. Further, she submits that in circumstances where a direction was made for the purposes of reg 4.11(1)(e) of the Regulations specifying the means by which an application for review may be transmitted to the Tribunal, but without any indication of the limit of the file size that may be transmitted, the Tribunal did not have the power or authority to refuse to accept an application because the size of the application was too big. On this argument, the primary judge erred in holding that Ms Russell had not made an application in circumstances where the relevant file had been submitted in accordance with the terms of the direction.

4.2 Consideration 20 The present appeal turns on whether or not Ms Russell lodged her review application within the time limit specified in s 500(6B) of the Act. The difficulty for Ms Russell is that her argument is predicated on a truncated reading of the language of s 14A(1)(a). The question is not merely when the electronic communication becomes capable of being retrieved by the addressee, but when it becomes capable of being retrieved at an electronic address designated by the addressee. In the present case two factual matters are undisputed. The first is that the relevant electronic address designated by the Tribunal is mrdivision@aat.gov.au, and the second is that although the application email was so addressed, it was never received there. This was because the pdf file accompanying the email was too large. The message provided by the non-delivery email states that the application email was "undeliverable". 21 Ms Russell contends that the fact of non-delivery is not fatal. She submits that having regard to the Explanatory Memorandum to the Electronic Transactions Bill 2011 (Cth) (which added s 14A to the Electronic Transactions Act), and to the terms of the Explanatory note to the United Nations Convention on the Use of Electronic Communications in International Contracts (New York, entered into force 1 March 2013), an electronic communication becomes capable of being retrieved by the addressee when the electronic communication comes within the "information system" of the recipient organisation. In the present case, that was when the email was received by the mail server operated by Macquarie Telecom. 22 Two propositions stand in the way of acceptance of that argument. The first, as we have noted, is the explicit unmet predicate of s 14A(1)(a) that the communication be received at the designated address. That arises from the word "retrieved...at an electronic address", which indicates that it must actually have arrived at that address. Secondly, the subsection makes no reference to an "information system". That is a term defined in s 5 of the Electronic Transactions Act as meaning "a system for generating, sending, receiving, storing or otherwise processing electronic communications". Receipt of a message within an information system would no doubt extend the scope for receipt beyond the electronic address specified. However, Parliament chose not to use that term in s 14A(1)(a). By contrast, the defined term does appear, in a different context, in s 14(3). In such circumstances we would not conclude that s 14A(1)(a) extends the concept of receipt to receipt within an information system. 23 In oral submissions on her behalf, Ms Russell advanced an alternative argument based on the terms of s 14A(2) of the Electronic Transactions Act. However, that provision also proceeds on the basis that an electronic communication has been received at the addressee's electronic address, and also does not include the term "information system". It must be rejected for the same reasons. 24 Ms Russell relies upon the Explanatory Memorandum to the Bill, and upon the terms of the Explanatory note to the Convention, but neither adds anything to the text of s 14A, or any reason for departure from the explicit words of the section that such a communication is only capable of being retrieved when it actually reaches the designated electronic address. 25 Ms Russell also relies on the terms of s 161(1) of the Evidence Act 1995 (Cth), which contains a rebuttable presumption that an email sent from the address appearing on its face, was received at the destination to which it was addressed on its face. However, in this case the presumption is rebutted by the mail server email stating that the application email was not delivered to the Tribunal email address because it was too big. That email was before the primary judge and before this Court. Accordingly, the presumption has no application. 26 It should be said that whilst Ms Russell has not succeeded in her legal arguments, the circumstances in which she finds herself are deeply unfortunate. She was notified of the decision of the delegate refusing to revoke her visa cancellation by letter dated 27 August 2018. That letter enclosed an information sheet entitled "How to Apply for Merits Review by the AAT". The letter enclosed the decision of the delegate together with some 30 attachments. The information sheet said that she may apply online, or by email, to the Tribunal for a review of the decision. It said that the application must be accompanied by a copy or the original of all of the documents given to her at the time of notification of the decision, failing which the application for review will be invalid. The addresses of the offices of the Tribunal around Australia were listed, but of course Ms Russell was in detention and could not attend one to file the application personally. She located the correct email address and attempted to send the application there. It was too large, probably because of the size of the pdf file comprising her application which included the decision of the delegate (totalling over 130 pages) that she was obliged to include as part of her application. No guidance was given in either the letter or accompanying information sheet as to file size limits. Nor was any mention made that she should be conscious of the file size of her application, or be careful to make sure that the email she sent did not 'bounce'. 27 In such circumstances it is unfortunate that Ms Russell is now deprived of an opportunity to have a merits review of her application. Nevertheless, we do not consider that she is able to succeed on the basis of the arguments advanced. Accordingly, we dismiss the appeal. 28 In the circumstances where Ms Russell's application was not received in time due to no real fault on her part, we are not inclined to make any award of costs against her. However, if the Minister seeks an order for costs, he may file a short written submission in support of that position within the next 7 days. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Nicholas, Bromwich and Burley.

Migrations Regulations 1994(Cth)reg 4.11(1), (5)

Migration Act 1958(Cth)s 500(6b), 501G, 494B(2)

Evidence Act 1995(Cth)s 161(1)

Russell v Minister for Home Affairs

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