Russell v Minister for Home Affairs [2019] FCAFC 110

Russell v Minister for Home Affairs [2019] FCAFC 110

The appeal was dismissed because the appellant's 31 August 2018 email, although addressed to the Tribunal's designated email address, was never received at that address and was returned as undeliverable due to the size of the attachment. Section 14A of the Electronic Transactions Act 1999 (Cth) required receipt at the designated electronic address and did not treat entry into a mail server or information system as sufficient. The presumption in s 161(1) of the Evidence Act 1995 (Cth) was rebutted by the non-delivery email. The application lodged on 6 September 2018 was therefore outside the 9 day period in s 500(6B) of the Migration Act 1958 (Cth), so the Tribunal had no jurisdiction.

Jurisdiction
Australia
Judgment Date
25 June 2019
Procedural Posture
Migration Appeal From Dismissal of an Application for Judicial Review of an Administrative Appeals Tribunal No Jurisdiction Decision / Appeal to the Full Court of the Federal Court of Australia
Outcome
Leave to rely on the amended ground was granted, leave to rely on two affidavits was refused, and the appeal was dismissed.
Legal Topics
['visa Cancellation on Character Grounds' 'time Limit for Application to the Administrative Appeals Tribunal' 'receipt of Electronic Communications' 'jurisdiction of the Administrative Appeals Tribunal' 'judicial Review']
['migration Law' 'administrative Law' 'electronic Transactions'] ['visa Cancellation on Character Grounds' 'time Limit for Application to the Administrative Appeals Tribunal' 'receipt of Electronic Communications' 'jurisdiction of the Administrative Appeals Tribunal' 'judicial Review']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Migration Appeal From Dismissal of an Application for Judicial Review of an Administrative Appeals Tribunal No Jurisdiction Decision / Appeal to the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that the appellant failed to make an application for review within the 9 day period prescribed by s 500(6B) of the Migration Act 1958 (Cth).' 'Whether an email application that was returned as undeliverable because the attachment exceeded a size limit was received by the Tribunal for the purposes of s 14A of the Electronic Transactions Act 1999 (Cth).' 'Whether the rebuttable presumption in s 161(1) of the Evidence Act 1995 (Cth) assisted the appellant where a non-delivery email showed that the email was not delivered.']

Ratio Decidendi

The appeal was dismissed because the appellant's 31 August 2018 email, although addressed to the Tribunal's designated email address, was never received at that address and was returned as undeliverable due to the size of the attachment. Section 14A of the Electronic Transactions Act 1999 (Cth) required receipt at the designated electronic address and did not treat entry into a mail server or information system as sufficient. The presumption in s 161(1) of the Evidence Act 1995 (Cth) was rebutted by the non-delivery email. The application lodged on 6 September 2018 was therefore outside the 9 day period in s 500(6B) of the Migration Act 1958 (Cth), so the Tribunal had no jurisdiction.

Court Disposition

Leave to rely on the amended ground was granted, leave to rely on two affidavits was refused, and the appeal was dismissed.

Orders

  • ['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.']