Russell v Minister for Home Affairs [2018] FCA 2102

Russell v Minister for Home Affairs [2018] FCA 2102

Ms Russell was validly notified of the delegate's decision on 27 August 2018, and under s 500(6B) her Tribunal application had to be lodged within 9 days. Her attempted email of 31 August 2018 was not received by the Tribunal because the message size exceeded a fixed limit, and as a matter of law an application is not made until received. The application received on 6 September 2018 was therefore out of time, s 29(7) of the Administrative Appeals Tribunal Act did not apply, and the Tribunal correctly decided that it had no jurisdiction.

Jurisdiction
Australia
Judgment Date
17 December 2018
Procedural Posture
Application for Judicial Review of an Administrative Appeals Tribunal No Jurisdiction Decision Concerning Migration Merits Review / Federal Court Application Dismissed
Outcome
Application dismissed with costs payable to the first respondent.
Legal Topics
['visa Cancellation Under S 501(3 A) of the Migration Act 1958 (cth)' 'non Revocation Decision' 'administrative Appeals Tribunal Jurisdiction' 'time Limit for Merits Review Application' 'email Lodgement and Receipt']
['migration Law' 'administrative Law'] ['visa Cancellation Under S 501(3 A) of the Migration Act 1958 (cth)' 'non Revocation Decision' 'administrative Appeals Tribunal Jurisdiction' 'time Limit for Merits Review Application' 'email Lodgement and Receipt']

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Procedural Posture

Application for Judicial Review of an Administrative Appeals Tribunal No Jurisdiction Decision Concerning Migration Merits Review / Federal Court Application Dismissed

Legal Issues

  1. 1 ["Whether the Federal Court had jurisdiction to review the delegate's non-revocation decision." "Whether the Tribunal erred in deciding that it had no jurisdiction because Ms Russell's application for merits review was lodged outside the time prescribed by s 500(6B) of the Migration Act 1958 (Cth)." 'Whether an emailed application attempted within time but not received by the Tribunal because the message size exceeded a fixed limit was lodged within time.' 'Whether Brown v Minister for Home Affairs (No 2) [2018] FCA 1787 applied to permit an extension of time.']

Ratio Decidendi

Ms Russell was validly notified of the delegate's decision on 27 August 2018, and under s 500(6B) her Tribunal application had to be lodged within 9 days. Her attempted email of 31 August 2018 was not received by the Tribunal because the message size exceeded a fixed limit, and as a matter of law an application is not made until received. The application received on 6 September 2018 was therefore out of time, s 29(7) of the Administrative Appeals Tribunal Act did not apply, and the Tribunal correctly decided that it had no jurisdiction.

Court Disposition

Application dismissed with costs payable to the first respondent.

Orders

  • ['The application is dismissed.' "The applicant must pay the first respondent's costs as agreed or taxed."]