The recent Full Federal Court case of Russell v Minister for Home Affairs [2019] FCAFC 110, demonstrates how the lodgement of review applications by email can be fraught with problems. The basic facts are:
- Ms Russell (a NZ citizen) was in prison and had her visa cancelled on character grounds (s 501(3A) Migration Act);
- On 24 August 2018, her application for a revocation of that decision (s 501CA(4)) was unsuccessful and she was notified of the decision on 27 August when documents were delivered to her;
- She then had 9 days from that date to lodge a review application in the AAT (s 500(6B));
- On 31 August, she lodged a review application with the AAT by email;
- Unfortunately, about 10 minutes after she logged off, the AAT server “bounced” her email because “message size exceeds fixed limit”;
- Even more unfortunately, she didn’t see this message until 6 days later when she next logged on. She promptly then resent the email. However, she was 1 day out of time and the AAT determined it had no jurisdiction;
- She was unsuccessful in a review application in the Federal Court and she appealed to a Full Court.
Her basic argument was that the “bounce message” was generated by the AAT server and that her email had come within the “information system” of the AAT. Unfortunately (again), s14A Electronic Transactions Act, says that email is received when it is “retrieved by the addressee at an electronic address designated…”. This argument was rejected because there is no reference to “information system” in s 14A (only in the s 5 definitions) and because her message wasn’t retrieved at an electronic address.
The Full Court also observed that Ms Russell’s circumstances were unfortunate. She was required to include the delegate’s 130 page decision with the application which caused the file size problem. Despite no guidance being given to her about file size limits, her arguments were nonetheless rejected.
I have had previous cases where clients have sought to challenge the fairness of notifications provided by email. This can be a difficult area. Please contact me if you would like to discuss your particular circumstances.
