Russell v Minister for Home Affairs

[2018] FCA 2102

FEDERAL COURT OF AUSTRALIA

Russell v Minister for Home Affairs [2018] FCA 2102

File number(s):

NSD 1792 of 2018

Judge(s):

FARRELL J

Date of judgment:

17 December 2018

Catchwords:

MIGRATION – application to review a “no jurisdiction” decision of the Administrative Appeals Tribunal – visa cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) – a delegate of the Minister refused to revoke the decision to cancel the visa – application to the Tribunal for merits review of the non-revocation decision lodged one day after the time prescribed by s 500(6B) of the Migration Act – applicant attempted to file application within time but email was not received by Tribunal due to excessive size of attachment – whether Brown v Minister for Home Affairs (No 2) [2018] FCA 1787 is applicable – application dismissed

Legislation:

Migration Act 1957 (Cth) ss 476A, 494B, 500, 501, 501G

Administrative Appeals Tribunal Act 1975 (Cth) s 29

Cases cited:

Brown v Minister for Home Affairs [2018] FCA 1643

Brown v Minister for Home Affairs (No 2) [2018] FCA 1787

Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494; [2008] FCA 458

Date of hearing:

17 December 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

17

Counsel for the Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

Mia Donald of Sparke Helmore Lawyers

Counsel for the Second Respondent:

The second respondent submitted save as to costs

ORDERS

NSD 1792 of 2018

BETWEEN:

RAEWYN HELEN RUSSELL

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	17 DECEMBER 2018

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant must pay the first respondent’s costs as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J:

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 17 September 2018 that it had no jurisdiction to hear the applicant's application for merits review of a decision of a delegate of the Minister for Home Affairs. 

   BACKGROUND

2. The applicant (Ms Russell) is a citizen of New Zealand who was the holder of a Subclass 444 Special Category (Temporary) visa which was granted by operation of law on 1 September 1994. On 16 June 2017, a delegate of the Minister cancelled her visa under s 501(3A) of the Migration Act 1958 (Cth) (cancellation decision).  At that time, the applicant was incarcerated at Dillwynia Correctional Centre in New South Wales following her conviction on 8 March 2017 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. 

3. On 24 August 2018, a delegate of the Minister decided not to revoke the cancellation decision.  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.  She then shut down her email.  She did not log onto her email again until 6 September 2018.  She then received a notification dated at 5.25 pm on 31 August 2018 that her email to the Tribunal sent on 31 August 2018 was undeliverable with error messages of "unknown address error" and "message size exceeds fixed limit". 

4. She lodged her application on 6 September 2018, and it was then received by the Tribunal.  Ms Russell acknowledges that this was one day after the nine days that she had to file an application with the Tribunal. 

5. In her submissions faxed to the Court on 3 December 2018, Ms Russell recounts steps which she took to communicate with the Tribunal leading up to a decision made by the Tribunal on 17 September 2018 that the Tribunal had no jurisdiction to deal with Ms Russell's application because, following enquiry, it had no record of receiving an application for review on 31 August 2018. 

   MS RUSSELL'S SUBMISSIONS

6. Ms Russell submits that the decision made on 17 September 2018 was in error because it failed to have regard to her evidence that she "transmitted" her application in time on 31 August 2018.  She submitted that she was not told by the Department of Home Affairs or in her communications with the Tribunal that the Tribunal's server had file size limits.  She says that due to the application's file size, the Tribunal's server "refused to accept" her application on 31 August 2018.  She says that she did not send any "extra documents" but only those documents that were required to be sent to make an application to the Tribunal.  She submits that there is "no law" which allows the Tribunal to refuse an application or any other documents simply because its file size is too big.

7. Although all of Ms Russell's submissions address the Tribunal's decision, all of her grounds in the application she made to this Court go to whether the delegate's decision not to revoke the cancellation decision was properly made.

   CONSIDERATION

8. I will not separately address the Minister's submissions because they are incorporated into the following reasons.

9. Having regard to s 476A(1) of the Migration Act, this Court does not have jurisdiction to review the delegate's decision so that the express grounds of Ms Russell's application must be dismissed.

10. Acknowledging that Ms Russell is self-represented, the Minister proceeded on the basis that the Court should treat Ms Russell's application as seeking review of the Tribunal's "no jurisdiction" decision and that is how her application has been treated.

11. The Minister noted that Ms Russell had, in correspondence with the Court on 22 November 2018, sought to rely on the decision in Brown v Minister for Home Affairs (No 2) [2018] FCA 1787 (Brown (No 2)) in which Greenwood J found that the Tribunal retains its power under s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) to extend time in which to receive applications in relation to some migration decisions.

12. The Minister submitted, and I accept, that that decision does not apply to applications to the Tribunal for review of "character" decisions because s 500(6B) of the Migration Act expressly excludes the operation of s 29(7) of the Administrative Appeals Tribunal Act, a matter which Greenwood J expressly referred to in Brown v Minister for Home Affairs [2018] FCA 1643 at [55]-[63] and in Brown (No 2) at [3].

13. I note that s 500(6B) of the Migration 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.

14. Ms Russell was validly notified of the delegate's decision on 27 August 2018 in accordance with ss 501G and 494B(2) of the Migration Act.  I note that Ms Russell signed an acknowledgment of receipt of that decision and has not disputed the date on which she received it.

15. An application is not made until it is received by the Tribunal: see Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494; [2008] FCA 458 at [21] per Lindgren J. Having regard to that decision, despite the submissions made by Ms Russell, as a matter of law, the Tribunal did not receive her application on 31 August 2018.

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.

17. In my view, the Tribunal's decision that it could not entertain her application filed on 6 September 2018 was correctly made.  Accordingly, I must dismiss the application.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate

Dated:       21 December 2018