Australian Immigration Daily News

Do you think Australia’s immigration legislation can produce outcomes that are brutal, harsh and unfair?

If you are not persuaded yet, or even if I am “preaching to the choir”, check this one out, a decision of the Full Court of the Federal Court handed down today, 25 June 2019, Russell v Minister for Home Affairs (2019) FCAFC 110.

The case involved an application for judicial review of a decision of the AAT that it did not have jurisdiction to hear an application for merits review of a decision not to revoke the cancellation of a visa held by a citizen of New Zealand.

The background of the case was that the visa holder had arrived in Australia at the age of one and had resided in Australia for the next 44 years. 

So there is a threshold issue here, that was not the subject of the Full Court’s consideration, but one which I suggest is worthy of consideration: should the visa cancellation regime be applied  to people who have spent their entire lives in Australia since infancy? I don’t think it should, but it is a matter for debate.

In any event, the visa holder in this case, Ms Russell, had been convicted of the offence of “specially break and enter and commit a serious indictable offence in company”.  The details of the conduct that gave rise to this conviction are not stated in the Full Court’s decision. In any event, Ms Russell was sentenced to a term of imprisonment of four and a half years with a non-parole period of two years and three months.

While she was incarcerated, her visa was cancelled on character grounds.

She applied to the Department for revocation of the cancellation.

Then, while she was at the Villawood Detention Centre in New South Wales (presumably after the completion of her non-parole period) a departmental officer hand-delivered a letter to her notifying her that the Department had declined to revoke the cancellation.

Ms Russell then sought to apply to the Tribunal for review of the non-revocation decision.

She sent an email to the Tribunal seeking review, and then shut down her email account.

However, due to the size of the files attached to her application for review, her email to the Tribunal “bounced”.

Ms Russell did not log  back onto her email account until one day after the nine day period for seeking review of a non-revocation period had elapsed.   She then re-lodged her application with the Tribunal, but the Tribunal decided that it did not have jurisdiction to hear the application.

Was she out of luck?

Unfortunately for her, the Full Court concluded that she was.

The Court found that the original email that had bounced had not been timely received by the Tribunal. The Full Court reasoned that under section 14A of the Electronic Transactions Act 1999, the time when an email is to be considered as having been “received” is when it becomes “capable of being retrieved by the addressee at an electronic address designated by the addressee”.

And since the original attempt to file the application by email had failed because the attached file was too large, it had not become capable of being retrieved by the addressee (the Tribunal) at the electronic address designated by the addressee.

The cruel irony here is that the instructions that were given to Ms Russell for filing her application for review with the Tribunal included directions that she was required to include with her application copies of all documents that had been given to her at the time of notification of the decision not to revoke the cancellation of her visa.  These included a large number of documents, totaling 130 pages. And there was no guidance given in the instructions provided by the Department concerning limits on the size of files that could be received by the AAT.

So evidently Ms Russell’s attempted application for merits review “bounced” through no fault of her own.

The clear moral of this case, however, is that applicants for review must be scrupulous to confirm that their applications for review have in fact been received by the Tribunal within the deadline for seeking review.  As readers will be aware, the Tribunal does typically send out confirmations promptly after an application has been filed. So if no such confirmation is received, then it is obviously necessary to take further steps to follow up and make sure that the application has in fact been received by the Tribunal.

And it is of course extremely important to be aware that if you try to seek review by email and the email “bounces”, then it will not be considered to have been received by the Tribunal.

The Full Court decision does not address this issue, but it is not clear whether Ms Russell would have been given sufficient access to email at the Villawood Detention Centre to be able to check that her application for review had in fact been timely received.

Perhaps if there had been evidence that her access to email was restricted while she was in detention, and she had been given only a limited opportunity to access her emails, the outcome in this case,  which the Full Court itself described as “deeply unfortunate”, might have been different.

If you think these articles are helpful, there will be more to come, and stay tuned for even more on the Migration Messenger, launching soon!