Federal Court (Full Court): was an email that exceeded the maximum size accepted by the addressee nevertheless "capable of being retrieved by the addressee at an electronic address designated by the addressee" if that email was retrieved by the addressee's email provider?
Summary and discussion
The Appellant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth), which meant that she only had 9 days to validly make an application to the AAT for merits review of that cancellation.
Regulation 4.11 of the Migration Regulations 1994 (Cth) provided as follows:
(1) An application for review by the Tribunal must be given to the Tribunal by:
(e) transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975.
(5) An application made to the Tribunal in accordance with paragraph (1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it.
A practice direction given by the President of the AAT relevantly stated:
2.4 For the purposes of paragraphs 4.11(1)(e) ... of the Migration Regulations, an application for review may be given to the AAT by transmitting it electronically to the AAT by:
• submitting it using the online application system of the Migration and Refugee Division which is accessible from either:
o the AAT website at http://www.aat.gov.au/apply-online; or
o the AAT website at https://www.tribunalonline.mrt-rrt.gov.au; or
o emailing it to email@example.com or firstname.lastname@example.org.
Section 14A of the Electronic Transactions Act 1999 (Cth) provided:
(1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee...
The Appellant sent an email to email@example.com an with her review application form and disconnected from her email account (the first application).
As it turns out, she received an automatic response from an email address ending with "secureintellicentre.net.au", indicating that her email had not been delivered as it exceeded the size limit fixed by the AAT. That email address belonged to a mail server (Macquarie Telecom) by a business which provided services to the AAT.
The Appellant only connected to her email account again after the 9-day timeframe had lapsed. She then noticed the automatic response and made a further Tribunal application (the second application), but the AAT determined it had no jurisdiction as that second application had been lodged out of time.
The Appellant then applied to the Federal Court (FCA) for judicial review of the AAT's decision. The FCA dismissed that application and the Appellant eventually appealed the FCA's decision to the Full Court of the FCA (FCAFC).
The question to the FCAFC was whether the first application had been validly made. In other words, was the time of receipt of the email sent by the Appellant the time when that email was capable of being retrieved by Macquaire Telecom or the time when the email was capable of retrieving by the AAT?
The FCAFC answered as follows...
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