FEDERAL CIRCUIT COURT OF AUSTRALIA
SZSKX v MINISTER FOR IMMIGRATION & ANOR	[2014] FCCA 157	

Catchwords: 
MIGRATION – Review of Refugee Review Tribunal decision – Tribunal finding it lacked jurisdiction because the review application was late – applicant’s representative faxing application to the Tribunal before the due date – no record of receipt – evidence available of non receipt – no jurisdictional error.

LAW REFORM – Observations on the inability of the Tribunal to extend the time for lodgement of a review application.	

Legislation:
Electronic Transactions Act 1999 (Cth), s.14A
Evidence Act 1995 (Cth), s.161
Migration Act 1958 (Cth), s.412
Migration Regulations 1994 (Cth)	

Chen v Minister for Immigration [2013] FCAFC 133
Sherpa v Minister for Immigration [2010] FMCA 664	

Applicant:	SZSKX	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Refugee Review Tribunal	

File Number:	SYG 3035 of 2012	

Judgment of:	Judge Driver	

Hearing date:	6 February 2014	

Delivered at:	Sydney	

Delivered on:	4 April 2014	

REPRESENTATION
Solicitors for the Applicant:	Mr M Jones
Parish Patience Immigration Lawyers	

Counsel for the Respondents:	Ms R Francois	

Solicitors for the Respondents:	Minter Ellison	

ORDERS
(1)	The application filed on 19 December 2012 is dismissed.
(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Sydney	
SYG 3035 of 2012
SZSKX	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent
Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
Introduction and background
1.	This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 21 November 2012.  The Tribunal found that it did not have jurisdiction in the matter before it as the last date for the filing of a review application was 26 July 2012 and the Tribunal did not receive the review application from the applicant until 22 August 2012.  It is common ground that the applicant applied for review after the expiration of the time fixed for such a review application.  The parties are in dispute, however, about whether the applicant had made an earlier application which should be taken to have been received before the due date.
2.	The Tribunal, in its decision, dealt with the circumstances as it understood them in its decision.  At [17]-[24] of its decision the Tribunal stated:
	The applicant’s advisor submitted that an application for review of the decision to refuse the application was lodged with the Refugee Review Tribunal on 25 June 2012. Their submission states:
	We refer to your letter dated 1 November 2012, and note that the application for a review was initially faxed to the Refugee Review Tribunal on 25 June 2012. We enclose herewith a copy of successful facsimile communication report for your consideration.
	The application for a review was refaxed on 22 August 2012, after being advised that the Tribunal had not received our facsimile of 25 June 2012.
	We remain at a loss as to the reason why our facsimile report would confirm a successful transaction, whilst the Tribunal advises that no transaction was received on that date. Accordingly, given that we have provided evidence of a successful facsimile transaction, it is incumbent upon the Tribunal to initiate appropriate technical scrutiny to recover the lost data.
	A copy of a ‘Communication Result Report’ number 7967 was provided, indicating a five page fax was sent to the correct fax number for the Refugee Review Tribunal Melbourne Registry, with the fax sent time being 7:48 on the applicant’s advisors fax machine, with the result being indicated as ‘OK’.
	The Tribunal has no record of a fax being received at 7:48 on 25 June 2012. The earliest fax arrival on 25 June 2012 to the Tribunal is at 8:53.
	The Tribunal requested an investigation of the receipt of materials by fax on the 25 June 2012 be conducted. The Tribunal determined that the Tribunal’s fax machine and accompanying software was functioning appropriately on 25 June 2012. The Tribunal determined that the Tribunal keeps a record of the faxes received by the Tribunal, which was available for inspection by the Tribunal. The Tribunal caused a record of the faxes received by the Tribunal on 25 June 2012 to be created. The Tribunal inspected the record and determined that the applicant’s advisor had attempted to send four faxes to the Tribunal on 25 June 2012, of which three successfully transmitted. These faxes were received at:
	9:42am – 5 pages – Success
	11.03am – 3 pages – Success
	11:50am – 2 pages – Receive failure
	11:52am – 3 pages – Success  
	The Tribunal has produced these faxes and none refer to the applicant.
	The Tribunal notes the following from the faxes received by the Tribunal from the applicant’s advisor’s fax machine. The time of the fax as indicated by the applicant’s advisors record is not a true time. The fax that was successfully received by the Tribunal from the applicant’s advisor at 9:42am, a five page fax regarding a separate application, with the reference number 7966, had a fax sent time from the applicant’s advisor’s office as 7:40.
	Accordingly, if the application in question was sent at 7:48, 8 minutes after the previously successful fax to the Tribunal by the applicant’s advisor, the Tribunal considers that a fax should have been received by the Tribunal at or around 9:50am on 25 June 2012. No fax was received at this time. The next fax received by the Tribunal was at 10:06am from a different number and refers to a different matter. No fax was received between the 9:42am fax sent by the applicant’s advisor and the 10:06am fax.
	Based on these records the Tribunal finds that the Tribunal did not receive a faxed application in relation to the applicant from the applicant’s advisor on 25 June 2012.
	The Tribunal has considered the law in relation to when an application is lodged with the Tribunal. The act of posting or faxing an application does not equate with lodgment. The application must be physically received at a registry of the Tribunal for lodgment to have taken place. The reference to a Tribunal registry is reference to the Tribunal’s registry office or premises. The case law indicates that an application is not lodged when it is received at the Tribunal’s locked bag or PO Box.
	The Full Court of the Federal Court considered the meaning of the term “lodged” in Hong Ye v MIMA. The Court suggested that the word “lodge” appeared to have no special or technical meaning, but has to be given its ordinary meaning.  Essentially, it found that a document will be lodged when it comes within the possession of the registry:
	... an application to review will be “lodged” when it comes into the possession of a registry or the staff of a registry. The means by which possession is obtained does not matter. It could come about when an application is delivered into the hands of the registry staff or, if the application is posted, when it is received by the registry. When an application to review is sent by facsimile transmission to a facsimile machine that is located in the registry the application will be in the possession of the registry when the transmission is complete.
3.	In addition to the court book filed on 6 March 2013, I have before me as evidence the affidavit of Bernadette Ruddy made on 16 July 2012.  Ms Ruddy is the Director of Technology Services for the Tribunal and gave evidence about the Tribunal system for the receipt of facsimile transmissions.  She was cross-examined on her affidavit.
4.	I also have before me the affidavit of Issam Issa made on 17 April 2013, to which is annexed a Telstra record of a facsimile transmission on 25 June 2012 to the Tribunal’s facsimile number in Melbourne at 9.50am.  That evidence was enhanced by documentation subpoenaed from Telstra which I received as Exhibit A1.  
5.	Both parties made written and oral submissions.
Consideration
6.	As is clear from the judicial review application and the applicant’s submissions, this proceeding turns on the interpretation of a single jurisdictional fact: whether or not the applicant made a valid application to the Tribunal within the statutory timeframe.
7.	The applicant does not contest the operation of s.412(1)(b) of the Migration Act 1958 (Cth).  Neither does he dispute the operation of regulation 4.31(2) of the Migration Regulations 1994 (Cth).  He concedes that the Tribunal was correct in calculating the last day for the giving of an application for review (26 July 2012).  
8.	I accept from the affidavit of Mr Issa and Exhibit A1 that the applicant’s representative prepared an application for review of the decision of the delegate and faxed it to the fax number of the Melbourne registry of the Tribunal at 9.50am on 25 June 2012.  I also accept from the affidavit of Ms Ruddy that the Tribunal has no record of receipt of that facsimile transmission.  The applicant relies upon the decision in Chen v Minister for Immigration to support the contention that an application once received by the Tribunal is made to the Tribunal regardless of whether it is misplaced or not acted upon.  The applicant contends that the weight of evidence supports a conclusion that the review application faxed to the Tribunal at 9.50am on 25 June 2012 was received by the Tribunal, whether or not there is any record in the Tribunal system of that receipt.  The Telstra record relied upon by the applicant shows a facsimile transmission lasting 45-46 seconds.  The applicant submits, with some force, that the length of that transmission supports a conclusion that the facsimile transmission was successful, especially as Telstra billed the applicant’s representative for it.  
9.	The Minister, while placing a somewhat different gloss on the issue to be decided, contends that the factual issue is whether the facsimile transmission came into possession of the Tribunal on 25 June 2012.  While the Minister contends that no analogy can be drawn with cases concerning applications sent by post (or delivered in person), I see no distinction in principle between the Tribunal taking physical possession of an application or the Tribunal taking electronic possession of an application.  As to when an application comes into electronic possession of the Tribunal, guidance is provided by s.14A of the Electronic Transactions Act 1999 (Cth) (Electronic Transactions Act) which provides:
	(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; or
	(b)	the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
	(i)	the electronic communication has become capable of being retrieved by the addressee at that address; and
	(ii)	the addressee has become aware that the electronic communication has been sent to that address.
	(2)  	For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address.
	(3)  Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.
10.	I accept from that provision that the Tribunal receives a facsimile transmission when the facsimile:
	becomes capable of being retrieved by the [registry] at [the facsimile number] designated by the [registry].
11.	However, that provision must be read with subsection (2) which raises an assumption in the absence of agreement between the originator and the addressee that the transmission is capable of being retrieved when it reaches the addressee’s electronic address.  
12.	The Minister relies upon s.161(1) of the Evidence Act 1995 (Cth) (Evidence Act) which provides:
	(1)  	If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:
	(a)	was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
	(b)  	was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
	(c)  	was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
	(d)  	was received at the destination to which it appears from the document to have been sent; and
	(e)  	if it appears from the document that the sending of the communication concluded at a particular time--was received at that destination at that time.
13.	The Minister concedes from the evidence that, prima facie, there is a presumption that the Tribunal received the five page facsimile of 25 June 2012.  This places an evidentiary onus on the Minister to adduce evidence sufficient to raise doubt about the presumption.  
14.	The Minister submits that the evidence of Ms Ruddy is clearly sufficient to raise “doubt” about the statutory presumption and, furthermore, to demonstrate for the purposes of the Electronic Transactions Act that the facsimile was never capable of being retrieved by the registry.  Ms Ruddy is the Director of Technology Services for the Tribunal and the most senior person employed by the Tribunal with respect to information technology.  In her affidavit of 16 July 2013, Ms Ruddy:
a)	explains the system used by the Tribunal to receive and log facsimile transmissions; 
b)		states that it is not possible to delete a record of a single facsimile transmission on the Tribunal’s log; and
c)		annexes the Tribunal’s receipt logs from 25 June 2012 which shows that the facsimile in question was never received by the Tribunal.
15.	Ms Ruddy was unshaken under cross-examination.  She was clearly a credible witness.  There is no suggestion that the Tribunal’s record of facsimile transmissions has been tampered with.  There is no record of the Tribunal having received the facsimile transmission at the time it was sent.  Other transmissions were received in the Tribunal’s system at around the same time so the likelihood of a malfunction in that system is remote.  Neither does it appear that there was any malfunction in the system used by the applicant’s representative to send the transmission.  Telstra recorded a successful transmission of some 45 seconds and so the likelihood of a malfunction within the Telstra system is also small.  The circumstances are, therefore, mysterious.  I accept that the evidence of Ms Ruddy raises doubt about the receipt of the transmission by the Tribunal.  The more difficult question is whether that doubt is sufficient to overcome the presumption in s.161(1) of the Evidence Act.
16.	The difficult conclusion that I have reached is that sufficient doubt has been raised by Ms Ruddy’s evidence to displace the presumption in the Evidence Act.  Her affidavit and cross-examination provides positive evidence that the transmission was not received in the Tribunal’s system.  This is so notwithstanding that the transmission left the system of the applicant’s representative and was apparently successfully carried through the Telstra system.  The evidence of receipt by the Tribunal relied upon by the applicant is circumstantial.  The evidence of non receipt relied upon by the Tribunal is detailed and, on balance, persuasive.  
Law Reform
17.	I have on several occasions raised concern about the inability of the Tribunal (and the Migration Review Tribunal) to extend the time for lodgement of a review application.  This case shines a bright light on the harsh consequences of that inability.  This is a hard case.  Hard cases make bad law.  Bad law leads to injustice.  In the present circumstances it is left to the Minister to remedy that injustice.
Conclusion
18.	I conclude that the Tribunal did not fall into jurisdictional error in finding that the applicant had not given to or lodged with the Tribunal his review application by the due date.  The Tribunal was therefore correct in finding that it had no jurisdiction.  
19.	I will order that the application filed on 19 December 2012 be dismissed.  
20.	I will hear the parties as to costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:  

Date: 4 April 2014