Federal Court of Australia BTI15 v Minister for Immigration and Border Protection (No 2) [2021] FCA 355 Appeal from: Application for an extension of time to file a notice of appeal: BTI15 v Minister for Immigration and Border Protection [2020] FCA 681 File number: NSD 1043 of 2020 Judgment of: ALLSOP CJ Date of judgment: 13 April 2021 Catchwords: PRACTICE AND PROCEDURE – application for an extension of time to file a notice of appeal from a decision of the Federal Court dismissing an application for relief under s 39B of the Judiciary Act 1903 (Cth) – where delay due to Covid-19 pandemic and applicant's mental illness – whether proposed grounds of appeal lack sufficient merit – extension of time granted MIGRATION – application for an extension of time to file a notice of appeal from a decision of the Federal Court dismissing an application for relief under s 39B of the Judiciary Act 1903 (Cth) – where primary judge dismissed application for judicial review of orders made by the Federal Circuit Court of Australia dismissing an application pursuant to s 477(2) for an extension of time to file an application for judicial review of a decision of the Refugee Review Tribunal – where Refugee Review Tribunal affirmed decision to refuse applicant a protection visa – where Federal Circuit Court judge reasoned that given the significant delay it would only be in the interests of the administration of justice to grant an extension if the applicant's case was exceptional – whether Federal Circuit Court judge made a jurisdictional error – extension of time granted Legislation: Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 477(2) Federal Court Rules 2011 (Cth) rr 36.03, 36.05 Cases cited: BTI15 v Minister for Immigration & Anor [2016] FCCA 2326 Gallo v Dawson [1990] HCA 30; 93 ALR 479 Re Commonwealth; Ex parte Marks [2000] HCA 67; 177 ALR 491 Vella v Minister for Immigration and Border Protection [2015] HCA 42; 326 ALR 391 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 17 Date of hearing: 13 April 2021 Counsel for the Applicant: Mr J Williams Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Mills Oakley Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 1043 of 2020 BETWEEN: BTI15 Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: ALLSOP CJ DATE OF ORDER: 13 APRIL 2021 THE COURT ORDERS THAT: 1. On or before 23 April 2021, the applicant file and serve a notice of appeal from the orders and judgment of the Court delivered on 20 May 2020 in such form as the applicant considers appropriate. 2. The applicant's costs be costs in the appeal. 3. The first respondent's name be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ALLSOP CJ: 1 This is an application to extend time to file and serve an appeal against orders made by a judge of the Court in dismissing an application under s 39B of the Judiciary Act 1903 (Cth) which had sought to quash a decision of the Federal Circuit Court of Australia. The Federal Circuit Court had refused to extend time under s 477(2) of the Migration Act 1958 (Cth) to permit judicial review of a decision of the Refugee Review Tribunal on 28 August 2014 that had affirmed a decision of a delegate of the first respondent (the Minister) on 29 July 2013 to refuse a protection visa. May I say at the outset that some of the delay in what has occurred is explicable by circumstances which it is unnecessary to touch upon and does not necessarily reflect on either the slowness of the Department or the Minister, or of the applicant or those acting for the applicant. 2 The application for the extension of time before the Federal Circuit Court was made almost a year out of time. The applicant's explanation for that delay was contained in an affidavit prepared by counsel acting on a direct access basis. The Federal Circuit Court judge found that affidavit inadequate in [11]–[14] of his Honour's reasons, BTI15 v Minister for Immigration & Anor [2016] FCCA 2326: 11. In my view, the applicant has not given any reasonable excuse for the significant delay in these proceedings. For instance, while he relies predominantly on his history of mental illness, the medical certificate indicating that he received treatment at a psychiatric and addiction hospital related to a period in January 2012 in Egypt. The applicant says that he was hospitalised on four separate occasions prior to that due to his mental instability, but there is no evidence of any instability at all in Australia, where the applicant has been since January 2013 when he arrived here on a tourist visa. 12. Further, the applicant has not given any evidence of how that mental illness might have impacted on his ability to appreciate and take action upon the consequences of the Tribunal's decision and, in particular, what steps he might do in order to address his dissatisfaction with it. Counsel for the applicant said in submissions, although this was not supported by evidence, and counsel for the Minister asked the Court to accept, that the applicant had, instead of seeking judicial review, made an application to the Minister for intervention under s.417 of the Act. 13. I do not consider, even if that were to be accepted, that that is a reasonable excuse. It does reveal however, that the applicant was able to obtain some advice about steps that can be taken under the Act in connection with the adverse decision of the Refugee Review Tribunal. It may be that such assistance was obtained from the applicant's brother and sister, who appear from the material before the Court to be resident in Australia. 14. Some importance is also that the applicant's evidence contains no explanation of what steps were taken in order to obtain advice. There is nothing to say, for example, that the applicant actually tried to obtain legal advice, whether free or paid, and that those attempts were unsuccessful. I infer that possibly upon the rejection of the application under s.417 and until the very late stage, the applicant took no steps to seek advice concerning judicial review or any other step apart from the s.417 application in connection with the decision of the Tribunal. 3 It can be accepted that the evidence was sparse. At [3]–[9] of his affidavit, the applicant gave the following explanation, which was set out in [10] of the Federal Circuit Court judge's reasons: The applicant's evidence as to the reasons for his delay was given by an affidavit which was read without objection and upon which the applicant was not cross-examined. That affidavit explained: … 3. The application was filed on 31 August 2015 and is out of time by 10 months and 29 days. 4. I have been suffering from a history of mental illness. I was diagnosed with mental illness and hospitalised on 18 January 2012 and spent 10 days in a Psychiatric and Addiction hospital. 5. Annexed and marked with the letter 'B' is a true copy of the report by El Nozha Hospital. 6. I was hospitalised on 4 separate occasions prior to this due to my mental instability. 7. During my RRT proceedings I did not have a representative. I attended the Tribunal on my own and did not seek any advice. 8. I was not aware that I could lodge an application for judicial review when my RRT appeal was unsuccessful. 9. I suffer from mental illness which has contributed to my inability to obtain proper legal advice in order to pursue judicial review. 4 It is not the Court's place to act as a guide or an advocate for a represented party, but the affidavit did present evidence of illness (see [4] of the affidavit set out above). Some detail might have been expected either from counsel or as prompted by the Court. This is reinforced by the applicant's claim that serious mistreatment and torture in an Egyptian prison brought on or exacerbated the serious mental illness. Thus, for the purposes of consideration of the interests of justice, the claim can be seen to be made by an indigent person, possibly seriously mentally ill, unable to read or speak English who was not represented before the decision maker. 5 The Federal Circuit Court judge approached the task of the extension of time under s 477(2) framed by the terms of [9] of his reasons as follows: In my view, it falls into the category discussed in authorities such as Vella v Minister for Immigration & Border Protection [2015] HCA 42, where his Honour Gageler J said, that given the delay he would only reach a state of satisfaction required by the Act were he to be persuaded that the applicant's case was exceptional. His Honour there referred to the decisions in Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470 at 474, [13]; [2000] HCA 67 citing Gallo v Dawson (1990) 64 ALJR 458 at 459. 6 At [15] of his reasons, the Federal Circuit Court judge said the following: That fact, together with the extreme delay, weighs very heavily against the applicant. In my view, it would require significantly strong grounds of review in order to overcome both of those matters. 7 His Honour then turned to the grounds of the application and, after a careful examination, he considered them to be of little, if any, merit. 8 The primary judge did not disagree with the analysis of the merits of the appeal: BTI15 v Minister for Immigration and Border Protection [2020] FCA 681. Importantly, the primary judge rejected the attack that was made on [9] of the Federal Circuit Court judge's reasons, in which he framed the analysis of the discussion of s 477(2). At [16] of his reasons, the primary judge said: As for delay, the Circuit Court judge noted that the delay was almost 11 months, which was "more than a significant delay": Judgment at [8]. His Honour reasoned that, given the significant delay, the applicant's case fell into the category of cases where the Court would only be satisfied that it was necessary in the interests of the administration of justice to grant an extension if the applicant's case was "exceptional": Judgment at [9]. His Honour referred, in that context, to the judgment of Gageler J in Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391; [2015] HCA 42 and two other judgments that were cited in that judgment. 9 In my view, there is an important question underlying the treatment of s 477 by the Federal Circuit Court judge at [9] and by the learned primary judge at [16]. If I respectfully say so, danger often lies in the reduction to simple expression of multifactorial evaluations and assessment of sometimes contradictory and conflicting considerations. 10 Ultimately, the question of extension of time in provisions such as s 477(2) resolve into an overall question of the interests of justice. The cases in the Court dealing with an extension of time are well known. I think, however, there is a real question here. This is not a leave application, but one as to whether time should be extended to allow the approach of the learned primary judge to be tested by the Full Court. I do not intend to express any views one way or the other about the correctness ultimately of the application of principle by the learned primary judge. But the question of the legitimacy of categorisation or taxonomical analysis expressed in the Federal Circuit Court judge's reasons and the learned primary judge's reasons is a live issue. I say that with the fullest understanding of the source of the short passage of principle from the judgments of Gageler J in Vella v Minister for Immigration and Border Protection [2015] HCA 42; 326 ALR 391 at 392 [3] and McHugh J in Re Commonwealth; Ex parte Marks [2000] HCA 67; 177 ALR 491 at 495 [13] and Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 480–481. The full contextual understanding of what their Honours expressly said can be understood to be quite different from the context of this applicant. The context of Mr Vella, for instance, in the case decided by Gageler J does not easily allow the creation of a default category of cases to be easily or mechanically applied, which is the danger in analysis under s 477(2). Here, the delay was perhaps questionable, but its asserted reason was deeply troubling: mental illness said to be derived or exacerbated from torture in a foreign prison of an indigent, illiterate person who asserts the right of protection of this country. I will say no more about that issue. 11 The question of being out of time in this Court has another dimension. The reasons and orders of the learned primary judge were handed down and made on 20 May 2020 in the height of the Covid-19 pandemic last year. Counsel, acting pro bono for the applicant, was in the Northern Territory with his family and for a considerable period of time, from March to July last year, was unable to come from the Northern Territory to attend to his practice or to communicate effectively. 12 The evidence before me about the mental illness of the applicant is still sparse but adequate for present purposes to understand at least the following. The applicant's brother, a security officer, is his carer. The applicant was housed for treatment at a mental institution in Sydney at Cumberland Hospital in July and August last year. The Minister's counsel, Mr Swan, accepts that it can be taken that to be housed at the institution identified in the evidence betrays or reveals some significant seriousness in the condition of the applicant. The applicant was described by his counsel in submissions as suffering from schizophrenia, bipolar disorder and depression. 13 Given the wreckage produced last year in timetables and procedures by the Covid-19 pandemic, I do not think that delay and the lack of explanation for delay should stand in the way of an extension of time. In fairness to the Minister, he quite properly did not put that submission to me, recognising both what the legal profession and the courts have had to deal with in the last year, as well as straightforwardly and frankly recognising the seriousness of such evidence as has been led about the applicant's mental illness. 14 There have been various iterations of the notice of appeal that have come forward. I am not sure, with great respect, that these notices of appeal properly articulate any failure by the learned primary judge to identify jurisdictional error on the part of the Federal Circuit Court judge in his rejection of the application to extend time for the application for review in the Federal Circuit Court. 15 I do not think it is productive of the Court's or practitioners' time today to argue about the form of the notice of appeal. To the extent that useful debate can be had about that, it can perhaps be adjourned to another day. What I propose to do is to grant an extension of time up to 23 April 2021 in which to file and serve a notice of appeal from the orders made by the learned primary judge on 20 May 2020, in such form as the applicant considers appropriate. 16 It should be noted that the application for an extension of time was first made on 11 September 2020. The listing of matters of represented and unrepresented litigants in migration cases has been drastically affected by Covid-19 and the Court is trying to prioritise the matters by conducting hearings using remote technology. 17 The applicant's costs will be costs in the appeal. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop. Associate: Dated: 13 April 2021