FEDERAL COURT OF AUSTRALIA

BTP16 v Minister for Immigration and Border Protection [2018] FCA 180

ORDERS

THE COURT ORDERS THAT:

1.    The hearing of the matter listed on 28 February 2018 at 10:15am in Adelaide is vacated.

2.    The matter be listed for hearing for half a day on 27 April 2018 commencing at 10:15am (AEST) by videolink from Adelaide to Sydney.

3.    By no later than 6 April 2018, the appellant file and serve any proposed amended notice of appeal and any submissions in support of his appeal, such submissions not to exceed 10 pages in length.

4.    By no later than 20 April 2018, the first respondent file and serve any supplementary written submissions not exceeding 10 pages in length in response to any submissions of the appellant referred to in order 3 above.

5.    Costs of today be reserved.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This appeal is from a judgment of the Federal Circuit Court of Australia (FCCA), which is reported as BTP16 v Minister for Immigration and Border Protection [2017] FCCA 1681.

2    The hearing of the appeal was listed for today, 28 February 2018, at 10:15am. Yesterday, the Federal Court Registry was contacted by Mrs Lesley Walker, who said that she had recently been approached by the appellant to act as his personal advocate at the hearing of the appeal. Mrs Walker does not have legal qualifications. I understood that the appellant sought the Court’s leave to have Mrs Walker act as his McKenzie friend (see generally SZRIF v Minister for Immigration and Border Protection [2017] FCA 1161 at [20]-[25] per Bromwich J).

3    The Registry then sent an email to both the appellant and to Mrs Walker advising them that the adjournment request would be heard at 10:15am on 28 February 2018, and that either or both of them should attend for that purpose. They were also advised that any additional evidence should be provided to the Court in support of the adjournment request, and that they should be prepared to argue the substantive appeal in the event that the adjournment request was rejected.

4    The appellant appeared today with Mrs Walker, who described herself as a person deeply involved in asylum seeker issues. The Minister for Immigration and Border Protection (the Minister) did not object to Mrs Walker acting as the appellant’s McKenzie friend.

5    Mrs Walker indicated that while she was in a position to address the Court in support of the appellant’s request for an adjournment of the hearing, she was not sufficiently familiar with the matter to present any arguments on the substantive appeal.

6    The Court considered that it was in the interests of justice to permit Mrs Walker to act as a McKenzie friend to the appellant.

7    The appellant relied on two letters from medical practitioners. The first was a letter dated 17 February 2018 by Mr Khodadad Mikhchi, who described himself as a psychologist and an accredited practitioner of the Eye Movement Desensitisation and Reprocessing Association of Australia (EMDRAA). He said he was a registered psychologist with Medicare, held tertiary qualifications in psychology, and was a registered psychologist with the Australian Health Practitioner Regulation Agency and Psychology Board of Australia. Mr Mikhchi said that he had known the appellant since February 2016 and had provided some treatment to him for PTSD, but that the appellant did not complete the course of treatment because his Medicare card expired. Mr Mikhchi said that the appellant’s GP had made a second referral in February 2018. He added that the appellant “suffers from extremely severe depression, anxiety and stress” and that the appellant required further assessment and treatment. He said that the appellant “could benefit from undertaking psychological intervention sessions as well as the pharmaceutical management of his symptoms with his general practitioner prior to attending at the Federal Court Australia [sic]”.

8    Mrs Walker relied upon another letter 20 February 2018 by Dr Reza Parsa MBBS, FRACGP. The letter, which is addressed “To whom it may Concern”, said that the appellant “suffers from severe stress, anxiety and depression and PTSD”. Dr Parsa added (without alteration):

“His condition has aggravated by proceeding court hearing in relation to his visa status. I believe he needs urgent psychological intervention,therefore I arranged mental health care plan and referred him to a psychologist for counselling.

In my view he is psychologically unfit to present in court due to his high level of anxiety.”

9    Mrs Walker said it was in the appellant’s interest for him to obtain pro bono legal representation to assist him in his appeal. She believed there were reasonable prospects that a suitable legal practitioner in Adelaide would accept the pro bono brief. She indicated an adjournment of two months was required for this to occur.

10    The request for an adjournment was opposed by the Minister on various grounds, including the shortcomings of the medical evidence relied upon by the request, primarily being the absence of any particulars of the proposed medical treatment, or when it was expected that the appellant would be able to conduct his case. The Minister submitted that it may be that the appellant’s grounds of appeal would not be improved if an adjournment of two months was granted. He referred to s 37M of the Federal Court of Australia Act 1976 (Cth) and the contents therein regarding the overarching purpose of civil practice and procedure provisions.

11    I accept the Minister’s submission that there are some unfortunate deficiencies in the medical evidence presented. Nevertheless, I have been presented with an opinion by a GP who opines that the appellant is “psychologically unfit to present in court”, which I presume is a reference to his inability to present his case in court due to his high levels of anxiety. I took into account that while ideally the matter should have proceeded today with Mrs Walker presenting the appellant’s arguments on appeal, she had frankly said that she is unable to do that because of her lack of familiarity with the appellant’s legal case. I think it is in the interests of the due administration of justice for the appellant to have a brief opportunity to obtain pro bono legal assistance.

12    The matter should be adjourned for a period of no more than two months. Directions will be made to ensure that the matter will proceed in about two months’ time. Both parties indicated that they would be content for the hearing of the appeal to proceed by way of a videolink between Sydney and Adelaide.

13    For these reasons, the hearing of the appeal is adjourned. Costs of today are reserved. The appeal will proceed by way of videolink to Sydney at 10:15am AEST on Friday, 27 April 2018. By no later than 6 April 2018, the appellant must file and serve any proposed amended notice of appeal and any submissions in support of his appeal, such submissions not to exceed 10 pages in length. By no later than 20 April 2018, the first respondent is to file and serve any supplementary written submissions in response to the submissions of the appellant just referred to, the Minister’s submissions not to exceed 10 pages in length.

Associate:

Dated:    28 February 2018