Section 477 Migration Act provides a 35 day time limit on an appeal to the (former) Federal Circuit Court. Unlike reviews in the AAT that time can be extended if its “necessary in the interests of the administration of justice” to do so. In BTI15 v Minister [2022] FCAFC 49 the Applicant was 10 months and 29 days out of time. 

The longer the time, the more  “exceptional” the circumstances have before the court will grant an extension. BTI15’s explanation was that he had a history of mental health issues and had been hospitalised for mental illness. One may think that this would be considered an “exceptional” circumstance. Unfortunately for the Applicant, there was no clear evidence as to how his mental illness and hospitalisation prevented him from obtaining legal advice in a timely manner. The Court also noted that a consideration of the merits of the case was a factor to be taken into account, but with a long delay, “strong grounds” would be required. No strong grounds were found.

Ultimately the appeal was dismissed, there was nothing “exceptional” in BTI15’s case that would warrant a 11 month extension of time. The case is a useful discussion of how the jurisdiction in s477 should be exercised. However, better to avoid 477 at all if possible. Life will be a lot easier if you do things on time.

Creative commons acknowledgment for the photograph.


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