Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs

ALLSOP CJ: 1 This is an application for an extension of time in which to file a notice of appeal against orders made by the Federal Circuit Court on 18 June 2018 dismissing an application for judicial review. The applicant filed his application for an extension of time and supporting affidavit four days out of time. The fundamental consideration in these circumstances is whether or not there is any appropriate basis for allowing an appeal to go forward, the lateness of time being such a short period. 2 It is unnecessary to go into the factual material in huge detail. The applicant is a citizen of Peru. He arrived in Australia in 2012, having travelled the world for over a decade, working in many different countries and studying. He decided to pursue a career and studies in cooking so he might return to Peru where his parents live. 3 In March 2016, the applicant applied to the first respondent for a Student (Temporary) (Class TU) visa. He was asked to provide additional information. 4 In August 2016, the delegate of the Minister refused to grant a visa. The Tribunal affirmed that decision and the Federal Circuit Court dismissed an application for judicial review. 5 It is inappropriate for me to express final views on the various grounds. I am concerned about at least two of the grounds, being grounds 3 and 4, which involve a finding of fact by the Tribunal which is accepted to be wrong. 6 The question is whether that finding was central and had such a degree of influence over the decision that it can be found to be jurisdictional error, there being no doubt that there was no evidence to support the finding of fact. 7 I was also most concerned about the question of the finding by the Tribunal not to look at further information that had been sent by Mr Acuna Plaza. It may be that my concerns that the Tribunal was not functus have been overcome by the amendment to s 368 of the Migration Act 1958 (Cth) by the insertion of sub-s 368(2A). Nevertheless, my attention was brought to the, if I may respectfully say so, helpful decision of Judge Wilson in the Federal Circuit Court Chhor v Minister for Immigration & Border Protection [2017] FCCA 2135 as to the operation of s 368(2A). It may be that point has no merit. 8 Nevertheless, in circumstances where Mr Acuna Plaza is presently unrepresented, I do not propose to cut and paste his draft notice of appeal and only give an extension of time for some of it. I propose to extend the time in which Mr Acuna Plaza has to file and serve a notice of appeal. I will extend that time to 14 December 2018. I also propose to make directions for the appointment of pro bono counsel in relation to Mr Acuna Plaza's appeal. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.