Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs

[2018] FCA 1887

FEDERAL COURT OF AUSTRALIA

Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 1887

Appeal from:	Application for extension of time: Plaza v Minister for Immigration & Anor [2018] FCCA 1641
File number:	QUD 477 of 2018
Judge:	ALLSOP CJ
Date of judgment:	27 November 2018
Catchwords:	MIGRATION – application for extension of time – where certain factual findings by primary judge accepted to be wrong – application granted
Legislation:	Migration Act1958 (Cth) s 368(2A)
Cases cited:	Chhor v Minister for Immigration & Border Protection [2017] FCCA 2135
Date of hearing:	27 November 2018
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	J D Byrnes
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

QUD 477 of 2018

BETWEEN:

VICTOR ANDRES ACUNA PLAZA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	27 NOVEMBER 2018

THE COURT ORDERS THAT:

1.Time be extended in which to file and serve a notice of appeal to be in the form of the draft notice of appeal attached to the application for an extension of time, such filing and serving to be effected on or before 4pm on 14 December 2018.

2.The question of costs of the extension of time application be costs in the appeal.

3.The matter be stood over for directions and case management to 9:30am Brisbane time on 11 February 2018.

THE COURT DIRECTS THAT:

4.The first respondent be named as the Minister for Immigration, Citizenship and Multicultural Affairs in the notice of appeal to be filed by the applicant and the proceedings be so entitled. 

5.On or before 4 December 2018, the District Registrar request the President of the Bar Association of Queensland to nominate a barrister to assist the Court as pro bono counsel for the applicant.

6.Within 1 business day of the President of the Bar Association of Queensland notifying the District Registrar of her nominee, the District Registrar forward the nomination to the chambers of the Chief Justice and the parties.

7.On the nomination being forwarded to the Court, the nominee be granted leave to appear as pro bono counsel for the applicant.

8.Within 5 business days of the grant of leave pursuant to Order 7, the District Registrar, in consultation with the representative of the first respondent, supply the pro bono counsel for the applicant with all relevant material.

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

REASONS FOR JUDGMENT
(Revised from the transcript)

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 Act1958 (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.

Associate: 

Dated:        28 November 2018