Perfecto (Migration)

[2021] AATA 3143

Perfecto (Migration) [2021] AATA 3143 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Marlowe James Perfecto

CASE NUMBER:  2102062

DIBP REFERENCE(S):  PNJ

MEMBER:Jane Marquard

DATE:1 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 01 June 2021 at 1:01pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – jurisdiction to review – outside migration zone when visa cancelled – financial and personal difficulties and mental health treatment – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 338, 411
Migration Regulations 1994 (Cth), r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 22 February 2021 for review of a decision dated 23 August 2018 to cancel the applicant’s Student (Temporary) Class TU (Student) (Subclass 500) visa under s.116 of the Act.

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

3. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. These include a decision to cancel a student visa, but they do not include a decision to cancel a student visa when the applicant is outside the migration zone at the time of cancellation (s.338(3) of the Act).

4. Departmental records and the notification letter from the Department dated 23 August 2018 indicate that the applicant departed Australia on 22 August 2018. In the notification letter dated 23 August 2018 the applicant was notified that he did not have the right of review to the Tribunal as he was outside the migration zone at the time of cancellation.

5. On 6 May 2021 the Tribunal wrote to the applicant to notify him that it appeared that it did not have jurisdiction to review his matter as he was outside the migration zone at the time of cancellation. He was invited to provide comments on this issue.

6. On 6 May 2021 the applicant provide a detailed response. He said that he had been a victim of sexual abuse and human trafficking and was severely traumatised. He said that he is a human rights and social justice advocate and would seek justice for what had happened in Australia. He said that the person who sponsored him to come to Australia in August 2016 was a De La Salle Brother and he reported him, which was difficult. He said that he suffered from domestic violence and homelessness, as well as exploitation in the workplace. He said that he found it difficult working to clean toilets and washing hair in a salon.

7. He said that he did not work in 2016 as he was processing his immigration papers. He said he was promised work and volunteer work in Australia, but it did not happen. He said that he started work in 2017 when he received work rights, but had to take time off to recover.

8. He went on to claim that he was not ready to return to his country until he had resolved issues in Australia. He said that the primary reason he flew back home was because he was admitted and hospitalised and had no support in Australia. He had found it difficult to pay rent. He said that when he returned home he received an email from the Department notifying him that his visa was cancelled. He has not been able to get all his things form Australia. He requested a reconsideration of the decision to cancel his visa. He said that he started work in October 2018 but in 2019 has had to take time off to recover. He has had ‘flashbacks of what happened to me in Australia’. He said that he relocated to New Zealand in March 2019 and returned to the Philippines in December 2019. He said that he has been in and out of hospital since January 2020. He said that he is still receiving treatment and recovering from what happened to him in Australia.

9. He provided a copy of a letter from a Social Worker at the Northern Area Sexual Assault Service. She said that the applicant presented at the Service on 17 August with a case worker from the Community Mental Health Service. The applicant disclosed to the Social Worker that he had been sexually assaulted between the ages of 25 and 26. He provided ‘limited information’ about the assault or impact, however noted he was experiencing low mood. There was no further contact with him. The applicant also provided an assessment dated 3 August 2018 from the Northern Sydney Local Health Service. In this assessment it was noted that the applicant had presented to hospital under police section after threatening flatmates and had been treated with medication. The applicant also provided a number of assessment documents from the Mental Health Unit, Lower North Shore Community Health in August 2018 detailing his condition and progress.

10. The Tribunal acknowledges that the applicant has suffered trauma and has had medical treatment for a number of health issues. The Tribunal also acknowledges that the applicant experienced a number of financial and other difficulties while living in Australia. However the Tribunal does not have discretion in this matter. The legislation states clearly which matters are reviewable by the Tribunal.

11. As the applicant was not in the migration zone at the time of the cancellation, the decision is not a reviewable decision (s.338(3) of the Act). It follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

12. The Tribunal does not have jurisdiction in this matter.

    Jane Marquard
    Member