Perfecto v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2127

FEDERAL CIRCUIT COURT OF AUSTRALIA

Perfecto v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2127    

File number(s):

SYG 1053 of 2021

Judgment of:

JUDGE STREET

Date of judgment:

11 August 2021

Catchwords:

 MIGRATION - Administrative Appeals Tribunal – where the applicant was outside the Migration zone at the time of visa cancellation – whether the Tribunal had jurisdiction to review the delegate’s decision – no arguable case for relief claimed – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

 Migration Act 1958 (Cth) ss 116, 338(3)

Federal Circuit Court Rules2001 (Cth) r 44.12

Australian Constitution  s 75(5)

Number of paragraphs:

13

Date of hearing:

11 August 2021

Place: 

Sydney

Solicitors for the Applicant:

In person

Solicitors for the First Respondent:

Ms J Strugnell, Minter Ellison

ORDERS

SYG 1053 of 2021

BETWEEN:

MARLOWE JAMES PERFECTO
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	11 AUGUST 2021

THE COURT ORDERS THAT:

1.The application is dismissed under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2.The applicant to pay the first respondent’s costs fixed in the amount of $3,737.00

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is a show cause hearing under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) in relation to a decision of the Administrative Appeals Tribunal (“the Tribunal”), dated 1 June 2021, which found that it did not have jurisdiction in respect of an application for review of the cancellation of the applicant’s Student Temporary (Class TU) visa (“the Visa”), under s 116 of the Migration Act 1958 (Cth) (“the Act”) made by a delegate of the first respondent (“the delegate”) on 23 August 2018.

   THE TRIBUNAL DECISION

2. The Tribunal identified the relevant provisions in relation to jurisdiction and identified departmental records which identified that the applicant departed the jurisdiction on 22 August 2018.

3. The Tribunal sent the applicant a notification letter identifying that the applicant did not have a right of review because he was outside the migration zone at the time of cancellation.

4. On 6 May 2021, the applicant was sent a further notification which confirmed that he was outside the Migration Zone at the time of cancellation.  The applicant provided a detailed response to this notice and sought to explain personal circumstances and difficulties he had encountered in relation to his immigration papers and why he had returned home to the Philippines.

5. The Tribunal acknowledged that the applicant had suffered some trauma and had health issues and that the applicant had experienced a number of financial difficulties. However, the Tribunal identified correctly that it had no discretion in relation to these proceedings, as the applicant was not in the migration zone at the time of cancellation. The decision is not a reviewable decision within the meaning of s 338(3) of the Act.  Accordingly, the Tribunal held that it did not have jurisdiction.

   BEFORE THE COURT

6. The applicant commenced these proceedings on 8 June 2021. The applicant has filed an affidavit and other documents seeking to explain his personal circumstances. The matter was listed today for a show-cause hearing under r 44.12 of the Rules.

7. The applicant contended that there was an error not made by the Tribunal but rather made by the delegate.  This Court has no power to review the delegate’s decision.  Any issue of error by the delegate is irrelevant and does not identify an arguable case of relevant error by the Tribunal.

8. The applicant also identified that the Minister had been joined as a party to the proceedings.  That is because of the nature of the jurisdiction being exercised, being s 75(5) of the Australian Constitution, prerogative relief jurisdiction, which allows for review by this Court of the Tribunal’s decision.  The joinder of the Minister does not give rise to an entitlement by the applicant to seek to agitate the delegate’s decision.  This Court has no power to do so, and the applicant’s reference to the first respondent does not identify an arguable case of relevant error by the Tribunal.

9. The applicant also contended that compelling and compassionate circumstances should be taken into account.  That was an issue that only arose if the Tribunal had jurisdiction.  The applicant’s reference to compelling and compassionate circumstances does not identify any arguable case of relevant error.  Nothing said by the applicant identified any arguable jurisdictional error and nothing in the applicant’s additional documents or affidavit identifies any arguable jurisdictional error. The Court has no power to determine the matter on compassionate or discretionary grounds. 

   THE GROUNDS

10. The grounds in the originating application are as follows:

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

    2.   We have decided that we have no jurisdiction to determine your application. This means that we cannot review the decision of the delegate of the Minister.

    3.   Visa cancellation

    4.   I am writing this letter because I would like to request for an Application for Review and a reconsideration on the decision made regarding the Cancellation of my Student Visa.

    5.   I am a victim of abuse and human trafficking. I am severely traumatized. I suffered Psychologically, Spiritually, Emotionally, and Physically. I am a Human Rights and Social Justice Advocate and I continuously seek justice after all that happened to me plus the cancellation of my visa in Australia.

    6.   I would like to inform you that the person who sponsored me to come to Australia in August 2016 had abused me. His name is Anthony John Cummins, a De La Salle Brother. It was difficult for me to report it because he is a Religious Brother and I came from a De La Salle School. As I have mentioned in my previous email, I had suffered from domestic violence and homelessness. I had to work as a house helper in exchange of a free accommodation outside the house, a storage room. I had lived in different short-term accommodations and have been couchsurfing from different people. I had also suffered from exploitation at the workplace. Especially my very first employer who requested me to work for long hours but didn't provide me my salary pay. I can provide you with all the necessary documentation and evidences.

    7.   One challenge that I greatly faced when I arrived in Australia, I had to do jobs that I have never done in my entire life such as to work as a cleaner and cleaned the toilets. I even had to do a job in a salon which required me to wash the hair of the customers because I can only do as much as light work as this.

    8.   I was fully aware of the notifications sent to me by the Department of Immigration and Border Protection prior to the cancellation of my visa in which I have complied and replied to the emails I have received. I have mentioned in my previous email that I wasn't ready to go back to my home country because of the many unfortunate events that happened to me until such time that some of these issues would be resolved. The primary reason why I had to fly back home was because I was admitted and hospitalized at the Royal North Shore Hospital in North Sydney prior to me departing Australia. I didn't have any support from anyone during that time. It was a very difficult moment for me. On my discharge day, I found an accommodation in Waverton where I had to pay $300/ week. I was running out of cash and I haven't been working for quite some time. I didn't have any option but to go and see my family as I needed their support at that time. When I flew home, I didn't get a full refund of rental payment from Robert Mavric who was the head tenant in Waverton. This also happened to me when I was living in Chatswood prior to my admission in the hospital. I didn't get a refund of rental payment which I haven't used.

    9.   The next day when I flew back home, I received an email from the Immigration that my visa was canceled. I never failed to notify the Immigration of any change in my circumstances may it be from passport and to address change. And I was surprised that my visa was already canceled. Because of this, I was not able to get all my things in Australia. I have applied instead of another visa with completed health and medical requirement last September 2018 only to be refused.

    10.   I am humbly pleading for mercy in your good office on my request for an Application for Review and a reconsideration on the decision made regarding the Cancellation of my Student Visa. I have been using only my credit card which is now maxed out due to the foreign currency exchange rates. I also used this in paying for the Medical requirement and Visa application fee in Australia.

11. The applicant’s grounds seek to re-agitate an alleged error by the department and do not identify any basis upon which it could be said that the Tribunal’s decision, that it had no jurisdiction because the applicant was out of the migration zone, was the subject of an arguable jurisdictional error. 

12. No arguable case of relevant error is disclosed by the grounds in the application. The Court is not satisfied the application has raised an arguable case for the relief claimed. The Court is satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

13. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 11 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 8 November 2021