Perfecto v Minister for Immigration, Citizenship and Multicultural Affairs

CONCLUSION IN SUMMARY FORM 3 Mr Perfecto appeared remotely via the Microsoft Teams platform to present his application. In doing so, he was polite and respectful both in addressing the Court, and in addressing counsel appearing for the Minister, notwithstanding the obvious and genuine distress he experienced in recounting the experiences he has endured. The Court recognises that, in presenting his application, he has done his best to assist the Court in making what is a difficult decision. Unfortunately, even though Mr Perfecto's appeal to the compassion and mercy of the Court based on his account of his experiences and his explanation for his failure to comply with the conditions on his student visa is powerful, the Court does not have power to decide this application on compassionate grounds. 4 Having regard to the applicable principles in relation to the grant of leave to appeal, I have concluded that leave must be refused. I am not satisfied that the decision of the primary judge is attended by sufficient doubt to warrant its reconsideration. In the circumstances, which are more fully addressed within, I am not satisfied that, even assuming the primary judge to be wrong, refusing leave to appeal would result in substantial injustice. It follows that leave to appeal must be refused. The Minister will have an order for costs. My reasons follow.

BACKGROUND 5 Mr Perfecto was granted a student visa on 23 February 2017. 6 On 12 March 2018, the Department of Home Affairs sent Mr Perfecto a Notice of Intention to Consider Cancellation (Intention Notice). By that Intention Notice, Mr Perfecto was informed that the Department believed that he had breached condition 8202, which applied to his student visa, in that he had failed to maintain enrolment in a full-time registered course of study. Condition 8202 relevantly requires a student visa holder to adhere to certain course enrolment, attendance and academic progress requirements. In the Intention Notice, the delegate informed Mr Perfecto that based on the information maintained in the Provider Registration and International Student Management System (PRISMS), he did not appear to have been enrolled in a full-time registered course since 19 May 2017 and, accordingly, did not appear to meet visa condition 8202(2)(a) which requires the visa holder to be enrolled in a full-time registered course. Mr Perfecto was invited to respond commenting on the grounds for cancellation, and putting forward reasons why his visa should not be cancelled. 7 On 13 March 2018, Mr Perfecto responded to the Intention Notice. He did not expressly address the allegation of breach of condition 8202, but did not dispute the allegations regarding his enrolment. He sought to put forward mitigating circumstances by way of explanation. He said he had been a victim of human trafficking and had suffered violence and abuse in Australia. Mr Perfecto provided supporting material in follow up emails on 16 May 2018. 8 The Tribunal identified departmental records which recorded that Mr Perfecto left Australia on 22 August 2018. At the time he left he was experiencing dire financial distress and episodes of acute mental illness (including psychosis and severe emotional dysregulation) for which he had been hospitalised. 9 On 23 August 2018, the delegate cancelled Mr Perfecto's visa.

THE DELEGATE'S DECISION 10 The delegate was satisfied that there were grounds to cancel the student visa under s 116(1)(b) of the Migration Act on the basis that Mr Perfecto had not complied with visa condition 8202(2)(a). Section 116(1)(b) enables the Minister to cancel a visa if satisfied that the holder has not complied with a condition of the visa. 11 As noted, condition 8202(2)(a) requires the visa holder to be enrolled in a full-time registered course. In the Notice of Cancellation (Cancellation Notice) dated 23 August 2018, the Department attached the decision record of the delegate, and again noted that Mr Perfecto had not been enrolled in a full-time registered course of study since 19 May 2017. The delegate was therefore satisfied that Mr Perfecto had not met the requirements of condition 8202(2)(a) and that the ground for cancellation of Mr Perfecto's student visa under s 116(1)(b) of the Migration Act was available. In the Cancellation Notice, after weighing up all of the information available, the delegate concluded that the reasons for cancelling Mr Perfecto's student visa outweighed the reasons for not cancelling it. Mr Perfecto was also informed that he did not have the "right of merits review by a Tribunal [sic]" because he was outside the migration zone at the time of cancellation.

THE TRibunaL'S DECISION 12 On 22 February 2021, Mr Perfecto applied to the Tribunal for review of the delegate's decision. He did so notwithstanding that, by the Cancellation Notice, the delegate had informed him that there was no right of merits review by the Tribunal. 13 On 6 May 2021, the Tribunal wrote to Mr Perfecto inviting him to comment by 20 May 2021 on its view that it did not have jurisdiction to review the cancellation of his student visa because at the time of cancellation he was outside of the migration zone. 14 Relevantly, the Tribunal has jurisdiction to review a decision under the Migration Act if an application is properly made under ss 347 or 412 of the Migration Act. Sections 338 and 411 of the Migration Act and r 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable by the Tribunal and relevantly include a decision to cancel a student visa, except where the cancellation decision is made when the applicant is outside the migration zone: s 338(3) of the Migration Act. 15 On 6 May 2021, Mr Perfecto emailed the Tribunal, attaching a number of medical documents and a detailed submission in which he said he had been a victim of trafficking and sexual assault and was severely traumatised. Mr Perfecto did not challenge that he had been outside of the migration zone at the time his student visa was cancelled. 16 On 1 June 2021, the Tribunal decided that it did not have jurisdiction to review the cancellation of Mr Perfecto's student visa because Mr Perfecto was outside the migration zone at the time of cancellation: s 338(3) of the Migration Act (at T [11]). The Tribunal noted that departmental records indicated that Mr Perfecto departed Australia on 22 August 2018, prior to the delegate's decision. In reaching its conclusion, The Tribunal had regard to Mr Perfecto's response to the invitation to comment (at T [6] to [9]) and said (at T[10] to [11]): [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.

PRIMARY JUDGE'S DECISION 17 By application filed on 8 June 2021, Mr Perfecto sought judicial review of the Tribunal's decision. 18 On 28 June 2021, the Minister filed an application for summary dismissal pursuant to r 13.10 of the FCC Rules, on the basis that the application had no prospect of success. 19 By orders of the Court made on 1 July 2021, the application was listed for "summary dismissal and or a hearing under r 44.12 of the [FCC Rules] at 9.30am on 11 August 2021" by Microsoft Teams. 20 On 11 August 2021, the primary judge made orders dismissing the application pursuant to r 44.12 of the FCC Rules, with costs. 21 At the time of the primary judge's decision, the now-repealed r 44.12 of the FCC Rules provided that, at a hearing of an application for an order to show cause, the Court may, if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application (r 44.12(1)(a)) and that such a dismissal is interlocutory (44.12(2). 22 The primary judge gave ex tempore reasons for judgment on 11 August 2021, which were subsequently reduced to writing on 8 November 2021. 23 The primary judge noted that before the Court, Mr Perfecto contended that there was an error made by the delegate rather than the Tribunal: PJ [7]. The primary judge said that the Court had no power to review the delegate's decision, and any alleged error by the delegate did not establish an arguable case of error by the Tribunal: PJ [7]-[8]. 24 The primary judge held that the grounds did not identify any basis on which it could be said that the Tribunal's decision, that it had no jurisdiction because Mr Perfecto was outside of the migration zone, was the subject of an arguable jurisdictional error: PJ [11]).

Leave to appeal and draft notice of appeal 25 On 13 August 2021, Mr Perfecto lodged an application for leave to appeal the decision of the primary judge. Given that the decision of the primary judge was to summarily dismiss the review application on the basis of the absence of the Tribunal's jurisdiction to review the visa cancellation, it is not necessary to set out verbatim the 16 proposed grounds of appeal included in the draft notice of appeal. The arguments raised by the proposed grounds of review are considered below.

LEAVE TO APPEAL 26 The principles applicable to an application for leave to appeal from an interlocutory decision are well established and were recently summarised in the following terms by the Full Court in Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5]: …In general, the tests to be applied are: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400 per Sheppard, Burchett and Heerey JJ. The discretion to grant leave is not constrained by rigid rules. Leave to appeal has been granted where, for example, the questions posed for resolution on appeal "have general importance beyond the concerns of the parties": Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at [10] per Heerey, Moore and Tracey JJ. See also ACE Insurance Ltd v Trifunovski (2012) 291 ALR 46 at [7]-[9] per Flick J. 27 The onus lies on the party seeking leave to appeal: SZTKB v Minister for Immigration and Border Protection [2014] FCA 653 at [7]-[8].

CONSIDERATION 28 I am mindful of the difficulties faced by Mr Perfecto as a litigant in person with a very high degree of emotional engagement with the matters in issue, and a lack of familiarity with the processes of the Court. I have taken this into account in considering the submissions he made and in determining the application for leave to appeal. Notwithstanding that it was clearly a very stressful situation for him, Mr Perfecto endeavoured to assist the Court in putting his submissions and in his interaction with counsel for the Minister. Counsel for the Minister performed his task with sensitivity given Mr Perfecto's obvious distress during the hearing. 29 Counsel for the Minister helpfully parsed the proposed grounds raised in the draft notice of appeal in the following way. Proposed ground 1 takes issue with the decision of the primary judge. Proposed grounds 2 to 4 and 9 to 15 take issue with the delegate's decision to cancel Mr Perfecto's student visa. Proposed grounds 5 and 6 complain about the Circuit Court's registry. Proposed grounds 7 and 8 take issue with the decision of the Tribunal. Some of the proposed grounds are in the nature of submissions, that is particularly the case in relation to proposed ground 16, which is, in terms, a plea for mercy and accordingly, I have treated it as a submission.

The primary judge's decision - ground 1 30 As best as I can understand what is intended by proposed ground 1, it appears that Mr Perfecto complains that the procedure before the primary judge was attended by procedural unfairness, in that his application was brought to a head by applications which he did not initiate, namely, the Minister's application for summary dismissal, and the primary judge's initiation of a show cause hearing under r 44.12 of the FCC Rules. Mr Perfecto is correct that the applications which precipitated the dismissal of his claim for review were initiated by the Minister and the Court. However, that does not, of itself, give rise to procedural unfairness. Mr Perfecto was on notice of the applications and was afforded an opportunity to be heard. He did not in his written or oral submissions point to any basis on which the proceedings before the primary judge were procedurally unfair. His complaint was as to the unfairness of the visa cancellation having regard to his personal circumstances, which are described above, and which he believes should have caused the delegate not to cancel his student visa. Seen in this way, proposed ground 1, which overlaps with some of the other proposed grounds, is properly understood as an application for merits review of the cancellation decision and is doomed to failure.

The delegate's decision - proposed grounds 2 to 4 and 9 to 15 31 The relevant paragraph of the primary judge's reasons is as follows (at PJ [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. 32 To the extent that the primary judge found, at PJ [7], that the Circuit Court did not have power to review the delegate's decision, the Minister accepts that the primary judge erred in so doing. The Minister is correct in not seeking to defend this aspect of the primary judge's judgment, if it is to be read in this way. 33 Section 338 of the Migration Act defines decisions made under the Migration Act that are to be regarded as Pt 5-reviewable decisions, and are therefore able to be reviewed under Pt 5. A decision to cancel a visa when the holder is outside of the migration zone is not a reviewable decision: s 338(3) of the Migration Act. Here, because Mr Perfecto was not in the migration zone at the time of the cancellation, the delegate's decision was not reviewable under Pt 5. Accordingly, the decision was not a 'primary decision' for the purpose of s 476(2) of the Migration Act. As a matter of law, the Circuit Court had the power to review the delegate's decision, if Mr Perfecto had filed an application for an extension of time to bring an application for review. The primary judge's finding at PJ [7], if read as a conclusion that the Circuit Court lacked power to review the delegate's decision, was wrong. But it does not give rise to substantial injustice to refuse leave to appeal for the following reasons. First, Mr Perfecto's application for judicial review sought review of the Tribunal's decision only, and not the delegate's decision. Presumably for that reason, in his supporting affidavit Mr Perfecto annexed the Tribunal's decision, and not the delegate's decision. Secondly, Mr Perfecto did not seek an extension of time, which he needed in order to seek a review of the delegate's decision. In this sense, if the primary judge's conclusion is limited to the specific procedural circumstances of this case, then the primary judge was correct to observe that the Circuit Court did not have power to review the delegate's decision given the nature of the application before it - no competent application seeking judicial review of the delegate's decision has ever been filed. 34 While it would have been open to Mr Perfecto to file an application for an extension of time in which to seek judicial review of the delegate's decision, the utility in doing so was questionable after 15 March 2019, which was the date on which Mr Perfecto's student visa would have expired in any event. For this reason, the Minister submits that even if there was jurisdictional error in the decision of the delegate, it would be futile to remit the matter because Mr Perfecto's student visa has since expired and he is not subject to any bar on the making of a new visa application. It is not necessary to reach a conclusion on this submission, in circumstances where I am not satisfied that leave to appeal should be granted in any event. 35 Proposed grounds 2 to 4 and 9 to 15 would not succeed even if leave was granted. Refusing leave to appeal in respect of these proposed grounds does not give rise to substantial injustice.

The Tribunal's decision - proposed grounds 7 and 8 36 Proposed grounds 7 and 8 are directed to the Tribunal's decision. I am not satisfied that the decision of the Tribunal is attended by doubt sufficient to warrant a grant of leave to appeal. Indeed, it is plain that the Tribunal was correct to conclude that it did not have jurisdiction to review the matter. 37 As mentioned above, the Tribunal does not have jurisdiction to review a decision to cancel a student visa where at the time the cancellation decision was made the applicant was outside the migration zone: s 338(3) of the Migration Act. As Mr Perfecto was not in the migration zone at the time of the cancellation on 23 August 2021, having departed Australia on 22 August 2021, the Tribunal did not have any jurisdiction to review the delegate's decision to cancel his student visa.

The Registry of the Circuit Court - proposed grounds 5 and 6 38 Mr Perfecto contends that the lodgement, presumably of his originating application, should not have been accepted for filing and that he filed his application in the Circuit Court because this was the advice given to him by the Registry. The nature of Mr Perfecto's complaint is not entirely clear and he did not address it at the hearing. The application for judicial review was competent on its face such that there was no reason why the Registry would have made an administrative decision not to accept it for filing. There is no evidence before the Court as to any "advice" provided to Mr Perfecto by the Registry. There is nothing in these proposed grounds that gives rise to a conclusion that the leave to appeal should be granted.

CONCLUSION 39 Mr Perfecto's account of his experiences, his health and financial issues naturally evokes sympathy and may explain his failure to comply with the conditions of his student visa. However, the Court does not have power to decide his application on compassionate grounds. For the reasons given, although it is a decision that will necessarily disappoint Mr Perfecto, the application for leave to appeal must be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.