Hernandez Calderon (Migration)

[2021] AATA 2977

Hernandez Calderon (Migration) [2021] AATA 2977 (21 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juan Pablo Hernandez Calderon

CASE NUMBER:  2106336

DIBP REFERENCE(S):  BCC2020/2657142

MEMBER:Joseph Lindsay

DATE:21 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Class FA Subclass 600 Visitor visa.

Statement made on 21 July 2021 at 3:45pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – no substantive visa at the time of application – mental health issues – impact of the COVID-19 pandemic – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 600.223; Schedule 3 Criterion 3001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 April 2021 to refuse to grant the visa applicant a Visitor (Class FA) Subclass 600 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 November 2020. The applicant attended the Tribunal by audio on 22 June 2021 to give evidence and present arguments.

3. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the applicant satisfies Schedule 3 (Additional Criteria Applicable to Unlawful Non-Citizens and Certain Bridging Visa holders) criterion 3001 of the Migrations Regulations 1994 (the Regulations), which applies in this case because his circumstances enliven cl.600.223(2)(b) of Schedule 2 to the Regulations.  This is because the applicant did not hold a substantive visa at the time he applied for the Visitor (Class FA) Subclass 600 visa. 

5. In the hearing, the Tribunal noted that the applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal spoke about the information in the delegate’s decision. The delegate’s decision record indicates that:

   a.when the applicant applied for the Visitor (Class FA) Subclass 600 visa on 9 November 2020 he was the holder of a WE-050 Bridging visa, which is not a substantive visa;

   b.the applicant last held a substantive TU500 Student visa that expired on 15 March 2020;

   c.there is no provision to grant the visa to a person who applies for the visa more than 28 days after their last substantive visa ceased.

6. Prior to the hearing, the Tribunal received the following submission from the applicant dated 18 June 2021:

   The purpose of this letter is to describe my current situation and my grounds to appeal the visitor visa refusal received on 22 April 2021.

   Background

   My previous student visa was granted until 15 March 2020. The year 2020 was an incredibly difficult year for all people of the world and it was the most difficult year of my life. I experienced family tragedies and faced financial strain because of the onset of COVID-19. I started having anxiety and doubted whether I could go on living life and even I had many suicidal thoughts. Nevertheless, I tried to find strength inside of me and continued paying my school fees, my health insurance and attending class on a regular basis. I tried to comply with my responsibilities as much as possible. Then, the pandemic started, I lost my job, and any possibility to learn and practise my passion: commercial cookery. The reason why I am in Australia is to learn how to become a professional chef. Being without a substantive visa and unable to attend school and to do my work placement as a chef (part of the course) made the situation worse. The pandemic situation compounded my negative and self-destructive thoughts and those close to me feared for my mental and physical wellbeing.

   How I ended up without a substantive visa

   During my previous visa I changed courses liaising directly with the school and without the help of a student agency. My understanding at that time was that by changing courses, my student visa would automatically renew itself according to the date of the new course. I was sure my visa would gain a new expiry date for April 2021 because my new Confirmation of Enrolment was dated until 18 April 2021. I was totally unaware that the COE and the visas were independent of one another. On 9th October 2020, I was gathering some documentation to apply for the International Student Emergency Relief fund, as I had been deeply affected by the coronavirus situation, I proceeded to print my VEVO check. I was shocked to find the VEVO check came with a warning saying that I did not have any visa record with my details. When I realised the big mistake I had committed, I collapsed. Nobody could imagine the fear and despair I was feeling. I know I should have been more careful, and I cannot explain how this happened to me, but it was never my intention to stay in Australia unlawfully.

   I got scared and immediately contacted the student agency that helped me with my visa process to ask the why there was no VEVO record for me. They did not respond to my calls. Later, I contacted the migration agent Jorge Gamba to explain what had happened to me and to ask for guidance. Jorge suggested me to apply for a visitor visa (subclass 600) to get back on a substantive visa. And after being on this supposed substantive visa, I could then apply again to return to a student visa to resume my studies.

   Compelling circumstances

   After lodging the visitor visa application, Immigration sent my agent a section 57 letter on 5 March 2021 inviting us to comment on the application, but the agent did not notify me and did not respond. The agent assumed Immigration had already received the necessary documentation with the initial paper-based application and determined it was futile to answer Immigration assuming they were not satisfied with the initial reasons.

   Some time passed and on 22 April 2021 the Department of Home Affairs refused me visitor visa application. How is that possible that you are looking for help and you put your life in other people’s hands and they do not help you. I beg you to consider this COVID 19 situation as well as my mental health situation as compelling and compassionate reasons to revert my student visa to the Department of Home Affairs for reconsidering. My friends and supporting people in here also lost their jobs, I feel completely alone and afraid. I stopped seeing people and I could not tell my family to avoid adding more weight to their stress. I have lost motivation, and I started feeling sad every day to the point I did not want to get up from bed. I have been feeling weak and useless. I tried to look for professional help, but it has been difficult to find a psychologist that speaks Spanish and my health insurance does not cover counsellors. Even though I have been taking medication formulated for my doctors. After I noticed that my agency never responded to the case officer about my situation, I felt very frustrated as we could have demonstrated all over again how I had been compliant with all the student visa conditions (fees, insurance, course progression) except for missing the expiry date. Missing the expiry date is a mistake that is about to cost me the sweat, tears, and investment I have poured into my Australian education. I have all the receipts for my school fees and my medical insurance paid up to date. The letter and referrals for my doctors are enclosed.

   Conclusion

   I want to learn hospitality and professional cooking, and I always dreamed to do so in Australia as is one of the most recognised countries in the world in hospitality services, restaurants, and international cuisine. I beg for your understanding and help, as I do not want to shut my dreams, the dreams of my family that have worked hard to help me coming to Australia for a human error. If I go back to Colombia at this moment I would only be a dead weight for them and would make their situation worse, I do not feel I would able to manage it, my country is now facing an unstable political situation, and people are being indiscriminately killed in the streets and the pandemic there is out of control. I am continuously looking for psychological help, I have kept all my other documentation up to date. I have tried strongly to comply with my student responsibilities, and I have worked hard to give back to Australia what this country has given me. Please check the referral letter of my doctors and please I beg you to consider my situation.

7. The Tribunal also received:

   -a medical certificate from Dr Emil Popordanoski in respect to the applicant dated 29 August 2018.

   -a medical certificate from Dr Eduardo Aranda in respect to the applicant dated 10 May 2021.

   -a letter from Felipe Arenas, Psychologist, in respect to the applicant dated 16 June 2021.

8. In the hearing, the applicant said that he was not aware his student visa had expired. The applicant said that his mental health circumstances had affected his judgement. The applicant’s representative acknowledged that the applicant had let his visa expire. However, the applicant’s representative requested that for reasons due to the applicant’s mental health circumstances as well as the financial strain caused by COVID-19, that the applicant had met the requirements of Schedule 3.

   Analysis and findings

9. In the applicant’s circumstances as someone who was in Australia at the time of application and did not hold a substantive visa, he must satisfy Schedule 3 criteria 3001, 3003, 3004 and 3005.  Criterion 3001 requires that the application for the Visitor (Class FA) Subclass 600 visa was validly made within 28 days after the ‘relevant day’, which in the applicant’s circumstances (as someone who ceased to hold a substantive visa after 1 September 1994) is the last day when he held a substantive visa.

10. The Tribunal accepts that when the applicant applied for the Visitor (Class FA) Subclass 600 visa on 9 November 2020, he was the holder of a WE-050 Bridging visa, which is not a substantive visa.

11. The Tribunal accepts that the last substantive visa the applicant held was a TU500 Student visa that ceased on 15 March 2020.

12. The Tribunal accepts that the applicant has experienced difficulties and accepts that he experienced family tragedies and faced financial strain because of the onset of COVID-19. The Tribunal accepts that the applicant experienced mental health issues that impacted upon his circumstances. The Tribunal accepts that this is an unfortunate situation for the applicant.

13. The Tribunal has carefully considered these circumstances and whilst the Tribunal has sympathy for the applicant and the difficulties posed by his circumstances, the Tribunal has no discretion in this matter as he clearly does not meet a mandatory requirement for the grant of the visa.

14. The Tribunal finds that the applicant applied for the Class FA Subclass 600 Visitor visa on 9 November 2020, which is not within 28 days after the last day he held a substantive visa, and therefore he does not satisfy criterion 3001.  Accordingly, the Tribunal finds that the applicant does not meet cl.600.223 and is unable to meet the criteria for the grant of the Class FA Subclass 600 Visitor visa.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Class FA Subclass 600 Visitor visa.

    Joseph Lindsay
    Member