1508419 (Migration)

[2016] AATA 4576

1508419 (Migration) [2016] AATA 4576 (20 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Peter Przybylak
Mrs Elzbieta Iwona Przybylak

CASE NUMBER:  1508419

DIBP REFERENCE(S):  BCC2015/887623

MEMBER:Robert Titterton

DATE:20 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223B of Schedule 2 to the Regulations

Statement made on 20 October 2016 at 6:51pm

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 9 June 2015 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 19 March 2015. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the primary applicant did not have adequate arrangements in Australia for health insurance during his period of intended stay.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether or not the primary applicant had health insurance for the duration of his intended stay in Australia. The primary applicant applied for a Temporary Work (Store) visa on 19 March 2015.

6. On 8 May 2015, the applicant was requested to provide evidence of adequate arrangements in Australia for health insurance during the period of his intended stay. He was provided until 5 June 2015 to provide the information. The letter to the applicant indicated that the information could be provided in a number of different ways.

7. As at the time of the delegate’s decision on 9 June 2015, the applicant had not provided the information. As there was no evidence before the delegate that the primary applicant had adequate arrangements in Australia for health insurance for the period of his intended stay, the delegate was not satisfied that the requirements of cl457.223B had been met. That clause provides that the Minister be satisfied that the applicant has adequate arrangements in Australia for health insurance during the period of the applicant's intended stay in Australia. Accordingly, the application was refused

8. The applicant sought a review of the delegates decision on 20 June 2015.

9. On 23 June 2015 applicant’s agent sent a letter to the Tribunal. The agent acknowledged that on 8 May 2015 the Department wrote to the applicants requesting evidence of adequate health insurance, a copy of the primary applicant’s curriculum vitae and evidence of his work experience. The second applicant was also asked to provide evidence of adequate health insurance and advise she was required to undergo health examinations specified. The Department gave the applicant’s 28 days to respond to the request.

10. The agent states that the primary applicant duly provided his curriculum vitae and evidence of work experience to the Department, and the secondary applicant undertook a medical examination. However, the agent says there was “some confusion “ about the request to provide evidence of health insurance, and is not sure why evidence of health insurance are not provided. However, before the issue could be clarified, the application been refused. The agent agreed that evidence of health insurance should have provided and accordingly attached to the letter was a copy of a letter from Bupa dated 10 June 2015.

11. That letter indicates indicating that both applicants had health insurance that was at least as comprehensive as the minimum level of insurance required for their Visa. The letter identifies the applicants’ dates of birth, and provides their membership number. The “start date of cover” in the letter in relation to the insurance was said to be 31 December 2012.

12. It was not entirely clear to the Tribunal that the insurance cover was still current. Accordingly, it asked the applicants to provide an updated letter from their insurer. The applicants did so on 18 October 2016. The letter confirms that the applicants have health insurance cover with Bupa, at least as comprehensive as the minimum level of insurance required on the Visa by the Department. Again, the correct dates of birth of the applicants and their membership number of the relevant insurance policy are identified.

13. Given this evidence, the Tribunal finds that both applicants, but relevantly the first-named applicant, have adequate arrangements in Australia for health insurance during the period of their intended stay in Australia.

    DECISION

14. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first-applicant applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.457.223B ff Schedule 2 to the Regulations

    Robert Titterton
    Member