1509772 (Migration)

[2016] AATA 3135

1509772 (Migration) [2016] AATA 3135 (27 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xiaotian Zhou

CASE NUMBER:  1509772

DIBP REFERENCE(S):  BCC2015/795432

MEMBER:Miriam Holmes

DATE:27 January 2016

PLACE OF DECISION:  Melbourne

DECISION: The Tribunal remits the visa application for a Student (Temporary) (Class TU) Subclass 573 visa for reconsideration with the direction that:

·the applicant meets the requirements of cl.573.225 of Schedule 2 to the Regulations

Statement made on 27 January 2016 at 12:18pm

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 10 July 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 March 2015. The delegate refused to grant the visa on the basis that the applicant did not meet the requirement in cl.573. 225 as the delegate was not satisfied that the applicant had given evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia. The delegate noted that the applicant’s intended period of stay was until 15 March 2016.

3. On 21 July 2015 the applicant provided additional evidence to the Tribunal. The Tribunal had regard to the information on the department file and the Tribunal file, including the decision record provided by the applicant in considering this review application. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Act and the Regulations set out the qualification criteria at the time of the visa application and at the time of decision that a person must establish to be eligible to be granted a visa. A person who applies for a Student (Temporary) (Class TU) Subclass 573 visa must establish that they meet the requirements set out in one of the following Parts 573 in Schedule 2 to the Regulations. The central issue in contention in this case is whether the applicant meets the requirements in cl.573.225 as at the time of decision. At the time of application, cl.573.225 provided as follows:

   573.225

   The applicant gives to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.

6. The phrase “adequate arrangements in Australia for health insurance” is not defined in the Act. The Procedures Advice Manual (PAM 3) states the policy that “adequate arrangements” has been complied with if the student (or if applicable, family unit member) provides evidence that the OSHC premium in their favour has been paid.

7. On 21 July 2015 the Tribunal received a copy of a letter dated 11 March 2015 addressed to “To whom it may concern” re Mr Xiao Tian Zhou from Bupa Australia confirming that $367 has been paid to renew his single status Overseas Student Health Cover (OSHC) with Bupa Australia Pty Ltd and the renewal period is from 22 January 2016 until 23 November 2016. The letter also noted that coverage commenced on 22 February 2012 and that the applicant has had continuous coverage since that date. The Tribunal finds accordingly.

8. The Tribunal finds that on 11 March 2015 the applicant applied for a student visa for the purposes of studying a Master of Landscape Architecture from January 2015 until 31 December 2015.

9. The Tribunal considers that the policy organised by the applicant with Bupa Australia Health Pty Ltd from 22 February 2012 until 23 November 2016  constitutes “adequate arrangements” for the applicant for health insurance during the period of the applicant’s intended stay in Australia. Therefore the Tribunal is satisfied that the applicant has provided evidence of adequate arrangements in Australia for health insurance during the applicant’s intended stay in Australia and meet the requirements of cl.573. 225.

   CONCLUSIONS

10. The Tribunal is satisfied that the applicant has provided evidence of adequate arrangements in Australia for health insurance during the applicant’s intended stay in Australia and meets the requirements of cl.573.225.

    DECISION

11. The Tribunal remits the visa application for a Student (Temporary) (Class TU) Subclass 573 visa for reconsideration with the direction that:

    -the applicant meets the requirements of cl.573.225 of Schedule 2 to the Regulations;

    Miriam Holmes
    Senior Member