1607087 (Migration)

[2016] AATA 4636

1607087 (Migration) [2016] AATA 4636 (3 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Li YANG

CASE NUMBER:  1607087

DIBP REFERENCE(S):  BCC2016/208804

MEMBER:Jennifer Ciantar

DATE:3 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 03 November 2016 at 2:44pm

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 6 May 2016 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 January 2016. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487; however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 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 applicant did not satisfy cl.485. 215 of Schedule 2 to the Regulations because there was no evidence provided with the visa application that the applicant had adequate arrangements in Australia for health insurance and that she had had adequate arrangements in Australia for health insurance since the time that the application was made.

4. The applicant appeared before the Tribunal on 25 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Health insurance requirements

7. The issue is whether the applicant meets the requirements of cl.485.215 which provides:

   485.215

   (1)  When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

   (2)  The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.

8. Clause 485.215 requires that when the visa application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance; and secondly, that the applicant has had adequate arrangements in Australia for health insurance since the time the application was made.

9. The applicant provided the Tribunal with the delegate’s decision record. It states that the applicant did not respond to a request for further information made on 10 March 2016. The applicant also provided a letter dated 6 May 2016 from Bupa which states that the start date of her health cover is 6 May 2016.

10. At the hearing the Tribunal informed the applicant of the requirements of cl.485.215.

11. The applicant stated that her overseas student health care cover (OSHC) was in effect from 1 September 2015 until 1 September 2016 and she has provided a certificate as proof. At the time she lodged the visa application on 14 January 2016, she had believed she did not need to provide evidence of health insurance because there was still eight months to run with her OSHC. On the day that the visa had been refused, she had purchased health insurance with Bupa. The agent had told her about the refusal and although they mentioned that they had received a request for information from the Department, the request had not been forwarded to the applicant. The applicant stated that an agent had lodged the visa application for her, and she had provided all the documents she thought were required.  

12. The applicant’s evidence is that she has always had health insurance in Australia. The Tribunal has considered the evidence provided and accepts that the applicant was of the view that she had adequate arrangements in Australia for health insurance from the time of application because she had OSHC in effect from 1 September 2015 to 1 September 2016. She purchased health cover with Bupa on 6 May 2016.

13. However, the applicant has to satisfy both paragraphs of cl.485.215, and paragraph 485.215(1) requires that when the visa application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance. The Tribunal has considered the applicant’s evidence and accepts that the applicant believed that at the time of application the Department was aware that she had OSHC. However, the Tribunal does not have any discretion in this matter. The requirement is that at the time the visa application was made, the visa application was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance. The application does not dispute that she did not provide evidence of health insurance arrangements with the visa application and she did not respond to the Department’s request for information.

14. The applicant lodged the Subclass 485 visa application on 14 January 2016. The Tribunal is satisfied that when the visa application was made, it was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

15. Therefore the applicant does not satisfy cl.485.215(1) and does not satisfy cl.485.215.

16. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Jennifer Ciantar
    Member