1608657 (Migration)

[2016] AATA 4211

1608657 (Migration) [2016] AATA 4211 (8 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAJAN NAPIT

CASE NUMBER:  1608657

DIBP REFERENCE(S):  BCC2016/1030214

MEMBER:D. Dimitriadis

DATE:8 August 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 08 August 2016 at 12:14pm

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 2 June 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 10 March 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.

4. The applicant appeared before the Tribunal on 8 August 2016 to give evidence and present arguments.  

5. The applicant was represented in relation to the review by his 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

7. The issue in the present case is whether the applicant meets cl.485.215.

   Health insurance requirements

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. Clause 485.215 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.

10. In the visa application, the applicant stated that that he holds health insurance.  

11. The applicant provided to the Department of Immigration (the Department) a number of documents including copies of pages of his Nepalese passport, his qualifications, academic transcripts and IELTS test results.

12. At the time of lodging the application for review with the Tribunal, the applicant provided a number of documents including copies of the following:

    ·The delegate’s decision record;

    ·Reference letter dated 1 June 2016 from Karna Yadav of YFC Club;

    ·Reference letter dated 31 May 2016 from Rachendra Shrestha;

    ·Statutory declaration declared by the applicant on 1 June 2016;

    ·National Police Certificate issued by the Australian Federal Police;

    ·Letter dated 30 September 2015 from Bupa Australia stating that the applicant has overseas student health cover with Bupa Australia Pty Ltd and the “cover will commence on 19/05/2011 and will remain active until 15/03/2016”;

    ·Letter dated 16 May 2016 from Bupa Australia stating that the applicant has ‘Essential Visitors Cover’ and the start date of the cover is 15 March 2016.

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

14. The applicant stated that he is working part-time as a pastry cook. He moved two weeks ago to an address in Belmore.

15. The applicant stated that he applied for the Subclass 485 visa on 10 March 2016. He stated that he assumed that he had to provide to the Department the National Police Certificate and the evidence about having health insurance at the same time.

16. The applicant stated that the National Police Certificate was delayed. However, he had health insurance. He had overseas student health cover until 15 March 2016 when his Student visa expired and then he had to change his health insurance cover to 485 cover. His health insurance was up to date.

17. The representative stated that the applicant had overseas student health cover but he had to transition to health insurance for the Subclass 485 visa and he obtained the 485 health insurance from 15 March 2016. The representative stated that, at time of application, the applicant had not changed his health insurance to 485 cover. The applicant was confused and did not submit the health insurance documents. 

18. The Tribunal has considered the evidence and the submissions. The applicant believed that he had to provide the National Police Certificate and the health insurance documents at the same time to the Department. The applicant stated that there was a delay in providing him with the National Police Certificate and he provided emails between himself and the Australian Federal Police about the National Police Certificate.  However, the Tribunal does not have any discretion in this matter. The applicant has to satisfy cl.485.215. The applicant lodged the Subclass 485 visa application on 10 March 2016. 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. The Tribunal is satisfied that when the visa application was made on 10 March 2016, it was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

19. The applicant’s evidence is that he has always had health insurance in Australia. However, at the time the visa application was made, the visa application was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

20. Clause 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.

21. The Tribunal finds that when the visa application was made, it was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.  

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

23. 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

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

    D. Dimitriadis
    Member