1610535 (Migration)

[2016] AATA 4633

1610535 (Migration) [2016] AATA 4633 (3 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Shreejala Lumbini
Mr Tek Nath Sapkota
Miss Praashnaa Sapkota

CASE NUMBER:  1610535

DIBP REFERENCE(S):  BCC2016/1208411

MEMBER:Jennifer Ciantar

DATE:3 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 03 November 2016 at 12:49pm

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 27 June 2016 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 March 2016 (this is the date stamp on the visa application). 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 visas because the first named applicant (the applicant) did not satisfy cl.485.215(2) 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 applicants appeared before the Tribunal on 25 October 2016 to give evidence and present arguments. 

5. The applicants were represented in relation to the review by their 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 in the present case 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. Essentially, cl.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:

   ·     AFP certificate.

   ·     A Medibank card which is valid to 15 March 2016

   ·     A letter dated 10 March 2016 from Bupa, which states that the start date of health insurance cover for all the applicants is 15 March 2013. The Bupa letter incorrectly spells the applicant’s surname.

   ·     A membership card issued by Bupa, which correctly spells the applicant’s name, has also been provided.

   ·     A submission in which the applicant’s representative states that the visa application was posted to the Department on 11 March 2016 and the Department received the application on 15 March 2016, not 11 March 2016, as recorded in the delegate’s decision. At the time of application, the applicant held a student visa valid until 15 March 2016 and her OSHC was valid until this date. She purchased new insurance from 15 March 2016. However, the letter from the insurer incorrectly spelt the applicant’s name and so was not sent to the Department in response to the request made on 19 May 2016. In error, the AFP certificate and the evidence of health insurance were not sent to the Department although they were ready at the time of application. It is submitted that the applicant has always had health insurance and it was an error on the representative’s part that the documents were not sent on time.

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

11. The applicant stated that it was not her error that evidence of the health insurance was not provided with the visa application or in response to the Department’s request of 19 May 2016. She has held continuous healthcare cover since lodging the application. It was the agent’s error to have not provided the evidence to the Department either with the application or in response to their request. The applicant stated that she had provided all the required information to her agent. The agent attended the hearing and confirmed the applicant’s evidence.

12. The applicant has provided evidence that she has held health care cover with Bupa since 15 March 2016 and immediately prior to this date, she had health insurance (OSHC) with Medibank. The Tribunal accepts that the applicant has had adequate arrangements in Australia for health insurance since the time the application was made. 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 evidence and accepts that there was human error which caused the applicant to not provide evidence of health insurance with the visa application or in response to the Department’s request. However, the Tribunal does not have any discretion in this matter.

13. The applicant lodged the Subclass 485 visa application on 15 March 2016. The Tribunal is satisfied that when the visa application was made on 15 March 2016, it was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

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

15. 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.

16. The Tribunal also finds that the secondary applicants do not satisfy cl.485.311 as the applicant has not met the primary criteria for the grant of the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Jennifer Ciantar
    Member