Arora (Migration)

[2019] AATA 1864

Arora (Migration) [2019] AATA 1864 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahul Arora

CASE NUMBER:  1831275

HOME AFFAIRS REFERENCE(S):           BCC2017/3144790

MEMBER:Mark Bishop

DATE:19 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 March 2019 at 11:01am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – request for adjournment – medical certificate – unfit for work – insufficient information – adjournment declined – health insurance – no evidence of adequate arrangements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360, 362B, 379A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.215

CASES
MIAC v Li (2013) 249 CLR 332

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 Home Affairs on 8 October 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 August 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because of failure to provide proof of Overseas Student health Coverage (OSHC).

4. The applicant provided a copy of the decision record to the Tribunal. The delegate made a finding the applicant failed to provide evidence of OSHC during the period of his intended stay in Australia. As the applicant failed to provide evidence of OSHC he did not satisfy cl.500.215 and therefore did not meet the requirements for the grant of a student visa.

5. As outlined hereunder the Tribunal resolved the review application on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is failure to provide proof of OSHC.

8. On 21 February 2019 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 19 March 2019. The invitation stated that if the applicant did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

9. No response to the hearing invitation was received.

10. On 21 February 2019 the Tribunal wrote to the applicant in the following terms;

    ·     If you wish to have your hearing adjourned on medical grounds, you must provide us with a medical certificate certifying that you are unable to attend and give oral evidence. The certificate must also indicate when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you have a representative acting on your behalf, medical certificates should be submitted no later than two business days before the scheduled hearing day, where available: Migration and Refugee Matters Practice Direction, at paragraph 7.4.

    ·     Additionally, it is the Tribunal’s general practice to conduct a hearing by telephone if an applicant is unable to attend in person. If you are unable to participate in a hearing by telephone on medical grounds, you must provide a medical certificate that clearly states this.

    ·     Requesting your hearing be adjourned on medical grounds without providing appropriate medical evidence may result in the Tribunal refusing your request.

    ·     If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us. A dismissed case can be reinstated if the Member considers it appropriate to do so and the application is made within 14 days of receiving notice of the dismissal. If the Member confirms the dismissal, the decision under review is taken to be affirmed.

11. At 7.13pm on the day prior to the scheduled hearing provided a copy of a medical certificate to the Tribunal that stated he had a medical condition and will be unfit for work from 18 March 2019 to 21 March 2019. The Migration Agent (MA) for the applicant advised the client had just contacted their office and informed us that he has some health condition rendering him unable to travel and requested an adjournment of the scheduled hearing.

12. The Tribunal gave consideration to this request.

13. On 2 August 2018 the President of the Administrative Appeals Tribunal brought down a Practice Direction relating to the conduct of reviews under Migration and Refugee Division. Clause 7 of the  Practice Direction dealing with Migration and refugee Matters provides as follows:

    7.        Seeking an adjournment

    7.3      If you seek an adjournment of a scheduled hearing, you must contact us immediately and state the reasons why the date is unsuitable.

    7.4      If you seek an adjournment of the hearing on medical grounds, you must contact us as soon as possible and must provide a certificate from a medical practitioner certifying that you are unable to attend and give oral evidence, and indicating when the medical practitioner considers you will be able to attend a hearing and give oral evidence. If you are a representative acting on behalf of an applicant, you must submit such medical certificates no later than two business days before the scheduled hearing day (where available).

14. The applicant did not provide a medical certificate from a medical practitioner certifying that he was unable to attend and give oral evidence. The medical certificate provided by the applicant did not address this specific requirement in any respect. The applicant provided a medical certificate that was general in nature. It did not comply with the relevant Practice Direction. The medical certificate submitted by the MA was not provided to the Tribunal in the time period specified in Cl.7.4 of the Practice Direction as outlined above.

15. The Tribunal considered the request for an adjournment as outlined in paragraphs 7.3 to 7.4 above in the Practice Direction.

16. At 8.56am on 19 March 2019 the Tribunal emailed the applicant in the following terms:

    ·     I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Student (Temporary) (Class TU) visa.

    ·     The Tribunal refers to your correspondence dated 18 March 2019 attaching a medical certificate dated 18 March 2019.

    ·     The certificate states that you are receiving medical treatment and for the period 18 March 2019 to 21 March 2019 that you will be unfit to work.

    ·     On the basis of the medical evidence currently before the Tribunal, the presiding Member is not prepared to grant a postponement of the scheduled hearing.

    ·     In particular, having had regard to the limited information contained in the medical certificate provided, the presiding Member is not satisfied that you have demonstrated that you will be unfit to participate in a hearing, whether this be in person or otherwise in a hearing conducted via telephone. In particular, the medical certificate only makes reference to your incapacity to work, and provides no opinion or certification regarding your capacity to participate in a hearing, either in person or via telephone.

    ·     The Tribunal advises that a telephone hearing remains an option for you and if you do not intend to attend your hearing at the scheduled time and place, you should make yourself available on your telephone contact number in order that your hearing can be conducted in this manner.

    ·     In the event that you do not attend the Tribunal or respond to the Tribunal’s call from 9:30am for the purposes of a telephone hearing, in the absence of any further medical evidence that you are unable to attend or participate in a telephone hearing, your application will be determined by this Tribunal without further notice.

17. The Tribunal turns to consider this material. The High Court of Australia (HCA) in MIAC v Li (2013) 249 CLR 332 gave consideration to the factors relevant in a request for adjournment. The High Court held that the Tribunal must not arbitrarily exercise its discretion whether or not to grant an adjournment but rather must do so by reference to the facts and circumstances of the individual case and in a manner which is reasonable and has regard to the statutory purposes of s.360. The Tribunal has considered the facts and circumstances of this review application.

18. The Tribunal has provided to the applicant numerous pieces of written advice as to obligations placed upon review applicants. The applicant has not complied with that advice. He has not complied with the relevant practice direction which is readily available on the Tribunal website.

19. The medical certificate referred to above did not identify the illness. It did not identify the nature of the illness. It did not identify the nature of the incapacity (if any). It did not state the nature of the medical condition. It did not give any indication of its severity or otherwise. It did not advise the applicant was unable to attend a hearing. It did not say the applicant could not attend a hearing. The medial practitioner did not state when the incapacity commenced. The medical practitioner repeated the advice from the applicant.

20. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal tempted to contact the review applicant via his mobile phone on the number provided by the applicant. He did not answer his phone. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5)], the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    Other criteria

21. On 21 February 2019 the Tribunal wrote to the applicant in the following terms: Please provide the following information at least 7 days before the hearing date so that a decision can be made as quickly as possible:

    1.A copy of your current Confirmation of Enrolment (CoE) or other document/s that show that you are currently enrolled in a course of study as defined in cl.500.111 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

    2.Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.

    3.Evidence of adequate arrangements for health insurance from an approved provider during the period of your intended stay in Australia for you and each secondary applicant. For more information about overseas student health cover

    see >

    The applicant failed to respond to this request for information. The applicant failed to provide the information as requested in paragraph 21 above. The applicant did not provide proof of OSHC coverge until 25 August 2019.

22. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.215 of Schedule 2 to the Regulations.

23. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Mark Bishop
    Member