Atonio (Migration)

[2021] AATA 4040

Atonio (Migration) [2021] AATA 4040 (14 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leo Atonio

CASE NUMBER:  2106772

DIBP REFERENCE(S):  BCC2019/2505710

MEMBER:Michael Cooke

DATE:14 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration finding that the applicant meets the following criterion:

·cl.461.225 in Schedule 2 of the Regulations

Statement made on 14 October 2021 at 3:03pm

CATCHWORDS

MIGRATION – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – maintain health insurance arrangements – applicant unaware of obligations – family covered by Medicare – separation from large family – substantial compliance – decision under review remitted         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 461.225; Schedule 8, Condition 8501

CASES

Baidakova v MIMA [1998] FCA 1436
Kim v Witton [1995] FCA 816

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 5 May 2021 to refuse to grant the visa applicant a Special Category (Temporary) (Class TY) Subclass 444 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 May 2019. The delegate refused to grant the visa on the basis that he did not meet clause 461.225 in Schedule 2 of the Regulations because he breached Condition 8501 which states:

   The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

3. The applicant appeared before the Tribunal on 35 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and mother-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Samoan and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent Bridging visa. In the instant case condition 8501 is the pertinent condition in question.

   The Hearing

6. The Tribunal explained the issue of the failure of the applicant to comply substantially with condition 8501 which requires that a visa holder ‘must maintain adequate arrangements for health insurance while the holder is in Australia’.

7. The applicant and his wife informed that they agreed that they had taken out health insurance in 2014 on application but did not do so after 2015. They did not do so until advised to do so by the Department following the letter the received regarding their visa status.

8. The applicant in mitigation elaborated that he did not have (until recently) a migration agent to seek migration advice. He and his family were completely unaware that they had to maintain adequate arrangements for health insurance after the initial payment was made in 2014. Since becoming aware of the matter they had maintained the appropriate health care arrangements.

9. The Tribunal asked the applicant what he did, for instance, when he went to the doctor. He said he just paid the requested fee. He insisted that he did not deliberately fail to take out health care. He was simply unaware of his obligation.

10. He explained (in Samoan) that when he was living in Samoa, he received the visa application paperwork from his mother-in-law. He signed the papers and sent them back. She confirmed this scenario. She recounted that the applicant and his daughter had been courting for years on his daughter’s trips to Samoa. Her daughter indicated she met the applicant, initially, when she usually took advantage of in the school holidays to visit Samoa. They got married subsequently in Samoa and had one and later two children. The applicant’s mother-in-law explained that she was anxious to stabilize their residence in Australia - especially after their second child was born. She discovered there was a visa category which was the right fit for the applicant. She gathered the appropriate paperwork and sent it to him for signature. The applicant then moved to Australia in 2014 to live with her daughter pursuant to the grant of the Subclass 461 visa.

11. The Tribunal asked the applicant’s wife what she did for health care considering she had 7 children. She said she was covered by Medicare. She was a NZ citizen of Samoan origin who came to Australia in 2008 and her children were all New Zealand citizens.

12. The Tribunal invited the applicant to make a personal statement. He said he promised in future to abide by all visa conditions. He asked the Tribunal to consider the potential impact on his 7 school aged children. The truth was that he was totally unaware of the health condition requirements. If he knew what he now knew he would have complied completely with the requirements of condition 8501. In the meantime, he would continue to do his duty as a man and father.

    Findings regarding ‘Substantial Compliance’

13. The Tribunal observes that in the leading case of Kim v Witton Sackville J in 1995 considered this particular issue. His Honour suggested there were crucial relevant considerations (in that case) concerning ‘substantial compliance’. The Tribunal will now juxtapose those considerations with the evidence presented in the present case.

    ·the nature of the breach of condition;

14. The Tribunal observes that the nature of the breach is that the applicant (according to information in the submitted delegate’s decision) spent a cumulative total of 38 days outside Australia since the grant of his previous Subclass 461 visa. This equates to 2419 days spent in Australia without any health insurance during his previous Subclass 461 visa validity period until the date the delegate made his decision. He made health care arrangements for only the first 12 months of his visa grant. He did not, therefore, maintain health insurance for any substantial period of time during the validity of his previous visa.

    ·the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

15. The breach is significant as the condition is an important prerequisite for grant of a Subclass 461 visa. The period of time over which it occurred is in the Tribunal’s opinion - extensive.

    ·whether or not the applicant deliberately flouted the condition;

16. The Tribunal is satisfied, on balance, that the applicant did not deliberately flout the condition. The applicant was plainly ignorant of the requirement and his English is poor. Both factors patently contributed to his unawareness of the requirement. His mother-in-law was essentially in charge of assisting him to complete his visa application when he was in Samoa. She has no apparent skill in immigration law but was just helping out her son-in-law and daughter to make their lives better. The parties only realized the applicant’s problem when they engaged a migration agent following adverse Departmental correspondence. They immediately rectified the discrepancy.

    ·if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

17. The applicant failed to appreciate the apparent breach from ignorance of the appropriate migration law and poor English fluency. There is no evidence the Department misled the applicant.

18. Ultimately, in making its decision as to whether or not an applicant has complied substantially with a condition, will depend on the circumstances of the case. It is a question of fact for the Tribunal having regard to the wording of the condition itself, the applicant’s conduct and any other relevant considerations (including the factors identified in Kim v Witton).

19. In Baidakova v MIMA [1998] FCA 1436 Katz J referred to a failure of ‘substantial compliance’ by the applicant because he ‘had failed to do so through innocent error’. Such was the explanation made by the applicant for what was considered a significant breach of condition 8501.

20. Before the Federal Court the applicant argued that in determining whether there had been substantial compliance the tribunal was required to consider both "quantitative" and "qualitative" matters. Justice Katz in Baidakova appeared to accept the proposition that "qualitative" matters could be considered in determining whether there had been ‘substantial compliance’ with a visa condition. The Court on appeal found that the Tribunal had not made an error of law as it had clearly considered the "qualitative" aspects of the applicant’s compliance with the condition.

21. The Tribunal has had the benefit of oral evidence from the applicant and his wife and mother in law. His employer has also submitted a testimonial speaking to his diligence, competency and integrity as an employee.

22. The Tribunal finds that the applicant did make health arrangements in the first year of his visa grant and then made further arrangements when advised by the Department of his potential non-compliance. His lengthy time in apparent breach of the condition necessitates, the Tribunal finds, considerations of the ‘qualitative’ considerations.

23. In the Tribunal’s view those matters are his ignorance of both English and migration law and (as a result) the requirements of the condition. In view of these considerations it is well apparent that he did not ‘deliberately flout the condition’. Rather he failed to make the appropriate health arrangements ‘through innocent error’. Once aware of his mistake he then rectified the problem by maintaining health arrangements as required.

24. The Tribunal finds he, therefore, ‘complied substantially’ with condition 8501 and, resultingly, meets clause 461.225 in Schedule 2 of the Regulations.

    DECISION

25. The Tribunal remits the matter for reconsideration finding that the applicant meets the following criterion:

    ·cl.461.225 in Schedule 2 of the Regulations

    Michael Cooke
    Senior Member