Balzaretti (Migration)

[2017] AATA 2270

Balzaretti (Migration) [2017] AATA 2270 (25 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Giovanna Balzaretti

CASE NUMBER:  1719910

DIBP REFERENCE(S):  BCC2017/877117

MEMBER:Mara Moustafine

DATE:25 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.215 of Schedule 2 to the Regulations.

Statement made on 25 October 2017 at 3:17pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Provision of health insurance – Evidence of health insurance provided

LEGISLATION

Migration Act 1958, s 65, 360

Migration Regulations 1994, Schedule 2, cl 500.215

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 11 August 2017 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 6 March 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 she had not provided evidence of adequate arrangements in Australia for health insurance during the period of her intended stay in Australia.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 whether the applicant meets the criterion in cl. 500.215. That criterion requires that at the time of the decision, the applicant must have provided the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant's intended stay in Australia.

6. The applicant applied for a Student visa on 6 March 2017, providing a Confirmation of Enrolment (COE) for Diploma of Hospitality Management which indicated that the applicant had insurance coverage from 25 April 2016 to 24 July 2017. As this was not sufficient evidence of adequate arrangements for health insurance in Australia, on 22 March 2017 the Department requested the applicant to provide evidence of adequate arrangements in Australia for the duration of her stay in Australia. However, this was not forthcoming. Nor was such evidence provided in response to a second request sent on 5 July 2017, notwithstanding an email response from the applicant that she would “provide more info tomorrow”. The Department was, therefore, not satisfied that the applicant met clause 500.215 for the grant of the Student visa and refused to grant her the visa on 11 August 2017.

7. The applicant applied to the Tribunal for a review of that decision on 30 August 2017.

8. On 21 September and 2 October 2017 the applicant emailed to the Tribunal documents in support of her application, including copies of COEs for Diploma of Hospitality Management extension (1 July 2017 to 30 November 2017), a Certificate IV in Commercial Cookery (1 February 2018 to 30 June 2018) and evidence of Overseas Student Health Cover (OSHC) in the form of a confirmation letter from Allianz with coverage from 25 July 2017 to 30 September 2018.

9. After considering the available evidence, the Tribunal found that pursuant to section 360(2)(a) of the Act, it should decide the review in the applicant’s favour. Therefore no hearing was required.

10. At the date of the primary decision, the delegate found that the applicant did not hold adequate health insurance to cover the entire period of her intended stay in Australia and therefore did not meet the requirements of clause 500.215.

11. On 2 October 2016, the Tribunal was provided with evidence that the applicant holds health insurance during the entire period of her intended stay in Australia, thereby satisfying the requirements of 500.215.

12. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.215.

13. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

14. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.215 of Schedule 2 to the Regulations.

    Mara Moustafine
    Member