BONDUGULLA (Migration)

[2018] AATA 5779

BONDUGULLA (Migration) [2018] AATA 5779 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PRUDHVIDHAR REDDY BONDUGULLA

CASE NUMBER:  1805617

HOME AFFAIRS REFERENCE(S):           BCC2017/4840202

MEMBER:Karen McNamara

DATE:29 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 November 2018 at 11:18am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health insurance – evidence of adequate arrangements not included in visa application – no attempt to contact the Department to rectify the mistake – temporal connection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.215

CASES
Anand v Minister for Immigration and Citizenship [2013] FCA 1050
Nguyen v Minister for Immigration & Anor [2016] FCCA 1523

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 12 February 2018 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 18 December 2017. 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 applicant has provided to the Tribunal a copy of the delegate’s decision record which records on the 12 February 2018, the delegate refused the visa on the basis that the applicant did not meet cl.485.215 of Schedule 2 to the Regulations because he had not provided evidence to the Department that he had adequate health insurance arrangements in Australia. The delegate therefore, found that the applicant did not satisfy the requirements of clause 485.215.

4. The applicant appeared before the Tribunal on 14 November 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets cl.485.215 which provides as follows:

   485.215

   (1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance; and

   (2) The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.

7. The visa application on the Department’s file indicates that in response to the question “Do you and all applicants included in this application hold health insurance? ” the word “No” is recorded.

   Health insurance requirements

Assessment of the Evidence

1. The Tribunal has had regard to all the evidence before it, including the Department’s file and the Tribunal’s file. It notes that the visa application was lodged with the Department on 18 December 2017 and it was accompanied by documents relating to the applicant but did not include evidence that the applicant had adequate arrangements in Australia for health insurance and that, the applicant has had adequate arrangements in Australia, for health insurance since the time the application was made.

2. On the basis of the Department’s file, the Tribunal accepts that at the time of application the applicant stated “No” to the question “Do you and all applicants included in this application hold health insurance?

3. On 2 March 2018, the applicant lodged an application for review with the Tribunal.  Tribunal records indicate the application was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance and that, the applicant has had adequate arrangements in Australia, for health insurance since the time the visa application was made.

4. At the hearing on the 14 November 2018, the applicant provided the Tribunal with a copy of a letter from Allianz Global Assistance stating that the applicant held a health insurance policy with a start date of 4 January 2018. The applicant told the Tribunal that this policy is current. Other documentation provided to the Tribunal included tax invoices for medical services and an email from the applicant to the Department dated 21 December 2017 advising that he “missed one letter in his family name.”

5. The applicant told the Tribunal that he had made a mistake in his application and that when he returned from India he lodged his application for review with the Tribunal. He said that he tried emailing the Department to advise that he held health insurance. The Tribunal notes that there is no evidence before it to support that the applicant contacted the Department to provide evidence of holding a valid health insurance policy. 

6. Subsequent to the hearing, the applicant provided to the Tribunal via email at 1.31pm on 14 November 2018 a certificate of insurance issued by Allianz Global Assistance for OSHC,   with a start date of 29 December 2017 and expiry date of 28 January 2018.

7. The Tribunal has considered the information provided to the Tribunal and accepts that the applicant’s student health insurance with Allianz was valid until 28 January 2018 and that the applicant took out a policy with Allianz Global Assistance start date 4 January 2018..  However, the Tribunal must also be satisfied that his application, when made, was accompanied by evidence that he had adequate health insurance arrangements, as required by cl.485.215(1).

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.  The Tribunal has considered whether the applicant has met this requirement by providing the Tribunal this evidence on the 14 November 2018, over 11 Months after the visa application was made. In doing so it has considered case law regarding the phrase ‘accompanied by evidence’.

9. The Tribunal has had regard to the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050, in which Katzmann J considered an identically worded clause (cl.487.216) and held that:

   It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria.  That is why relevant evidence is to accompany the application.  Consistent with that purpose the evidence should be submitted with or at the same time as the application.  Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question… For the above reasons, I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged.  Evidence supplied around the time of the application may be sufficient. I doubt, for example, if accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that.  Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within a week, and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged…

10. The Tribunal notes that Anand’s case dealt with an arguably more flexible formulation of the requirement, as the ‘time of application’ requirement in that case came under the cl.487.21 heading and was not contained in the cl.487.216 criterion itself.  While the heading informs the criterion, it is not determinative.  However, the criterion that applies in this case itself specifies that ‘when the application was made’ it ‘was accompanied by’ the specified evidence.  The Tribunal is of the view the use of the word ‘was’ locates the requirement clearly in the past.  While the Tribunal takes any information provided into account at the time of its decision there are some provisions which must be met before that time.  The Tribunal is of the view the requirement of cl.485.215 is one of those provisions.

11. The Tribunal has also had regard to another more recent case, Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, in which Burchardt J held that the words ‘accompanied by’ in the context of a subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time the application is lodged and when the evidence which must accompany that application must be provided. In that case, Burchardt J held that a 29 day gap was too great to meet the temporal requirement. The Tribunal further notes that in that case, Burchardt J was considering cl.485.223, not cl.485.215. However, cl.485.223 also provides that at the time the visa application was made, it was accompanied by evidence …, which is essentially the same wording as that used in cl.485.215.

12. In the applicant’s case, the evidence of health insurance was provided to the Tribunal over 11 months after the visa application was made. There is no evidence before the Tribunal to support that the applicant notified or attempted to provide this information to the Department.

13. Having considered the case law discussed above, the Tribunal is not persuaded that in this case, there is a close temporal connection between the visa application and the provision of the relevant evidence, given that a period of approximately 11 months elapsed.

14. For the reasons set out above, the Tribunal is not satisfied 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 finds that applicant does not satisfy cl.485.215(1) and therefore does not satisfy cl.485.215.

15. Based on the Tribunal’s findings 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

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

Karen McNamara
Member