Bosimin (Migration)
[2021] AATA 2200
•15 June 2021
Bosimin (Migration) [2021] AATA 2200 (15 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Algier Baselmann Bosimin
CASE NUMBER: 2001919
HOME AFFAIRS REFERENCE(S): BCC2019/5491386
MEMBER:Simone Burford
DATE:15 June 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 15 June 2021 at 2:05pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –no evidence of health insurance provided with application – changing cover at the time – new cover started the day application made, and continuing – evidence provided to tribunal – no discretion to waive requirement – decision under review affirmedMIGRATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.215(1), (2)CASES
Ahmed v Minister for Immigration [2020] FCCA 622
Boddu v MIBP [2019] FCCA 879; [2019] FCA 1340
Khan v MIBP [2018] FCAFC 85
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2020 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a 33-year-old citizen of Malaysia. The applicant applied for the visa on 1 November 2019.
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 (Cth) (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.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.215(1) of Schedule 2 to the Regulations because the delegate found that when the application was made it was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.
The applicant appeared before the Tribunal on 10 June 2021 by telephone to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent however his agent did not attend the hearing.
The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the under review should be affirmed.
THE ISSUE
The issue in the present case is whether the applicant meets the requirements of cl 485.215 of Schedule 2 to the Regulations.
Clause 485.215(1) requires that when the visa application was made, it was accompanied by evidence that the applicant had adequate arrangements in place for health insurance. Clause 485.215(2) requires that the applicant has had adequate arrangements for health insurance since the time the application was made. Both requirements must be met.[1]
[1] Ahmed v Minister for Immigration and Anor [2020] FCCA 622.
This requires the Tribunal to consider:
·Whether when the visa application was made, it was accompanied by evidence of adequate health insurance arrangements; and
·If so, whether adequate arrangements have been maintained since that time.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa application was lodged with the Department of Home Affairs (the Department) on 1 November 2019.
As discussed with the applicant at the hearing, the Tribunal had before it a copy of the Department’s file relating to the visa application and a copy of the Tribunal’s file relating to the application for review.
The applicant lodged a number of documents with the Department in support of the application for the visa. The applicant confirmed at the hearing that these documents did not include any evidence relating to the applicant’s health insurance arrangements in Australia.
In support of the application, the applicant submitted to the Tribunal:
·A letter from Bupa dated 21 January 2020 confirming the applicant’s Essential Visitor’s Cover health insurance policy commencing on 1 November 2019;
·A letter from Bupa dated 23 March 2021 confirming changes to the applicant’s health insurance policy;
·A copy of the applicant’s Malaysian passport.
At the hearing the Tribunal discussed with the applicant the issues arising on the review. The Tribunal explained to the applicant the requirements of cl 485.215. The Tribunal explained to the applicant that the primary criteria for the visa, including cl 485.215 must be met by at least one applicant.
As noted in the delegate’s decision, in response to the question on the visa application ‘Do you and all applicants included in this application hold health insurance?’, the applicant answered ‘No’. The applicant confirmed at the hearing that he answered ‘No’ to this question.
The Tribunal notes that according to the record of the application on the Department’s file, the question regarding health insurance was accompanied by the following statement:
You must attach evidence of adequate health insurance after the lodgement of this application on the 'Attach documents to a lodged application' page.
Note: To meet the requirements for this visa you must have adequate health insurance.
On 1 November 2019, the Department emailed the applicant acknowledging receipt of the application. That correspondence noted:
We may make a decision on your application without requesting additional information. You should provide us with all the information you feel is relevant.
As you lodged your application online, you should log in to your ImmiAccount to see the documents required for your application.
The delegate’s decision notes that the applicant did not provide any evidence of health insurance. The applicant confirmed at the hearing that he did not provide a copy of any health insurance documents to the Department. The Tribunal asked why no evidence of insurance arrangements had been provided to the Department when the application was made and the applicant told the Tribunal that he was in the process of changing health insurance at the time. His existing Medibank cover expired on 31 October 2019 and he was moving to Bupa as they offered him a better policy. He said the earlier policy with Medibank was a student policy. He said he wanted to provide details of the new insurance policy but he forgot. He said he thought the Department would not accept his old insurance so he needed to provide the new insurance and he forgot. The Tribunal asked whether he had received the letter from the Department acknowledging the lodgement of the application and reminding him of the need to provide required documents and he said that he did but he didn’t understand it.
On the basis of the evidence before it, the Tribunal finds 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?’ on the application for the visa. The Tribunal also finds that he did not provide any evidence regarding health insurance arrangements at the time the application for the visa was made or prior to the delegate’s decision.
The Tribunal explained to the applicant that the requirements of cl 485.215 include the requirement that when the application was made, it was accompanied by evidence the applicant had adequate arrangements for health insurance. The Tribunal explained that there was a temporal element to this requirement, that is, that the evidence accompany the visa application at the time the application was made.
The applicant submitted to the Tribunal on 20 April 2021 a letter from Bupa dated 21 January 2020 confirming the applicant took out Essential Visitor’s cover on 1 November 2019. He also submitted a letter dated 23 March 2021 indicating he still held the cover at that time. The Tribunal accepts on the evidence that the applicant had essential visitor’s health insurance from 1 November 2019 which was in place at 23 March 2021.
However, cl 485.215 requires that when the visa application was made, it was accompanied by evidence the applicant had adequate arrangements in Australia for health insurance. Accordingly, the Tribunal must also be satisfied that when the application was made it was accompanied by evidence that the applicant had adequate health insurance arrangements in Australia, as required by cl 485.215(1).
The Tribunal has considered whether the applicant has met this requirement by submitting evidence to the Tribunal on 20 April 2021 that he held health insurance at the time the application was made. The Tribunal notes this information was provided more than a year after the visa application was made, and following the delegate’s decision refusing the visa application.
The Tribunal notes the applicant lodged his application with the Department on 1 November 2019 and that the delegate made a decision to refuse the visa on 16 January 2020, on the basis of information before them. The applicant confirmed before the Tribunal that he did not provide evidence to the Department regarding his health insurance arrangements prior to the delegate’s decision being made.
The Tribunal notes that the criterion in cl 485.215(1) specifies that ‘when the application was made’ it ‘was accompanied by’ the specified evidence such that there is no latitude as to the relevant time the criteria is to be met.[2] The Tribunal notes that the Full Court of the Federal Court has held that the words ‘accompanied by’ establishes an objective temporal test, that is, an application is either accompanied by the necessary evidence or it is not.[3]
[2] Boddu v MIBP [2019] FCCA 879 at [27]; upheld on appeal Boddu v MIBP [2019] FCA 1340 at [13]. While the Federal Court in that decision was considering cl 485.213 that clause is relevantly structured in the same terms as cl 485.215(1).
[3] Khan v MIBP [2018] FCAFC 85 at [15]. See also Shrestha v MHA [2019] FCA 1843. While the Full Court in Khan was considering cl 485.223, cls 485.213 and 485.215(1) are structured in the same way (‘When the application was made, it was accompanied by evidence’), and the Federal Court followed Khan when construing cl 485.213 in Tauqueer v MICMSMA [2019] FCA 1883 at [26] and [27]. As noted above, cl 485.213 is expressed in the same terms as cl 485.215(1).
In the applicant’s case, the evidence of health insurance was provided to the Tribunal more than a year after the visa application was made and following the delegate’s decision. There is no evidence before the Tribunal suggesting that the applicant notified or attempted to provide this information to the Department.
While the Tribunal has sympathy for the applicant’s circumstances, the Tribunal explained that it does not have any discretion to waive this requirement. It explained that to meet the requirement the applicant had to provide evidence when the visa application was made that he had adequate arrangements for health insurance.
Having considered the relevant case law, the authorities make it clear that inclusion of the requirement that ‘when the visa application was made, it was accompanied by evidence’ establishes an objective temporal test.[4] Even in the event there is some flexibility in the temporal requirement, it does not import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant: ‘The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not’.[5]
[4] Khan v MIBP [2018] FCAFC 85 at [15].
[5] Khan v MIBP [2018] FCAFC 85 at [15].
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 the applicant does not satisfy cl 485.215(1) and therefore does not satisfy cl 485.215.
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
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Simone Burford
Member
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