Bosimin (Migration) - [2021] AATA 2200

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 affirmed
MIGRATION
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 2200
Decision Date: 15 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by Mr. Bosimin concerning the refusal of his application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The core of the dispute centred on whether Mr. Bosimin had provided sufficient evidence of adequate health insurance arrangements at the time of his visa application and thereafter, as required by the Migration Regulations 1994.

The Tribunal was required to determine two key issues: first, whether the visa application was accompanied by evidence of adequate health insurance arrangements when it was lodged on 1 November 2019; and second, if such evidence was initially provided, whether adequate arrangements had been maintained since that time. The applicant had answered "No" to the health insurance question on the application form and confirmed this at the hearing, stating he was in the process of changing policies and forgot to provide details of his new cover.

The Tribunal found that the applicant did not satisfy the criteria for the grant of the visa, specifically clause 485.215 of Schedule 2 to the Migration Regulations 1994, which mandates the provision of evidence of adequate health insurance. Despite the applicant providing a letter from Bupa dated 21 January 2020, confirming a policy commenced on 1 November 2019, this evidence was not submitted with the initial application to the Department of Home Affairs. The Tribunal noted that the applicant's explanation for not providing the evidence, that he was changing policies and forgot, did not overcome the regulatory requirement that such evidence accompany the application.

Consequently, the Tribunal affirmed the decision not to grant Mr. Bosimin the Skilled (Provisional) (Class VC) visa, Subclass 485.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 BurfordMember

Ratio Decidendi

Legal Principle Established

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