Cheng (Migration)

[2019] AATA 2858

Cheng (Migration) [2019] AATA 2858 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lok Him Martin Cheng

CASE NUMBER:  1810749

HOME AFFAIRS REFERENCE(S):           BCC2018/996109

MEMBER:Susan Trotter

DATE:27 February 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.215 of Schedule 2 to the Regulations.

Statement made on 27 February 2019 at 4:33pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Overseas Student Health Cover not provided – applicant’s error on application form – evidence submitted 13 days later – short period of time – adequate arrangements – decision under review remitted

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 Immigration, Citizenship and Multicultural Affairs (the Minister) on 3 April 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958.

2. The applicant is a 24-year-old citizen of China. He first arrived in Australia in February 2014 as the holder of a student visa and has undertaken various studies in Australia. He applied for the temporary visa, the subject of this application, known as a Subclass 485 visa, on 1 March 2018.

3. 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.

4. The delegate refused to grant the visa on the basis that although the applicant had provided evidence of Overseas Student Health Cover, that was not considered adequate health cover for the Subclass 485 visa as required.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 16 April 2018.

6. The applicant appeared before the Tribunal on 13 February 2019 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   ISSUES

9. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream, which criteria include cl.485.215 of Schedule 2 to the Regulations.

   Health insurance requirements

10. 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; and secondly, that the applicant has had adequate arrangements in Australia for health insurance since the time the application was made.

11. ‘Adequate’ is not defined in the legislation however policy of the Department of Home Affairs (the Department) (PAM3) provides guidance in relation to what constitutes ‘adequate’ health insurance as follows:

    Applicants who are also Student visa holders may present evidence of a valid Overseas Student Health Cover (OSHC) policy at time of visa application to satisfy 485.215(1). However, OSHC may not be acceptable for the purpose of 485.215(2) (i.e. from the time the visa application is made until the time of decision). This is due to the eligibility and claim requirements of the OSHC insurance which requires a holder of OSHC to be:

    ·  a person holding a student visa, OR

    A person who:

    ·  has made an application for a student visa; and

    ·  is the holder of a bridging visa; and

    ·  was immediately before being granted a bridging visa, the holder of a student visa

    If the applicant moves from their Student visa to a bridging visa when their Student visa ceases (without making a further student visa application), they will be required to obtain a non-OSHC policy to meet the health insurance requirement of 485.215(2) for their VC-485 visa application immediately after their OSHC ceases.

    If the applicant’s student visa is still valid at the time of decision for their VC-485 visa application and they have not obtained non-OSHC health insurance, the case officer should request evidence of adequate arrangements for health insurance from the applicant.

    If the applicant is not a student visa holder when they make their application, OSHC is not acceptable evidence of health insurance.

Examples:

Scenario A: Application made while on a student visa

If the applicant is covered by an OSHC until 15 March, and lodged their application for a
Temporary Graduate (subclass 485) visa in February (prior to the expiry date of the OSHC),
they must obtain adequate non-OSHC health insurance cover that commences from 16 March
when their bridging visa commences. If their VC-485 visa is granted prior to the expiry date of their
student visa (that is, 15 March), they must further obtain a non-OSHC health insurance cover immediately.
Under these circumstances, case officers should contact the applicant to request evidence that they
have non-OSHC health insurance cover before finalising the visa application.

Scenario B: Application made while on a non-student visa
If the applicant is covered by an adequate non-OSHC health insurance when they make their application
 for a VC-485, they will need to continue to hold adequate non-OSHC insurance while they are waiting for
a decision on their application.

Applicants outside Australia

If an applicant is applying for a VC-485 visa from outside Australia as a subsequent entrant, they must provide evidence that they have a health insurance policy at the time they make their visa application and at the time of decision for that application. This health insurance cover may commence from the time they arrive in Australia. Evidence of adequate health insurance arrangements could include a “Certificate of Prospective Currency” issued by a health insurance provider.

Level of cover

The health insurance policy should provide the minimum level of insurance required Refer to PAM3: Sch8/8501 – Maintain health insurance – Adequate level of cover.

1. It follows that the issues to be determined by the Tribunal are as follows:

   (a)  When the visa application was made, was it accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance? And, if so,

   (b)  Has the applicant had adequate arrangements in Australia for health insurance since the time the visa application was made?

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Issue 1 – When the visa application was made, was it accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance?

2. In the visa application dated 1 March 2018, in response to the question “Do you and all applicants included in this application hold health insurance?”, the applicant responded “No”. However, on 14 March 2018, the applicant provided evidence that he had Overseas Student Health Cover with Allianz Insurance valid until 9 April 2018. Further, on 10 April 2018 the applicant provided a Form 1023, Notification of incorrect answer(s) form correcting this answer to ‘Yes’.

3. The applicant told the Tribunal at hearing that he realised he had made a mistake on the form, in relation to the health insurance, and as soon as he realised, after discussing his application with his education consultant, he submitted the health insurance details to the Department on 14 March 2018 and followed that up with the 1023 Form.

4. Although in Anand v Minister for Immigration and Citizenship [2013] FCA 1050 and Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, it was held that a gap of five months and 29 days respectively between the date of the visa application and the provision of the evidence, did not meet the temporal requirement that the evidence ‘accompany’ the application, the gap in this case, 13 days, is a much shorter period of time, less than 10 working days. In the Tribunal’s view this is a short enough period to constitute a very close temporal connection between the date of the visa application and providing the evidence. The Tribunal is therefore satisfied, as is apparent was the delegate on this issue, that the visa application was accompanied by evidence that the applicant had arrangements in Australia for health insurance at the time of the visa application.

5. As to whether the health insurance was ‘adequate’, Departmental records show that at the time of the visa application, the applicant was the holder of a student visa and the evidence provided shows that the applicant had valid Overseas Student Health Insurance until 9 April 2018. Consistent with PAM3, the Tribunal is therefore satisfied that when the visa application was made it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

6. It follows that cl.485.215(1) is met.

   Issue 2 – Has the applicant had adequate arrangements in Australia for health insurance since the time the visa application was made?

7. The evidence before the Tribunal is that the applicant has held the following health insurance since the time the visa application was made:

   Allianz  Overseas Student Health Cover            continuing to 09/04/18

   Medibank   Working Visa Hospital Insurance          05/04/18 ongoing

8. Having regard to this evidence, and consistent with PAM3, the Tribunal is satisfied that continuing health insurance, including Overseas Student Health Cover overlapping with Working Visa Hospital Insurance which is ongoing, constitutes adequate arrangements in Australia for health insurance.

9. It follows that cl.485.215(2) is met.

   Conclusion

10. As the Tribunal has found that both cl.485.215(1) and cl.485.215(2) are met, cl.485.215 is met overall.

11. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

12. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    · cl.485.215 of Schedule 2 to the Regulations.

    Susan Trotter
    Member