CHHETRI KARKI (Migration)

[2018] AATA 5280

CHHETRI KARKI (Migration) [2018] AATA 5280 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ruby CHHETRI KARKI
Mr Bishal Karki

CASE NUMBER:  1714107

HOME AFFAIRS REFERENCE(S):           BCC2017/1417879

MEMBER:Karen McNamara

DATE:22 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 22 November 2018 at 12:38pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –health insurance – adequate arrangements for relevant period – evidence of arrangements not provided in visa application – temporal connection between visa application and provision of relevant evidence – 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 Immigration and Border Protection on 16 June 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 April 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 applicants have provided to the Tribunal a copy of the delegate’s decision record which records on the 16 June 2018, the delegate refused the visa on the basis that the applicants did not meet cl.485.215 of Schedule 2 to the Regulations because they had not provided evidence to the Department that they had adequate health insurance arrangements in Australia. The delegate therefore, found that the applicants did not satisfy the requirements of clause 485.215.

4. On the 16 October 2018, the Tribunal wrote to the review applicants (dispatched by email to the authorised recipient) inviting the applicants to give evidence and present arguments at a hearing on 14 November 2018 at 10.30am. 

5. On 13 November 2018 the Tribunal received a submission from the applicants’ representative containing documentation on behalf of his clients. Subsequent to providing this submission on the same day at 6.52 pm the Tribunal received an email from the representative advising that the applicants would not be attending the hearing and requested that the Tribunal make a decision on the documents provided.

6. In accordance with the representatives’ instructions, the Tribunal has had regard to the information presently before it and for the following reasons the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Health insurance requirements

7. The issue in the present case is whether the applicants meet 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.

8. 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 “yes” is recorded.

Assessment of the Evidence

1. The Tribunal has had regard to all the evidence before it that being the Department’s file and the Tribunal’s file. It notes that the visa application was lodged on 18 April 2017 and it was accompanied by various documents regarding the applicant but did not include evidence to support the applicants had adequate arrangements in Australia for health insurance.

2. The delegate’s decision, records that correspondence was sent to the applicant on 18 May 2017 requesting that they provide evidence that they held adequate health insurance from the time the visa application was lodged and that the arrangements were still in place.  The decision further records that as at 16 June 2017, the applicant had not responded to the request to provide supporting evidence, nor indicated that they intended to comply with the request.  Consequently the delegate was not satisfied that the applicants met cl.485.215 and the application was refused.

3. The Tribunal received a submission from the applicants’ representative on the 13 November  2018. It was accompanied by a written statement with documents from the applicant. The attached documents included the following:

   ·An email from [email protected] dated 13 June 2017

   ·Statement by applicant, Ruby Chhetri Karki dated 13 November 2018

   ·Letter from iman Australian Health Plans dated 19 May 2017

   ·Letter from iman Australian Health Plans dated 29 September 2016

   ·Internet banking statement NAB 23 May 2017 to 6 November 2018

   ·NIB Confirmation of Health Cover dated 19 October 2016

   ·Bank statement NAB 6 May 2017 to 6 July 2017

   ·Email from [email protected] dated 19 May 2017

   ·Letter from iman Australian Health Plans dated 21 August 2017

   ·Letter from iman Australian Health Plans dated 5 August 2017

4. The Tribunal has considered the information provided to the Tribunal and accepts that the applicants student health insurance with NIB was valid until 30 June 2017 and that the applicant has held numerous policies with iman Australian Health Plans being policy 39086581 start date 1 April 2017, policy 39086575 start date 19 May 2017 and policy 37033293 start date 29 September 2016.  Bank records provided by the applicant show that from 23 May 2017 the applicant has made regular monthly payments for policies 39086575 and 39086581.  There is no financial evidence before the Tribunal to support payment of policy 37033293. Accordingly, the Tribunal is satisfied that the applicants have continued to maintain adequate health insurance for the purposes of cl.485.215(2).

5. However, the Tribunal must also be satisfied that their application, when made, was accompanied by evidence that they had adequate health insurance arrangements, as required by cl.485.215(1).

6. In her written statement the first named applicant, Ruby Chhetri Karki (the applicant) claimed that she had maintained health insurance coverage over the required periods. The applicant states “ we had an insurance policy in November 2016 for subclass 485 attached (IMAN _29-09-2016_37033293) followed by OHSC attached (OHSC_Ruby) during the period just before application both of which we have provided to the department previously and as such believe they should have record of the same.” The applicant submits that her husband was responsible for providing information to the Department as during the time the Department requested evidence of health insurance, she was residing in Tasmania. No evident reason is provided as to why the evidence was not provided to the Department. The applicant states “ Whether it was my husband genuine mistake or carelessness, even after repeated request from my agent, my husband has informed that there might some system issue and that he has contacted the provider. “  The applicant submits that “ We have held the insurance during and at the time of decision. We believe as such that the requirement is and should be met.”  The applicant is of the view that the Tribunal consider this matter as at the time of decision.

7. In considering the applicant’s claims, the Tribunal notes Departmental policy in this regard which states that:

   “ 10. Adequate arrangements for health insurance

   10.1 Overview

   To satisfy 485.215, at the time the application was made it needs to have been accompanied by evidence that the applicant: (Tribunal emphasis)

   Had adequate arrangements in Australia for health insurance; and has had adequate arrangements in Australia for health insurance since the time the application was made. That is, to cover the period between when the application was made and when the decision maker is assessing the application (known as the time of decision).

8. While the Tribunal acknowledges it is not bound by policy, it considers it is consistent with the relevant legislative provisions, and in the circumstances of this application, sees no reasons to depart from it. The Tribunal therefore gives little weight to the applicant’s claim that they had previously provided the Department with their health insurance details as part of a previous visa application, as the issue before it, is whether their visa application lodged on the 18 April 2017 was accompanied by the relevant evidence.

9. 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 subsequently providing this evidence to the Tribunal on the 13 November 2018, over 19 months after the visa application was made. In doing so, the Tribunal has considered case law regarding the phrase ‘accompanied by evidence’.

10. 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…

11. 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.  It is for this reason that it does not agree with the applicant’s submission that the Tribunal take into consideration the evidence that the applicant has now provided, in that they meet the provision at the time of decision.  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.

12. 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.

13. In this case, the evidence of health insurance was provided to the Tribunal approximately 19 months after the visa application was made. There is no evidence before the Tribunal to suggest that the applicant notified or attempted to provide this information to the Department despite the Department requesting on the 18 May 2017 that this evidence be provided.

14. Having considered the case law discussed above, the Tribunal is not persuaded that in this case, there is a temporal connection between the visa application and the provision of the relevant evidence, given that a period of approximately 19 months elapsed and that there is no evidence before the Tribunal to suggest that the applicant notified or attempted to provide this information to the Department.

15. The Tribunal acknowledges the dismay of the applicant that their application was refused for what she considers to be a “small and silly thing”; however, it must apply the legislation as it stands and considers that cl.485.215 is clear.  The Tribunal therefore for the reasons set out above, 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 applicants do not satisfy cl.485.215(1) and therefore do not satisfy cl.485.215.

16. Based on the Tribunal’s findings it follows that the applicants do 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

17. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Karen McNamara
    Member