Chu (Migration)

[2019] AATA 2111

Chu (Migration) [2019] AATA 2111 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tak Cheng Tiffany Chu

CASE NUMBER:  1909793

HOME AFFAIRS REFERENCE(S):           BCC2019/490487

MEMBER:Mara Moustafine

DATE:9 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.215 of Schedule 2 to the Regulations.

Statement made on 09 May 2019 at 6:06pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – evidence of adequate health insurance provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 500.211, 500.215, 500.218

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 3 April 2019 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 February 2019. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. 215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she had not provided evidence of adequate arrangements in Australia for health insurance during the period of her intended stay in Australia.

4. The applicant applied for a review of the decision on 18 April 2019. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the criterion in cl. 500.215. That criterion requires that at the time of the decision, the applicant must have provided the Minister with evidence of adequate arrangements in Australia for health insurance during the period of her intended stay in Australia.

7. According to the Department decision record, a copy of which was provided to the Tribunal with the review application, the applicant applied for a Student visa on 15 February 2019. At the time, the applicant submitted Overseas Health Insurance Cover (OSHC) cover until 30/03/2021. On 1 March 2019 the applicant was requested to provide evidence of adequate arrangements in Australia for OSHC until 2 July 2021 within 28 days. However, the applicant did not do so. The Department was, therefore, not satisfied that the applicant met clause 500.215 for the grant of the Student visa and refused the application for the student visa on 3 April 2019.  

8. With her review application the applicant provided her Confirmation of Enrolment which indicated that her proposed study end date was 02/05/2021 and Overseas Health Insurance Cover (OSHC) cover for the period from 16/12/2015 until 27/09/2018. and evidence from Australian Health Management OSHC confirming that the applicant had paid her OSHC covering the period up to 30/12/2022.

9. After considering the available evidence, the Tribunal found that pursuant to section 360(2)(a) of the Act, it should decide the review in the applicant’s favour. Therefore no hearing was required.

10. At the date of the primary decision, the delegate found that the applicant had not provided evidence of adequate arrangements in Australia for health insurance during the period of her intended stay in Australia and therefore did not meet the requirements of clause 500.215.

11. On 18 April 2019, the Tribunal was provided with evidence that the applicant holds health insurance during the entire period of her intended stay in Australia, thereby satisfying the requirements of 500.215. 

12. Accordingly, the Tribunal is satisfied that the applicant meets cl.500. 215.

13. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

14. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.215 of Schedule 2 to the Regulations.

    Mara Moustafine
    Member