De Oliveira (Migration)

[2017] AATA 2017

De Oliveira (Migration) [2017] AATA 2017 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cristiane DE OLIVEIRA

CASE NUMBER:  1712127

DIBP REFERENCE(S):  BCC2016/3921232

MEMBER:Bridget Cullen

DATE:5 October 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223B of Schedule 2 to the Regulations.

Statement made on 05 October 2017 at 11:42am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Health insurance – Representative failed to provide evidence – Evidence of health insurance provided to tribunal

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 457.223B

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 on 19 May 2017 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 22 November 2016. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.457.223B was not met because the Applicant failed to provide the Department with any evidence of arrangements for health insurance during the period of the applicant’s intended stay in Australia.

4. The applicant was represented in relation to the review by her 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 issue in this case is whether the applicant meets the criteria contained in cl.457.223B.

7. The Department did not assess the remaining criteria of Clause 457, as the applicant did not appear to satisfy the criterion contained in cl.457.223B, requiring her to have health insurance.

8. To find that the applicant meets the criterion contained in cl.457.223B, the Tribunal must be satisfied that the applicant has, at the time of decision, adequate arrangements for health insurance in place for the period of her intended stay in Australia.

9. Regrettably, the applicant’s representative failed to provide the applicant’s evidence about her health insurance to the Department.  The Department wrote to the applicant, via her representative, on 19 January 2017 and provided her with 28 days to provide evidence that she had adequate health insurance for the duration of her stay.  No response was received, and accordingly, the Department refused her application.

10. On 7 June 2017, the applicant’s representative wrote to the Tribunal, and provided the following information:

    “In fact Ms de Oliveira did hold the required insurance, effective from 19 January 2017 and still current. Proof of that insurance is attached to the AAT application for review. As her registered migration agent, Business Link International did not attach this evidence to the visa application despite Ms de Oliveira having supplied it to our office on the 19^th January 2017.”

11. Although the applicant’s representative indicated in the 7 June 2017 letter that the applicant had current Bupa Essentials Visitors Cover with Silver Extras, effective as at 19 January 2017, there was no proof of currency (or continuation during the period of review) provided.  As such, the Tribunal requested information from the applicant, and the applicant has responded.

12. The BUPA Membership Document dated 19 January 2017 indicates that the insurance policy will continue “subject to receipt of the relevant premiums”.  The applicant has provided a payment statement from Bupa dated 13 September 2017, indicating that premiums are charged on a monthly basis.  The payment statement indicates that she has had continual health insurance coverage for the period between 19 January 2017 and 19 September 2017.  The BUPA payment further indicates that all monthly payments have been timely paid. 

13. The Tribunal accepts that information provided by the applicant of continuity of coverage, along with timely payment, and the continuing nature of the policy provided that payments are made, is evidence that the applicant has adequate arrangements for health insurance during the period of her intended stay in Australia. Accordingly, I find that cl.457.223B has been met by the applicant.

14. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

15. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223B of Schedule 2 to the Regulations.

    Bridget Cullen
    Member