Groeneveld (Migration) - [2021] AATA 2573

Groeneveld (Migration) [2021] AATA 2573 (9 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Mckenna Dirkje Groeneveld
CASE NUMBER:  2004679
HOME AFFAIRS REFERENCE(S):          BCC2019/6955699
MEMBER:Simone Burford
DATE:9 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 09 June 2021 at 3:47pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health insurance – application not accompanied by required evidence – held adequate health insurance at the time of visa application – objective temporal test – no discretion – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.215
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 9 March 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 applied for the visa on 2 January 2020. 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 health insurance arrangements in Australia. A copy of the delegate’s decision record was provided to the Tribunal by the applicant with their application for review.
The applicant appeared before the Tribunal on 1 June 2021 by telephone to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent who was present at 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 the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
THE ISSUE
The issue in the present case is…

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 2573
Decision Date: 9 June 2021

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, made by the applicant, Groeneveld. The applicant sought review of a decision not to grant the visa, which had been made by the Department of Home Affairs. The review was heard by a member of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had met the requirements of clause 485.215 of the Migration Regulations 1994, which mandates that an applicant for this visa must provide evidence of adequate health insurance arrangements in Australia at the time of application. The Tribunal also considered whether such arrangements had been maintained since that time.

The Tribunal found that the applicant's visa application, lodged on 2 January 2020, was not accompanied by any evidence of health insurance. Furthermore, the applicant had explicitly answered "No" to the question on the application form regarding whether she and any accompanying applicants held health insurance. While the applicant later claimed this was a mistake and that she had Overseas Student Health Cover (OSHC) at the time, the Tribunal noted that the application instructions clearly stated that evidence of adequate health insurance must be attached. The Tribunal applied an objective temporal test, determining that the failure to provide the required evidence at the time of application meant the criterion was not met, and there was no discretion to overlook this deficiency.

Consequently, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a Subclass 485 visa. The decision under review was therefore affirmed.

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 in Australia; 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 2 January 2020. As discussed with the applicant at the hearing, the Tribunal had before it a copy of the Department’s file relating 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. As noted in the delegate’s decision and confirmed by the applicant at the hearing, these documents did not include any evidence relating to the applicant’s health insurance arrangements in Australia. In support of the application for review, the applicant submitted the following documents to the Tribunal:·A letter dated 9 March 2020 from BUPA confirming the applicant’s Overseas Visitor Health Cover (OVHC) commencing 9 March 2020; ·A Certificate of Insurance from Allianz Global Assist confirming the applicant’s Overseas Student Health Cover (OSHC) Essentials – Single commencing 1 February 2017 and ending 31 March 2020;·A bank account screenshot evidencing direct debit payments to Bupa Australia every 4 months from March 2020 to March 2021;·A National Police certificate;·An AIS Reference Page; and·A statement from the applicant dated 24 May 2021. 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 she answered “No” to this question but said that this was a mistake as she had student cover (OSHC) at the time. On the basis of the evidence, the Tribunal accepts that at the time of application the applicant stated ‘No’ to the question ‘Do you and all applicants included in this application hold health insurance’? 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 2 January 2020, 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.

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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