Groeneveld (Migration)
[2021] AATA 2573
•9 June 2021
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 affirmedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.215STATEMENT 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 whether the applicant meets the requirements of cl 485.215 of Schedule 2 to the Regulations.
Clause 485.215(1) requires that when the visa application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance. Clause 485.215(2) requires that the applicant has had adequate arrangements in Australia for health insurance since the time the application was made. Both requirements must be met.[1]
[1] Ahmed v Minister for Immigration and Anor [2020] FCCA 622.
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.
The delegate’s decision notes that the applicant did not provide any evidence of health insurance. The applicant confirmed at the hearing that she did not provide a copy of any health insurance documents to the Department. The Tribunal asked why no evidence of insurance arrangements had been provided to the Department when the application was made and the applicant told the Tribunal that she didn’t realise she needed to provide evidence of her old insurance as that was continuing on and she thought the Department had details of her insurance already from her student visa. She said she had OSHC in place until 31 March 2020. She said that answering ‘No’ to the question asking about her health insurance was a mistake.
In written submissions the applicant stated that:
First, I did prepare and lodge the subclass 485 visa application by my self without any assistance from anyone. Therefore, I had no chances to get corrected any mistake done by me on this application. When applying for my graduate visa 485 I had accidently selected that I did not have health insurance even though I was still covered by my old Overseas Student Health Cover (OSHC) which expired on the 31st of March 2020. I was not aware of this accidental mistake of mine until I receive the refusal letter of my graduate visa application. Evidence of my OSHC provided with the application for your kind consideration.
Second, While I prepared this application, I was suffering domestic violence by my previous boyfriend, with whom I was living in the same house. Due to that abusive relationship, I was bound to leave my house and lived in one of my friend’s couch since 13 January 2020. Due to my work and ongoing abusive relation issues I was not able to pay required attention on my graduate visa subclass 485 application. I also did not had access of my belongings as well as my computer and passport until 24 January 2021 as I left home without those belongings to avoid abuse at that time. I was also passing stressful time due to my Nursing registration, looking for jobs and ongoing work commitment. Above mentioned situations also hinder my ability to attach any supporting documents with my application soon after I lodge my application.
Third, I was on the process to purchase the health cover after my student visa expires on 15 March 2020 and before my OSHC expires on 31 March 2020. Unfortunately, I did not get that opportunity as the case officer made the decision on 9 March 2020 without asking any supporting documents, even though I was covered by OSHC at the time of decision also was on my student visa. I did purchase my Overseas Visitor Health Cover (OVHC) on 9 March 2020 which is continuing.
The applicant’s representative submitted that the applicant was not represented when she made the application and the Department’s system did not sufficiently warn her that she needed to provide evidence of health insurance arrangements. He compared this to the system for submitting a student visa application where he contended there were warnings for applicants regarding supporting documents which were required. He submitted that the applicant had made a genuine error and deserved a second chance.
The Tribunal explained that it did not have evidence before it as to the Department’s processes with respect to student visas as compared with the current visa application. In any event, the Tribunal explained that it did not regard that the absence of warnings within the online system, assuming that to be the case, could impact the criteria for the visa or the issues for determination by the Tribunal. The Tribunal’s task is to determine whether the applicant meets the criteria. Even in circumstances of misleading or confusing information from the Department, including in circumstances where the application form for the visa was misleading, the Tribunal’s role was restricted to performing this task.[2]
[2] With respect to the issue for the Tribunal, see Sandhu v MIBP [2013] FCCA 2285; Mohamed Farook v MIBP [2014] FCA 1017 at [55]; and Kumar v MIBP [2014] FCA 1336 at [43].
The Tribunal explained that regardless of the reasons for the applicant not meeting the primary criteria, they must be met. The Tribunal explained to the applicant that the requirements of cl 485.215 includes the requirement that when the application was made, it was accompanied by evidence the applicant had adequate arrangements in Australia for health insurance. The Tribunal explained that there was a temporal element to this requirement, that is that the evidence accompany the visa application at the time the application was made.
The applicant submitted to the Tribunal on 23 May 2021, a ‘Certificate of Insurance’ for OSHC Essentials – Single Plan with Allianz Global Assistance from 1 February 2017 to 31 March 2020. The Tribunal accepts on the evidence that the applicant held a student health insurance policy (OSHC) from 1 February 2017 to 31 March 2020. The applicant also provided a letter confirming commencement of OVHC with Bupa from 9 March 2020. The Tribunal also accepts that the applicant took out a policy with Bupa for OVHC from 9 March 2020.
However, cl 485.215 requires that when the visa application was made, it was accompanied by evidence the applicant had adequate arrangements in Australia for health insurance. Accordingly, the Tribunal must also be satisfied that when the application was made it was accompanied by evidence that the applicant had adequate health insurance arrangements in Australia, as required by cl 485.215(1).
The Tribunal has considered whether the applicant has met this requirement by evidence submitted to the Tribunal on 23 May 2021 that she held health insurance at the time the application was made. The Tribunal notes this information was provided more than a year after the visa application was made, and following the delegate’s decision refusing the visa application.
The Tribunal notes the applicant lodged her application with the Department on 2 January 2020 and that the delegate made a decision to refuse the visa on 9 March 2020, on the basis of information before them. The applicant confirmed before the Tribunal that she did not provide evidence to the Department regarding her health insurance arrangements prior to the delegate’s decision being made.
While the Tribunal accepts that there may have been personal reasons why the applicant failed to provide evidence of her health insurance arrangements when the visa application was made, the Tribunal notes that the criterion in cl 485.215(1) specifies that ‘when the application was made’ it ‘was accompanied by’ the specified evidence such that there is no latitude as to the relevant time the criteria is to be met.[3]
[3] Boddu v MIBP [2019] FCCA 879 at [27]; upheld on appeal Boddu v MIBP [2019] FCA 1340 at [13]. While the Federal Court in that decision was considering cl 485.213 that clause is relevantly structured in the same terms as cl 485.215(1).
The Tribunal notes that the Full Court of the Federal Court has held that the words ‘accompanied by’ establish an objective temporal test, that is, an application is either accompanied by the necessary evidence or it is not.[4]
[4] Khan v MIBP [2018] FCAFC 85 at [15]. See also Shrestha v MHA [2019] FCA 1843. While the Full Court in Khan was considering cl 485.223, cls 485.213 and 485.215(1) are structured in the same way (‘When the application was made, it was accompanied by evidence’), and the Federal Court followed Khan when construing cl 485.213 in Tauqueer v MICMSMA [2019] FCA 1883 at [26] and [27]. As noted above, cl 485.213 is expressed in the same terms as cl 485.215(1).
In the applicant’s case, the evidence of health insurance was provided to the Tribunal more than a year after the visa application was made and following the delegate’s decision. There is no evidence before the Tribunal suggesting that the applicant notified or attempted to provide this information to the Department.
While the Tribunal has sympathy for the applicant’s circumstances, the Tribunal explained that it does not have any discretion to waive this requirement. It explained that to meet the requirement the applicant had to provide evidence when the visa application was made that she had adequate arrangements in Australia for health insurance.
Having considered the relevant case law, the authorities make it clear that inclusion of the requirement that ‘when the visa application was made, it was accompanied by evidence’ establishes an objective temporal test.[5] Even in the event there is some flexibility in the temporal requirement, it does not import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant: ‘The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not’.[6]
[5] Khan v MIBP [2018] FCAFC 85 at [15].
[6] Khan v MIBP [2018] FCAFC 85 at [15].
For the reasons set out above, the Tribunal 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 applicant does not satisfy cl 485.215(1) and therefore does not satisfy cl 485.215.
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 Burford
Member
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