Gurung (Migration)

[2022] AATA 1409

Gurung (Migration) [2022] AATA 1409 (11 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rick Kola Gurung

REPRESENTATIVE:  Mrs Jasmine Claire Sallis (MARN: 1800400)

CASE NUMBER:  2113358

HOME AFFAIRS REFERENCE(S):          BCC2020/1062611

MEMBER:Warren Stooke AM

DATE:11 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl 485.215 of Schedule 2 to the Regulations.

Statement made on 11 May 2022 at 4:55pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health insurance requirements – evidence of cover not provided with visa application – evidence of cover at time of application provided to tribunal – completed study and current work – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulation 1994 (Cth), Schedule 2, cl 485.215

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 28 September 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 March 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 485.215 of Schedule 2 to the Regulations because the applicant responded “no’ on the application regarding having health insurance and did not provide evidence of health insurance with the submitted application for a 485 visa.

4. The applicant appeared before the Tribunal on 11 May 2022 to give evidence and present arguments.

5. The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he answered “no” on the application regarding the possession of health insurance and that he did not provide enough evidence to prove he had health insurance.

6. The applicant stated that he provided a copy of the delegate’s decision to the Tribunal with his application for review.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant provided evidence of maintaining health insurance in accordance with cl.485.215 at the time of application.

   Health insurance requirements

10. 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; and secondly, that the applicant has had adequate arrangements in Australia for health insurance since the time the application was made.

11. The applicant provided evidence that he has a Bridging Visa A that was granted on 8 March 2020 with an 8501 obligation to maintain health insurance. The BVA commenced on 15 March 2020 when his Student (Temporary) visa ended.

12. The applicant provided evidence that he has a Bachelor of Nursing from La Trobe University after graduating on 10 December 2019.

13. The applicant stated that he is working as a registered nurse at the Kew Gardens Aged Care.

14. The applicant provided evidence that he has maintained health insurance as follows:

    a.Health Insurance Allianz –commenced on 23 March 2018 and ended 20 May 2020;

    b.BUPA Health Insurance – commenced 18 March 2020

15. Based upon the documentary evidence available prior to hearing and the oral evidence provided at hearing, the Tribunal is satisfied that the applicant maintained health insurance at the time of application, which has continued to the time of hearing.

16. Therefore, the applicant satisfies cl. 485.215.

17. It follows that the applicant does satisfies the criteria for the grant of a Subclass 485 visa.

18. Therefore, the applicant satisfies cl 485.215.

19. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

20. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl 485.215 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member