GURUNG (Migration)

[2017] AATA 709

GURUNG (Migration) [2017] AATA 709 (4 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sujit Gurung
Mrs Neelam Gurung

CASE NUMBER:  1622566

DIBP REFERENCE(S):  BCC2016/3217340

MEMBER:Katie Malyon

DATE:4 May 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 04 May 2017 at 10:06 am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – No evidence of adequate health insurance

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 Immigration on 29 December 2016 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 September 2016. 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 (the Regulations). The common primary criteria set out in Part 485.21 must be satisfied by all applicants.

3. The delegate refused to grant the visas because the first named applicant, Mr Sujit Gurung, did not satisfy cl.485.215(2) of Schedule 2 to the Regulations as there was no evidence provided that the applicants had adequate arrangements in Australia for health insurance since the time the visa application was made. A copy of the delegate’s decision was provided to the Tribunal.

4. Mr Gurung and his wife, the second named applicant, appeared before the Tribunal on 21 April 2017 to give evidence and present arguments.  

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue is whether Mr Gurung meets the requirements of cl.485.215 of Schedule 2 to the Regulations.

   Health insurance requirements

7. 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, the applicant has had adequate arrangements in Australia for health insurance since the time the application was made.

8. When applying for his Subclass 485 visa, Mr Gurung did not provide any evidence to show that he and his wife had arrangements in Australia for health insurance.  The Department wrote to him on 29 November 2016 requesting evidence that the couple had adequate arrangements for health insurance since Mr Gurung’s Subclass 485 visa application was made.  The Department’s letter states “If you held an Overseas Student Health Cover (OSHC) at the time if your application, you will need to provide evidence that you have non-OSHC insurance arrangements in place” (emphasis added).  In response, Mr Gurung uploaded a letter from BUPA dated 15 May 2016 stating that Mr Gurung and his wife were covered by OHSC for the period from 30 June 2016 until midnight 29 March 2017.  No further documentation was provided.

9. Accompanying Mr Gurung’s application for the review to the Tribunal is a letter from IMAN Australian Health Plans (IMAN) dated 29 December 2016 (that is, the same day that the delegate refused the visa application) confirming Mr Gurung and his wife have health insurance in place commencing on 29 December 2016.

10. During the hearing, the Tribunal explained the requirements in cl.485.215 of Schedule 2 to the Regulations. It also explained that it has no discretion in the matter and must apply the law. Mr Gurung indicated he understood. He said he uploaded the BUPA letter (about having OSHC) in error. He added it was a total blunder owing to the fact that he had just recently come back from holidays overseas and had a lot of things on his mind.

11. The Tribunal has had regard to the evidence before it and accepts Mr Gurung made an innocent mistake.  However, as explained during the hearing, the Tribunal has no discretion in these matters and must make its decision in accordance with the law.

12. As noted above, no evidence was provided with Mr Gurung’s Subclass 485 visa application to show that he had adequate arrangements in Australia for health insurance.  The Tribunal has considered the letter regarding health insurance from BUPA about having OSHC until 29 March 2017.  However, OSHC is valid only for Student visa holders.  As indicated by the Department’s records, Mr Gurung’s Student Subclass 573 visa and that of his wife ceased on 30 September 2016.  Accordingly, their OHSC also ceased on that date.  Since then, Mr Gurung and his wife have held either Bridging A visas allowing them to remain in Australia pending the outcome of the current application, or Bridging B visas allowing them to travel overseas and return to Australia.  Documentation lodged with the Tribunal confirms that Mr Gurung and his wife have had health insurance in place with IMAN only since 29 December 2016, not since the time he made his Subclass 485 visa application on 28 September 2016.  

13. Having regard to the evidence provided, the Tribunal finds that Mr Gurung did not have adequate health insurance arrangements in Australia since the time his Subclass 485 visa application was made on 28 September 2016.  

14. Accordingly, the Tribunal finds the primary applicant does not satisfy cl.485.215 of Part 2 of Schedule 2 of the Regulations.

15. It follows that the applicants do 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

16. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Katie Malyon

    
    Member