GURUNG (Migration)

This matter concerned an appeal by Mr Gurung against a decision of the Administrative Appeals Tribunal (the Tribunal) affirming the refusal of his application for a Skilled (Provisional) (Class VC) visa, Subclass 485, Graduate Work stream. The core of the dispute revolved around Mr Gurung's failure to provide adequate evidence of health insurance arrangements in Australia at the time of his visa application and continuously thereafter, as required by the Migration Regulations.

The Tribunal was required to determine whether Mr Gurung met the requirements of clause 485.215 of Schedule 2 to the Migration Regulations. This clause mandates that an applicant must provide evidence of adequate health insurance arrangements in Australia at the time of the visa application and that such arrangements must have been maintained since the application was made. The Tribunal also had to consider whether Mr Gurung's explanation for the lack of evidence constituted a valid reason for non-compliance, despite the absence of discretion in applying the regulatory requirements.

The Tribunal found that Mr Gurung did not provide any evidence of adequate health insurance with his visa application. While he later submitted a letter from BUPA indicating Overseas Student Health Cover (OSHC) until March 2017, the Tribunal noted that OSHC is only valid for student visa holders, and Mr Gurung's student visa had ceased in September 2016. The Tribunal accepted that Mr Gurung made an innocent mistake by uploading the BUPA letter in error, attributing it to being on holiday and having many things on his mind. However, the Tribunal emphasised that it had no discretion and was bound to apply the law as written. The evidence showed that Mr Gurung and his wife only had health insurance with IMAN from December 2016, which was after the visa application date and after the Department had requested further information.

Consequently, the Tribunal concluded that Mr Gurung did not satisfy the health insurance criteria for the Subclass 485 visa. As this was the only relevant visa subclass in question, the Tribunal affirmed the decision not to grant the visa.