Jang (Migration)

[2020] AATA 3634

Jang (Migration) [2020] AATA 3634 (16 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Taeksu Jang

CASE NUMBER:  1833303

HOME AFFAIRS REFERENCE(S):          BCC2018/3186709

MEMBER:Frank Russo

DATE:16 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 16 July 2020 at 9:34am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– evidence of arrangements for health insurance not provided – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362
Migration Regulations 1994, Schedule 2, cl 500.215

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 30 October 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 August 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because at the time of the decision, the applicant had not provided evidence of adequate health cover for the duration of his stay in Australia, as required for the grant of a Student visa.

4. The applicant is a 49-year-old national of the Republic of Korea.

5. The applicant was assisted in relation to the review by his registered migration agent.

6. On 11 June 2020, the applicant was invited to appear before the Tribunal by telephone on 14 July 2020 at 3:30pm, to give evidence and present arguments relating to the issues arising in relation to the decision under review.

7. In the hearing invitation letter, the applicant was requested to provide, at least seven days before the hearing, the following information:

   a.a copy of his current Confirmation of Enrolment (CoE) or other documents that show that he is currently enrolled in a registered course of study, as required for the grant of the Student visa; and

   b.evidence of adequate arrangements for health insurance from an approved provider during the period of his intended stay in Australia for himself and each secondary applicant.

8. The applicant was advised that, if he failed to attend the scheduled hearing and an adjournment was not granted, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

9. The applicant did not respond to the invitation and did not attend the telephone hearing on 14 July 2020 at 3.30pm and the Tribunal has received no explanation.

10. In these circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

13. The issue in the present case is whether the applicant meets the criterion in cl.500.215. That criterion requires that at the time of decision, the applicant must have provided to the Minister evidence of adequate arrangements for health insurance during the period of the applicant's intended stay in Australia.

14. According to the delegate’s decision record, a copy of which the applicant provided to the Tribunal with his application for review, at the time of lodgement of his Student visa application, the applicant declared that he did not hold any overseas student health cover (OHSC) or any other health insurance cover, and as at the date of the delegate’s decision on 30 October 2018, he had not provided any evidence to demonstrate that he holds OSHC.

15. On 19 November 2018 the Tribunal invited the applicant, pursuant to s.359(2), to provide information, including a copy of his current CoE and evidence of adequate arrangements for health insurance from an approved provider during the period of his intended stay in Australia. The applicant was requested to provide this information in writing by 3 December 2018.

16. In response to this invitation, on 3 December 2018 the applicant’s agent provided the Tribunal with copies of the applicant’s CoEs for Certificates III and IV in Business Administration and a Diploma of Leadership and Management, but requested a further week to submit evidence of OSHC, stated that the applicant was interstate at the time and that insurance would be arranged upon his return to Sydney. No further documents, correspondence or responses have been provided by the applicant or his agent to date.

17. As noted above, on 11 June 2020 the applicant was invited to appear before the Tribunal by telephone. The hearing invitation requested the applicant provide, at least seven days before the hearing, evidence of adequate arrangements for health insurance from an approved provider during the period of his intended stay in Australia.

18. The applicant has not provided the Tribunal with any evidence of arrangements for health insurance, despite two invitations to do so and a request from his agent in December 2018 for an extension of one week to provide evidence of such insurance cover.

19. There is no evidence before the Tribunal that the applicant has current OSHC. Therefore the Tribunal is not satisfied that at the time of this decision, the applicant has adequate arrangements for health insurance during the period of his intended stay in Australia.

20. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.215.

21. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Frank Russo
    Member