KAMALAINDRAN (Migration)

[2018] AATA 4138

KAMALAINDRAN (Migration) [2018] AATA 4138 (10 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss NUVAETHA ELIANNA KAMALAINDRAN

CASE NUMBER:  1712817

HOME AFFAIRS REFERENCE(S):           BCC2016/4278189

MEMBER:Gabrielle Cullen

DATE:10 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.314 of Schedule 2 to the Regulations.

Statement made on 10 September 2018 at 1:41pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – evidence of overseas health cover – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 500.314

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 and Border Protection on 29 May 2017 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 19 December 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa as a family member of her mother who is to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate refused to grant the visa on the basis that the applicant had not provided arrangements for health insurance as required by cl.500.314 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant, who is a child, appeared before the Tribunal on 27 August 2018. As she is a child evidence was provided on her behalf by her mother, the primary applicant for the visa. The applicant’s father also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. The issue in the present case is whether the applicant has evidence of adequate arrangements in Australia for health insurance as provided for by cl.500.314, which is repeated below.

   The applicant gives the Minister evidence of adequate arrangements in Australia for health insurance during the applicant’s intended stay in Australia.

7. Information provided by the applicant’s mother and that contained within PRISMS records indicates that she is enrolled in a Diploma of Accounting to 3 February 2019. Information provided by the applicant’s mother from Medicare indicates that the applicant has overseas student health insurance cover to 3 February 2019, commencing 3 February 2017.

8. The Tribunal therefore finds that the requirement of cl.500.314 is met.

9. Given the findings above, the appropriate course is for the Tribunal to remit the matter to Minister for reconsideration of the remaining criteria for the visa.

   DECISION

10. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.314 of Schedule 2 to the Regulations.

    Gabrielle Cullen
    Member