Kaufusi (Migration)

[2022] AATA 1955

Kaufusi (Migration) [2022] AATA 1955 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leaaepeni  Kaufusi

CASE NUMBER:  2113130

HOME AFFAIRS REFERENCE(S):          BCC2018/6195482

MEMBER:Stephen Conwell

DATE:15 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration finding that the applicant meets the following criterion:

·     cl.461.225 in Schedule 2 of the Regulations

Statement made on 15 June 2022 at 5:16pm

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – substantial compliance with conditions of last substantive visa – adequate arrangements for health insurance – not aware of condition – applications for Medicare declined due to ineligibility – acquired health cover immediately after receiving delegate’s decision – no similar condition on current bridging visa – honest and credible evidence – time-of-decision criterion – no provision for compelling or compassionate reasons – ‘complied substantially’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 461.225, Schedule 8, condition 8501

CASES
Baidakova v MIMA [1998] FCA 1436
Kim v Witton (1995) 59 FCR 258

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 22 September 2021 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s. 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (applicant) applied for the visa on 15 January 2019. The delegate refused to grant the visa on the basis that cl.461.225 was not met because the applicant did not substantially comply with the conditions on his last held substantive visa. 

3. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

4. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video hearing via Microsoft Teams. The Tribunal exercised its discretion to hold the hearing in this manner. The parties raised no objections as to conducting the hearing in this manner.

5. The applicant  and his wife, Ms Iunisi Kaufusi (a New Zealand citizen) participated in the hearing by video on 9 June 2022 to give evidence and present arguments.

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

   Background

7. The applicant is a 39 year old citizen of Tonga from which he holds a current and valid passport. He first arrived in Australia in August 2005 on a Temporary (5 year) visa.

8. The last substantive visa he held was a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) (Subclass 461) visa which was valid from 17 January 2014 to 17 January 2019. This visa was subject to condition 8501 relating to the requirement to have health insurance.

9. His current Bridging visa is still in effect and has no conditions attached.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant can be said to have complied substantially with the conditions that applied to his last substantive visa and any subsequent Bridging visa.

11. Condition 8501 states that:  “The holder must maintain adequate arrangements for health insurance while the holder is in Australia.”

12. As noted in the decision record, the Department wrote to the applicant in August 2021, inviting him to provide, amongst other things, evidence of having substantially complied with condition 8501 which attached to his previous visa, that being.  In particular, the applicant was requested to provide evidence of his having held comprehensive health insurance cover during the validity period of his previous visa (from 17 January 2014 to 17 January 2019) or alternatively, show evidence of having reciprocal Medicare access during this period.

13. On 30 August 2021, the applicant provided evidence of his life insurance policy to the Department. The Department replied by advising him that he had further time in which to submit evidence to satisfy the request. On 7 September 2021 the applicant submitted a statutory declaration in which he describes having applied for Medicare several times only to be declined due to ineligibility.  The applicant also claims that he was not aware of his obligation under his visa to maintain adequate health insurance.

14. In an undated letter , the applicant’s wife responded to the Department on his behalf, stating,

    To whom it may concern

    Dear Sir/Madame

    I Iunisi Kaufusi wife of Leaaepeni Kaufusi writing you this letter in support of my husband’s visa
    application. I was not aware that he had to provide a police check and neither did he anyways Leaaepeni and I met in New Zealand 2010 and started our relationship there. I then moved here with my two girls from previous relationships for a better life for them in 2011 and Leaaepeni followed us here in 2012.

    We got married in 2013 and had two more children both were born here in Shepparton Victoria

    Australia and both are now in primary school while the two older girls are in high school here as well.
    Leaaepeni has been a loving father to not only our two children together but to my girls as well he has
    been there for them in everything providing for us, taking care of us physically, mentally and spiritually.

    Leaaepeni also is the primary source of income for our little family and our home has been a shelter for many others during this pandemic. Leaaepeni is a supervisor and was a sub-contractor at his workplace he provides jobs for people who had no jobs during this hard time. The kids and I will be devastated and so does many others at work who depends on him if anything happen to him or his visa will not be approved.

    Kind regards

    Iunisi Kaufusi

15. According to his testimony at the hearing the applicant and his family have lived continuously in Shepparton, Victoria since his first arrival in Australia in 2014.  Since 24 September 2014 he has been in full-time employment with a local pallet manufacturer.

    Has the applicant complied substantially with conditions on his last held substantive visa?

16. The New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa is a temporary visa which contains one subclass: subclass 461. The criteria for the grant of a subclass 461 visa are set out in Part 461 of Schedule 2 to the Regulations.

17. Clause 461.225 of Schedule 2 to the Regulations states:

    If the application is made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

18. Clause 461.225 of Schedule 2 to the Regulations is a time-of-decision criterion, that is, it is a criterion which must be satisfied at the time of the delegate’s decision, or upon review at the time of this Tribunal’s decision. 

19. In considering this review, the Tribunal must apply the words of the relevant clause, that is, cl.461.225 to the facts of this case.  In reviewing this decision, the Tribunal also had regard to, but is not bound by, the Department’s policy guidance set out in its Procedures Advice Manual (PAM3) which relevantly states:

    8 What does “substantial compliance” mean

    The requirement is that the compliance must have been ‘substantial’. As ‘substantial’ is not defined in the Regulations, it has its ordinary (dictionary) meaning.

    Generally, the term ‘has complied substantially’ implies that there be some compliance with a condition and the criterion would not be considered satisfied if there has been no compliance by the applicant with an imposed condition.

    The criterion is unlikely to be satisfied if there has been partial compliance only - for example, if a visitor complied with the “no work” condition for 1 month, but worked for the remaining 5 months of their visa stay period.

    Note: There are some conditions (or parts of conditions) for which there is no scope for operation of the distinction between strict compliance and substantial compliance. Therefore, when interpreting compliance with some conditions, the concept of ‘substantial’ compliance has no logical application; the applicant either has complied or has not.

    9 ​Has the person complied su​bstantially

    9.1 Relevant considerations

    In assessing whether a person has ‘complied substantially’ with a visa conditions, officers must consider:

    ·whether the applicant complied with conditions such as work restrictions, study conditions or any other conditions, imposed on their last held substantive visa

    and

    ·if the applicant has since been granted an intervening bridging visa, whether the applicant has complied with the conditions of the intervening bridging visa as well as with the conditions of their last held substantive visa.

    9.2 All circumstances must be considered

    In assessing whether the criterion is satisfied or not, officers are to take account of all circumstances of the applicant and consider each case on its own merits.

    9.3 Why did the applicant not comply

    In some cases, the reasons why the applicant has not complied with a visa condition/s might be relevant in determining whether their compliance was ‘substantial’.

    An applicant may be considered to have ‘complied substantially’, for example, if they would have complied with the condition but for some circumstances beyond their control which lead to their non-compliance. (For examples (if any), first see the PAM3: Sch 8 instruction for the visa condition in question.)

20. The Tribunal considers that an assessment of cl.461.225, and in particular whether the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant and to any subsequent bridging visa, requires a retrospective assessment which identifies the relevant visa(s), the conditions (if any) that apply or applied to those visa(s) and the extent to which those conditions have been complied with.  In this case, the Tribunal identifies the relevant visa as the New Zealand Citizen (Family Relationship) (Temporary) (Class UP) (Subclass 461) visa, which the was granted to the applicant for the period from 17 January 2014 to 17 January 2019, with Condition 8501 (Health Insurance) attached to that visa.

21. In Kim v Witton(1995) 59 FCR 258 at [271], Sackville J considered the relevant circumstances in that case to include:

    ·the nature of the breach of condition;

    ·the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

    ·whether or not the applicant deliberately flouted the condition; and

    ·if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

22. The Tribunal however acknowledges that these factors are not intended to be strictly prescriptive or exhaustive and that in general it is a matter for decision-makers to assess the weight to be accorded to such factors, having regard to the circumstances of the case.

    Did the applicant maintain adequate arrangements for health insurance between  January 2014 to January 2019?

23. Condition 8501 required the applicant to maintain adequate arrangements for health insurance whilst he was in Australia during the course of the Subclass 461 visa he held from 17 January 2014 to 17 January 2019.  The applicant advised the Department that because of his ignorance of the health insurance condition attaching to that visa, he never held any health insurance during the entire term of his last substantive visa.

24. The applicant told the Tribunal that he and his wife they were entirely unaware of the health insurance condition attaching to his last substantive visa. The Tribunal notes that it is the responsibility of every applicant to be aware of the conditions attaching to their visa.

25. The applicant confirmed to the Tribunal that he had made several attempts at securing cover via Medicare but was advised that he was ineligible.

26. The Tribunal is of the view that “health insurance cover” requires proof of a contractual arrangement, whereby a policy document sets out the necessary details of the health insurance provided, i.e. the name of the insurer and of the insured, the term and level of the insurance cover and the general and specific terms, conditions and exclusions attaching to the health insurance policy.    

27. The Tribunal considers “an adequate level of health insurance cover” means a satisfactory monetary level of insurance cover for a reasonable period of time which is otherwise subject to the contractual aspects of an insurance policy as described in the preceding paragraph.

28. The applicant confirmed to the Tribunal that he had failed to maintain health insurance for the entire period of his last substantive visa. The Tribunal is therefore satisfied there was a breach of condition 8501 which attached to the applicant’s last substantive visa. The applicant’s breach is significant as the condition is an important prerequisite for grant of a Subclass 461 visa.

29. In relation to the Bridging visa currently held by the applicant, the Tribunal accepts that no such condition applies.

    Whether or not the applicant deliberately flouted the condition

30. The applicant and his wife were plainly ignorant of the requirement and he did not have the benefit of engaging a migration agent. The parties were under the misapprehension that the grant of the previous visa to the applicant meant that the visa application process was complete; they did not expect or envisage that the visa granted to the applicant may carry conditions by which the applicant must abide. The parties only realized the applicant’s problem when they received adverse correspondence from the Department regarding the issue. The parties immediately rectified the breach by purchasing health cover from BUPA in favour of the applicant. The Tribunal is satisfied, on balance, that the applicant did not deliberately flout the condition.

    if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

31. The applicant failed to appreciate the apparent breach, due to his ignorance of the appropriate migration law and from a misplaced expectation that the Department would advise him of any duties and obligations which his last substantive visa might impose upon him. There is no evidence that the Department misled the applicant.

32. Ultimately, in making its decision as to whether or not an applicant has complied substantially with a condition, the Tribunal will assess the particular circumstances of the  matter before it. It is a question of fact for the Tribunal, having regard to the wording of the condition itself, the applicant’s conduct and any other relevant considerations (including the factors identified in Kim v Witton).

33. In Baidakova v MIMA [1998] FCA 1436 Katz J referred to a failure of ‘substantial compliance’ by the applicant because he ‘had failed to do so through innocent error’. Such was the explanation made by the applicant for what was considered a significant breach of condition 8501. The applicant in that case argued before the Federal Court that in determining whether there had been substantial compliance the Tribunal was required to consider both "quantitative" and "qualitative" matters. Justice Katz in Baidakova appeared to accept the proposition that "qualitative" matters could be considered in determining whether there had been ‘substantial compliance’ with a visa condition. The Court on appeal found that the Tribunal had not made an error of law as it had clearly considered the "qualitative" aspects of the applicant’s compliance with the condition.

34. The Tribunal has had the benefit of oral testimony from the applicant and his wife during the hearing. The Tribunal found both parties to be honest and credible witnesses.

35. The Tribunal notes the relevant legislative provisions pertaining to compliance with visa conditions does not allow for consideration of “compelling or compassionate reasons” as to why a person who has been found to have not substantially complied with their visa conditions, should be allowed to remain in Australia.  Therefore such a consideration is not  relevant in this review.

36. Nevertheless, for the purpose of providing context, the Tribunal notes that the applicant’s employer submitted a letter of reference to the Department in May 2021 in support of the applicant. The letter speaks to the applicant’s diligence, competency and integrity as an employee and to the importance of his role as a supervisor to the successful operation of their factory.  There are further letters of support and commendation in the Department file – from the applicant’s church minister, his mother-in-law and from the two elder children in his family.  It further notes that the applicant is the main breadwinner to his family, comprised of his wife and four children aged, 17, 15, 7 and 6 years of age.  As previously mentioned, the two older daughters are not the applicant’s biological children, however it is clear that they accept and respect him as a ‘father figure’.

37. The applicant’s non-compliance with the condition during the entire period of his last substantive visa necessitates, in the Tribunal’s view, considerations of the ‘qualitative’ considerations discussed in Baidakova. In the Tribunal’s view these factors are his ignorance of migration law and his misapprehension that the grant of his visa meant that the visa application process and was complete and that his obligations had been satisfied. There is also the applicant’s naïve and misplaced expectation that the Department would alert him to any matters of import which might concern his last substantive visa.  

38. As noted previously, the Tribunal observes that it is the responsibility of every applicant to be aware of the conditions attaching to their visa. Nevertheless, having regard to the "qualitative" aspects of the applicant’s non-compliance with the condition it is apparent to the Tribunal that he did not ‘deliberately flout the condition’. Rather he failed to make the appropriate health arrangements ‘through innocent error’. Once aware of his mistake he immediately rectified the breach by acquiring health insurance as required, soon after receiving the delegate’s decision.

39. The Tribunal finds, therefore, that the applicant has ‘complied substantially’ with condition 8501 and, consequently, meets clause 461.225 in Schedule 2 of the Regulations.

    DECISION

40. The Tribunal remits the matter for reconsideration finding that the applicant meets the following criterion:

    ·     cl.461.225 in Schedule 2 of the Regulations

    Stephen Conwell
    Member