Kaur (Migration)

[2020] AATA 4128

Kaur (Migration) [2020] AATA 4128 (17 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Tanveer Kaur

CASE NUMBER:  1811891

HOME AFFAIRS REFERENCE(S):          BCC2018/1093169

MEMBER:Kira Raif

DATE:17 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 17 September 2020 at 12:28pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health insurance – application to be accompanied by prescribed evidence – human error – held an appropriate health cover at the time of application – statutory requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.215

CASES
Anand v MIAC [2013] FCA 1050

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 6 April 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 March 2018. The delegate refused to grant the visa because the applicant did not satisfy cl.485.215 of Schedule 2 to the Regulations because the application was not accompanied by evidence of health insurance. The applicant seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 14 September 2020 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. Visa Class VC contains Subclass 485. 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, that the applicant has had adequate arrangements in Australia for health insurance since the time the application was made.

   Health insurance requirements

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application on 8 March 2018 and stated ‘no’ in response to the question on the application form ‘do you hold health insurance’. The delegate noted that according to the Departmental systems, the applicant did not provide evidence of health insurance with the application.

7. The applicant provided a written submission to the Tribunal on 20 August 2020. The applicant provided evidence that she held the relevant health cover in March 2018 when the application was made. The applicant notes that she previously held a Student and a condition of that visa was that she was a holder of a health cover. The applicant states that she held the relevant health cover at the time of lodgement even if the visa application was not accompanied by evidence of health cover. The applicant concedes that she answered ‘no’ on the application form in response to the question about health cover which was a mistake. The applicant states that she has been a law-abiding citizen and she provided her police certificate, as well as various health insurance papers.

8. In oral evidence the applicant said there was a human error as she had sent  the documents to the lawyer who submitted all the documents but not the health cover and it was uploaded a little late. The applicant concedes that the application was not accompanied by evidence of health insurance but said such evidence was provided the day after the application was made.

9. The Tribunal invited the applicant to provide evidence that information concerning health insurance was submitted with the application or shortly after the application was made. In response to the Tribunal’s request, the Tribunal received a submission from the applicant’s representative on 15 September 2020, AusVisas Migration Services Pty Ltd stating that evidence of health insurance was not submitted with the application and when they made contact with the Department to provide such evidence, they were told that it would not be considered because it was too late. The representative states that she acted on advice from the Departmental officer. The Tribunal does not comment on the accuracy of such advice, but would have expected a registered migration agent to act on the basis of their knowledge of the law, including authorities such as Anand v MIAC [2013] FCA 1050.

10. The representative also submits that the applicant did have the health cover and complied with all visa conditions and should therefore be granted the visa. That submission appears to overlook the statutory requirements.

11. The Tribunal accepts that the applicant held an appropriate health cover at the time the application for the visa was made. However, that is not the statutory requirement. The Regulations do not only require the applicant to have a relevant health cover. The Regulations provide that the application for the visa must be accompanied by evidence of health insurance arrangements in Australia. That is a different requirement. It is not sufficient to hold the relevant health insurance. It is also necessary that evidence of such health insurance accompany the application for the visa. In this case, this was not done. While the Tribunal acknowledges that the applicant may have made a mistake by providing an incorrect answer on the application form, there is no suggestion that she included evidence of health cover when the application was made. That would have been sufficient irrespective of the answer on the form.

12. The submission from the applicant’s representative confirms that the applicant had not provided evidence of her health insurance to the Department, even though she did hold the appropriate health cover. The Tribunal is not satisfied that when the application was made, it was accompanied by evidence that the applicant had adequate arrangements for health insurance. The Tribunal is not satisfied the applicant meets cl. 485.215.

    Conclusion

13. It follows that the applicant does 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

14. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Kira Raif
    Senior Member