Khatiwada (Migration) - [2022] AATA 1839

Khatiwada (Migration) [2022] AATA 1839 (23 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Nikita Khatiwada
Mr Sudip Neupane
REPRESENTATIVE:  Mr Nishant Sharma (MARN: 1568498)
CASE NUMBER:  2117686
HOME AFFAIRS REFERENCE(S):          BCC2020/2732576
MEMBER:Warren Stooke AM
DATE:23 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 23 May 2022 at 3:03pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – applicant did not have health insurance at the time of application –decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.215
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 November 2021 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 30 November 2020. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 485.215 of Schedule 2 to the Regulations because the applicant responded “no’ on the application regarding having health insurance and did not provide evidence of health insurance with the submitted application for a 485 visa.
The applicants appeared before the Tribunal on 18 May 2022 to give evidence and present arguments.
The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that the refusal was because of the health insurance.
The applicant stated that she provided a copy of the delegate’s decision to the Tribunal with her application for review.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant provided evidence of maintaining health insurance in accordance with cl.485.215 at the time of application.
Health insurance requirements
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.
The applicant was granted a Bridging…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 1839
Decision Date: 23 May 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a Skilled (Provisional) (Class VC) visa, subclass 485. The applicant contended that she had made a genuine mistake regarding her health insurance obligations at the time of her visa application. The Tribunal was required to determine whether the applicant had provided evidence of maintaining adequate health insurance in Australia at the time her visa application was made, as required by clause 485.215 of the Migration Regulations 1994.

The Tribunal considered the evidence, including the applicant's confirmation that she applied for the visa on 30 November 2020, and that she did not obtain health insurance until 18 March 2021, with a three-day gap between the expiry of her student visa and the commencement of her new health insurance. The Tribunal noted that clause 485.215 requires that the application be accompanied by evidence of adequate health insurance arrangements in Australia at the time of application. Applying the principles from *Khan v MIBP*, the Tribunal held that the phrase "accompanied by" establishes an objective temporal test, meaning an application either is or is not accompanied by the necessary evidence at the time of lodgement. While acknowledging the possibility of some elasticity in the interpretation of "accompanied by" as suggested in *Anand v MIAC*, the Tribunal found that this flexibility did not extend to importing notions of fairness to avoid a harsh outcome.

Based on the documentary and oral evidence, the Tribunal was satisfied that the applicant did not have the requisite health insurance at the time of her application. Consequently, the Tribunal affirmed the decision not to grant the applicant the visa. The Tribunal noted that the applicant could seek ministerial intervention under section 351 of the *Migration Act 1958*.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant provided evidence of maintaining health insurance in accordance with cl.485.215 at the time of application.Health insurance requirements 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. The applicant was granted a Bridging Visa A on 30 November 2020, which commenced upon the expiry of her Student Temporary Visa on 15 March 2021 that had condition 8501 regarding the need to hold health insurance. The applicant provided evidence that she completed a Master of Business Administration at the Holmes Institute from 22 July 2019 to 8 November 2020. The applicant confirmed in evidence that she made an application for a Temporary Graduate (VC-485) visa on 30 November 2020. The applicant provided evidence of health insurance with IMAN from 18 March 2021 and that she was not completely aware of her health obligations at the time she lodged her 485 visa application having continued with her student health insurance. The applicant acknowledged that three days elapsed between the expiry of her Student Visa and the acquisition of health insurance that was not Student health insurance with IMAN on 18 March 2021. The Tribunal put it to the applicant that the evidence is that she did not have health insurance complying with cl.485.215 and the applicant responded: “That is a genuine mistake”. The Tribunal informed the applicant that the Tribunal did not have discretion in this matter. Based upon the documentary evidence available prior to hearing and the oral evidence provided at hearing, the Tribunal is satisfied that the applicant did not have health insurance at the time of application. The Tribunal is satisfied that the health insurance requirement is that the applicant must have adequate arrangements in Australia for health insurance since the time the application was made. The Tribunal notes that in each of the prescribed post 23 March 2013 provisions, the criterion itself specifies that ‘when the application was made’ it ‘was accompanied by’ the specified evidence such that there is no latitude as to the relevant time.[1] In Khan the Full Court of the Federal Court held that the clause ‘accompanied by’ establishes an objective temporal test, that is, an application is either accompanied by the necessary evidence or it is not.[2] The criterion being construed in Khan was cl 485.223, cls 485.213 and 485.215(1) are structured in the same way, and the Federal Court has followed Khan when construing cl 485.213.[3] In Anand it was held that there was some elasticity to the words “accompanied by” such that evidence supplied around the time of application may be sufficient.[4] In considering Katzmann J’s view of the word “accompanied” in Anand, the Full Court of the Federal Court in Khan noted that the stretching of the concept may give rise to difficulties in determining how far a departure from the temporal requirement may be permitted, and that there would seem no need to stretch the concept.[5] In any event, the Full Court of the Federal Court held that whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant.[6] [1] Boddu v MIBP [2019] FCCA 879 at [27]; upheld on appeal Boddu v MIBP [2019] FCA 1340 at [13]. This is in contrast to the criterion considered in Anand v MIAC [2013] FCA 1050, in which case the ‘time of application’ requirement came under the cl 487.21 heading and not the criterion itself which simply required ‘[t]he application is accompanied by the specified evidence. While the heading informs the criterion, it is not determinative, as the High Court made clear in Berenguel v MIAC (2010) 264 ALR 417.[2] Khan v MIBP [2018] FCAFC 85 at [15]. See also Shrestha v MHA [2019] FCA 1843.[3] Tauqueer v MICMSMA [2019] FCA 1883 at [26] and [27].[4] Anand v MIAC [2013] FCA 1050 at [28]. [5] Khan v MIBP [2018] FCAFC 85 at [14].[6] Khan v MIBP [2018] FCAFC 85 at [15].

Decision

Reasons for decision

The Tribunal notes that under s351 of the Migration Act 1958 it is available to the applicant to make an application to the Minister for consideration in this matter.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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