Khatiwada (Migration)

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*.