Klaase (Migration)

[2018] AATA 3768

Klaase (Migration) [2018] AATA 3768 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Gaynor Nicarle Klaase
Master Dylan Christopher Klaase
Master Zach Benjamin Klaase

CASE NUMBER:  1710438

HOME AFFAIRS REFERENCE(S):           BCC2016/4133338

MEMBER:Gabrielle Cullen

DATE:6 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that for a Subclass 500 (Student) v:

·The first named applicants meets cl.500.215 of Schedule 2 to the Regulations; and

·the second and third named applicants meet cl.500.314 of Schedule 2 to the Regulations.

Statement made on 06 August 2018 at 2:39pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – evidence of health insurance – current certificate of enrolment – valid overseas health insurance cover – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 500.215, 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 28 April 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 7 December 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she had not provided evidence of health insurance in Australia.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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 first named applicant has evidence of adequate arrangements in Australia for health insurance as provided for by cl.500.215, 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.

6. Cl.500.314 provides for a similar requirement for members of the family unit.

7. Information provided by the applicant by way of a current COE and her education provider indicates she is enrolled in a Bachelor of Education which will finish on 31 October 2018. PRISMS records confirm she is studying this course and it will finish on 31 October 2018. Information provided by the applicant from Allianz indicates that all the applicants have overseas student health insurance cover to 31 December 2018, commencing 1 February 2018.

8. The Tribunal therefore finds that the requirement of cl.500.215 is met by the first named applicant and that the second and third named applicants meet the requirement of cl.500.314.

9. Given the above findings, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

   DECISION

10. The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that for a Subclass 500 (Student) visa:

    ·the first named applicant meets cl.500. 215 of Schedule 2 to the Regulations; and

    ·the second and third named applicants meet cl.500.314 of Schedule 2 to the Regulations.

    Gabrielle Cullen
    Member