KUNWAR (Migration)

[2018] AATA 5085

KUNWAR (Migration) [2018] AATA 5085 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr BISHUM RAJ KUNWAR
Mrs BABITA PHUYAL KUNWAR

CASE NUMBER:  1806002

HOME AFFAIRS REFERENCE(S):           BCC2017/4900364

MEMBER:Karen McNamara

DATE:6 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 06 December 2018 at 12:22pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – no evidence of adequate health insurance arrangements – had health insurance policies at time of application – evidence of health insurance provided two months later – application not accompanied by evidence of health insurance – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.215

CASES

Anand v Minister for Immigration and Citizenship [2013] FCA 1050
Nguyen v Minister for Immigration & Anor [2016] FCCA 1523

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 20 February 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 December 2017. 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 (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.

3. The Tribunal received an application for review on 6 March 2018. It was accompanied by a copy of the delegate’s decision and documentation relating to the applicant including a copy of a policy with IMAN Australian Health Plan issued to the applicant on 2 March 2018 commencing 20 December 2017.

4. The delegate’s decision records on the 20 February 2018, the delegate refused the visa on the basis that the primary applicant did not meet cl.485.215 of Schedule 2 to the Regulations because he had not provided evidence to the Department that he had adequate health insurance arrangements in Australia. The delegate therefore, found that the applicant did not satisfy the requirements of clause 485.215.

5. The first named applicant, Mr Bishum Raj Kunwar (the applicant) appeared before the Tribunal on 14 November 2018 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered Migration Agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicants meet cl.485.215 which provides as follows:

   485.215

   (1) When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance; and

   (2) The applicant has had adequate arrangements in Australia for health insurance since the time the application was made.

9. The visa application on the Department’s file indicates that in response to the question “Do you and all applicants included in this application hold health insurance? ” the word “No” is recorded.

   Health insurance requirements

Assessment of the Evidence

1. The Tribunal has had regard to all the evidence before it, including the Department’s file and the Tribunal’s file. It notes that the visa application was lodged with the Department on 21 December 2017 and it was accompanied by documents relating to the applicants but did not include evidence that the applicants had adequate arrangements in Australia for health insurance and that, the applicants have had adequate arrangements in Australia, for health insurance since the time the application was made.

2. On the basis of the Department’s file, the Tribunal accepts that at the time of application the applicants stated “No” to the question “Do you and all applicants included in this application hold health insurance?

3. At the hearing on the 14^th November 2018 the applicants provided a written submission, an email dated 27 February 2018 with details of their previous Migration Agent and copies of health insurance policies issued by Medibank dated 8 August 2014, Bupa dated 18 April 2017 and IMAN Australian Health Plans dated 6 April 2018.

4. At the hearing the Tribunal informed the applicant of the requirements of cl.485.215. In particular it explained the requirements of cl.485.215(1), that when the visa application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance. The Tribunal noted that it may not be satisfied that the applicants’ visa application was accompanied by this evidence.

5. The applicant stated that he provided the necessary information to his former Migration Agent and as far as he was aware the application had been made correctly. When he received the refusal from the Department he contacted his former agent and asked him why he had said no on the application. The applicant told the Tribunal that due to the negligence of his former agent, his application was refused. The applicant also claimed that he was denied natural justice by the Department because Immigration did not contact him about his health insurance and that the Department already had his insurance information because he had provided this to them when he made his application for a student visa.

6. The applicants’ representative submitted that the Tribunal take into consideration his written submission which was provided at the hearing and wished to put on record his concern regarding the Department’s online forms that allow applicant’s to proceed to lodge applications despite the applicant not meeting mandatory requirements. The Agent also asked the Tribunal to take into consideration the intent of cl.485.215 and the fact that his clients are compliant with the law in so far as they held concurrent health insurance policies and were fully covered at the time they lodged their application.  

7. The written submission provided at hearing submits;

   “1.The delegates of the department of home affairs made a jurisdictional error by not taking into consideration relevant evidence of the applicant and/or refusing to give weight to evidence already available to the department of home affairs there by made erroneous findings and mistaken conclusion

   2.The Department of Home affairs denied a natural justice to the applicant by not giving a proper notice to the Applicant regarding Health Cover or requesting further information: Migration Act 1958 -Sect 56 ……..

   3. The Department of Home Affairs failed to take into account the intention behind the law making of the Health Insurance Cover for Migrants.”

   The agent also quoted s.55 of the Migration Act 1958.

8. In considering the applicants’ submissions, the Tribunal notes Departmental policy in this regard which states that:

   “ 10. Adequate arrangements for health insurance

   10.1 Overview

   To satisfy 485.215, at the time the application was made it needs to have been accompanied by evidence that the applicant: (Tribunal emphasis)

   Had adequate arrangements in Australia for health insurance; and has had adequate arrangements in Australia for health insurance since the time the application was made. That is, to cover the period between when the application was made and when the decision maker is assessing the application (known as the time of decision).

9. While the Tribunal acknowledges it is not bound by policy, it considers it is consistent with the relevant legislative provisions, and in the circumstances of this application, sees no reasons to depart from it. The Tribunal therefore gives little weight to the applicants’ claim that they had previously provided the Department with their health insurance details as part of a previous visa application, as the issue before it, is whether their visa application lodged on the 21 December 2017 was accompanied by the relevant evidence.

10. The delegate’s decision, records that a check of departmental systems at the time the application was assessed on 20 February 2018, shows that the applicants did not provide any additional documentation at the time of assessment to indicate that they held adequate arrangements in Australia for health insurance. This is supported by the applicant’s declaration. 

11. On the basis of the Department’s file, the Tribunal accepts that at the time of application the applicant stated “no” to the question “Do you and all applicants included in this application hold health insurance? By declaring ‘no’ to this question and declaring ‘yes’ to inter alia “The information provided in this form is complete, correct and up–to-date’ the Tribunal is of the view that there was no indication before the Department that required the Department to follow up with the applicant and request details of health insurance, particularly given the applicant had stated no to holding health insurance.

12. The Tribunal also notes in the Department’s Acknowledgement of Application Received Fact Sheet under the section Providing Documents - the fact sheet clearly states “ we may make a decision on your application without requesting additional information.  You should provide us with all the information you feel is relevant. As you lodged your application online, you should log in to your ImmiAccount to see the documents required for your application.” The statements contained within the Department’s forms indicate that the onus of responsibility lies with the applicant to provide adequate evidence. The Tribunal therefore, gives little weight to the applicants’ claim that the Department did not afford natural justice to the applicants by not requesting further documents. 

13. The Tribunal has considered the information provided to the Tribunal and accepts that the applicants hold a policy with IMAN Australian Health Plan which commenced on 20 December 2017. The Tribunal acknowledges the submission of the applicants that their former Migration Agent erred in not providing evidence of their health insurance policy when lodging their visa application. However, the Tribunal must also be satisfied that their application, when made, was accompanied by evidence that they had adequate health insurance arrangements, as required by cl.485.215(1).

14. 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.  The Tribunal has considered whether the applicant has met this requirement by providing this evidence on the 22 June 2018, approximately two months i.e. 63 days after the visa application was made. In doing so it has considered relevant case law regarding the phrase ‘accompanied by evidence’.

15. The Tribunal notes the applicants lodged their application with the Department on 21 December 2018. On the 20 February 2018 an authorised delegated decision maker under s 65 of the Migration Act 1958 made a decision on the basis of the information before them at that time. Departmental records indicate the applicants’ former Migration Agent contacted the Department via email on 22 February 2018 (approximately two months i.e. 63 days) after lodging the application) advising that the applicant held an OSHC policy and providing a copy of such. The Department responded by advising the agent that the decision could not be revisited.

16. The Tribunal has had regard to the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050, in which Katzmann J considered an identically worded clause (cl.487.216) and held that:

    It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria.  That is why relevant evidence is to accompany the application.  Consistent with that purpose the evidence should be submitted with or at the same time as the application.  Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question… For the above reasons, I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged.  Evidence supplied around the time of the application may be sufficient. I doubt, for example, if accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that.  Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within a week, and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged…

17. The Tribunal notes that Anand’s case dealt with an arguably more flexible formulation of the requirement, as the ‘time of application’ requirement in that case came under the cl.487.21 heading and was not contained in the cl.487.216 criterion itself.  While the heading informs the criterion, it is not determinative.  However, the criterion that applies in this case itself specifies that ‘when the application was made’ it ‘was accompanied by’ the specified evidence.  The Tribunal is of the view the use of the word ‘was’ locates the requirement clearly in the past.  While the Tribunal takes any information provided into account at the time of its decision there are some provisions which must be met before that time.  The Tribunal is of the view the requirement of cl.485.215 is one of those provisions.

18. The Tribunal has also had regard to another more recent case, Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, in which Burchardt J held that the words ‘accompanied by’ in the context of a subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time the application is lodged and when the evidence which must accompany that application must be provided. In that case, Burchardt J held that a 29 day gap was too great to meet the temporal requirement. The Tribunal further notes that in that case, Burchardt J was considering cl.485.223, not cl.485.215. However, cl.485.223 also provides that at the time the visa application was made, it was accompanied by evidence …, which is essentially the same wording as that used in cl.485.215.

19. In the applicant’s case, the evidence of health insurance was provided to the Department approximately two months i.e. 63 days after the visa application was made.

20. Having considered the case law discussed above, the Tribunal is not persuaded that in this case, there is a temporal connection between the visa application and the provision of the relevant evidence, given that a period of approximately 63 days elapsed.

21. For the reasons set out above, the Tribunal is not satisfied that when the visa application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.  The Tribunal finds that applicant does not satisfy cl.485.215(1) and therefore does not satisfy cl.485.215.

22. Based on the Tribunal’s findings 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

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

Karen McNamara
Member