LI (Migration)

[2017] AATA 1346

LI (Migration) [2017] AATA 1346 (4 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jiaqi LI
Mr Kaiqiang Zhang

CASE NUMBER:  1707955

DIBP REFERENCE(S):  BCC2017/303229

MEMBER:Denise Connolly

DATE:4 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 August 2017 at 4:00pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Evidence that applicant has adequate arrangements in Australia for health insurance – Evidence of health insurance provided over 10 weeks after visa application was made – Health insurance not paid for until after visa application submitted

LEGISLATION
Migration Act 1958, ss 55, 56, 65

Migration Regulations 1994, Schedule 2, cl 485.215, cl 485.223, cl 487.21, cl 487.216

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 Immigration on 30 March 2017 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 9 January 2017. Visa Class VC contains Subclass 485. 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 who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl.485.215 of Schedule 2 to the Regulations because the application was not accompanied by evidence that she held adequate arrangements for health insurance.

4. The applicants appeared before the Tribunal on 2 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Health insurance requirements

1. 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.

2. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It states that the applicant answered yes to the question on the visa application asking if she and the other visa applicant held health insurance. Later, on 28 February 2017, the Department requested that the applicant provide evidence that she held adequate health insurance from the time of lodgement. The delegate indicated that at the time of her decision the timeframe for providing the information had expired and no further documentation had been provided. She refused to grant the visas on the basis that the applicant did not meet cl.485.215.

3. The applicant’s representative submitted, prior to the hearing, written material to the Tribunal that there is evidence that the information had been provided to the Department, by email on 24 March 2017. He has provided a copy of an email which he claims he sent to the Department on 24 March 2017, which included an attached copy of a letter from Bupa dated 25 January 2017 stating the applicants had Essential Visitors Cover commencing 9 January 2017, the date of the visa application.

4. At the hearing the Tribunal informed the applicant of the requirements of cl.485.215. In particular it explained the requirement that 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 visa application was accompanied by this evidence. The Tribunal noted the visa application cover letter from the migration agent, on the Department’s file, setting out the attachments to the visa application, does not include any evidence regarding health insurance. The Tribunal also noted that the letter from Bupa was not provided to the Department until, at the earliest, 24 March 2017, over 10 weeks after the visa application was made. It discussed with the applicant case law relevant to the phrase ‘accompanied by evidence’.

5. The applicant stated that the migration agent had submitted the evidence. She also stated that the requirements were met because, at the date of application, the applicants had health insurance as indicated by the Bupa letter. The Tribunal noted the Bupa letter is dated 25 January 2017. It asked why she did not provide that letter to the Department immediately. She stated that she provided it in response to the Department’s request for health insurance information. The applicant said the Bupa letter had been sent to her migration agent. The migration agent then showed the Tribunal the letter from Bupa stating the cover commenced 9 January 2017, the date of the visa application. 

6. The Tribunal noted that in Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, a matter dealing with similarly worded provisions, Burchardt J held that a 29 day gap was too great to meet the requirement that the visa application was accompanied by evidence. The Tribunal noted that in this case the evidence was provided over 10 weeks after the visa application. The Tribunal explained that while the applicant has now provided evidence that she had health insurance, the concern is that she did not provide the evidence to the Department for over 10 weeks. The applicant argued that there was no specific date given to her to provide the evidence, and secondly, that she met all of the other requirements. She stated that the migration agent provided the evidence exactly on the day she was given to provide the evidence. The applicant claims it is the Department’s system failure that resulted in it not receiving her evidence.

7. The applicant’s migration agent submitted that the health insurance certificate was not given at the time of application because it could only be lodged by paper. The applicant needed to lodge her visa application because her student visa was about to expire. The migration agent stated that the delay in providing the evidence was because the request for information from the Department sought other information and he provided all of those documents together at one time.  The applicant was given 28 days to provide those documents and he has provided evidence that the documents were provided on the day they were due.

8. The migration agent also submitted that the Tribunal must take into consideration the evidence that the applicant has now provided the required evidence and so she meets the provision at time of decision. He also requested that the Tribunal take into account the applicant’s circumstances as she is currently studying for her professional year in a NAATI course. He asked that the Tribunal remit the matter so that she can finish her NAATI course otherwise she will lose the opportunity to apply for a skilled migration visa. The applicant indicated she will finish her course in 22 weeks, towards the end of 2017. She will finish her professional year in about February 2018.

9. The Tribunal explained that it must take apply the regulations and relevant case law. The migration agent asked the Tribunal if he could have time to make further submissions. The Tribunal agreed to postpone its decision until after Monday 5 June 2017.

10. After the hearing the applicant’s migration agent provided receipts from Bupa indicating that on 25 January 2017 the applicant paid Bupa for health insurance for the period 9 January 2017 to 8 February 2017. He also provided other receipts showing the health insurance was paid up to date. 

11. The migration agent also provided written submissions arguing that Nguyen can be distinguished because it concerns a skills assessment where the receipt for the skills assessment was dated 18 April 2013, after the visa application date of 10 April 2013.  He also notes in that case the reference number provided in the visa application was incorrect and that it was an online application. He argues that the term ‘accompanied by evidence’ can never be satisfied when a paper application is lodged unless the insurance is arranged well in advance.

12. The migration agent also refers to a recent case of the AAT where the Tribunal (differently constituted) affirmed the Department’s decision but accepted evidence that the applicants in that case had health insurance but not since the date of the visa application. He submits, in accordance with ss.55 and 56 of the Act that the applicant may give the Tribunal additional relevant information and it must have regard to this information in making its decision.

13. The migration agent notes that the official estimated processing time for Subclass 485 visas is 84 days. If the term ‘accompanied by’ is strictly applied it is meaningless for the processing officer to request further information about health insurance and other time of application provisions. In this case the Department sought the information and allowed 28 days for the applicant to provide the evidence. This means the delegate was allowing until 27 March 2017 for the applicant to provide the evidence. He is of the view the phrase ‘accompanied by’ is sufficiently elastic to allow for material to be submitted before the due date provided by the Department.

14. The migration agent also submits that there are compassionate reasons to make a favourable decision as the applicant will not finish her NAATI professional year until January 2018.  If an unfavourable decision is made the applicant will be forced to leave Australia and her study will be in vain. She will suffer financial and emotional hardship. He provided evidence of the applicant’s study in Australia until January 2018.

Assessment of the evidence

1. The Tribunal has had regard to all of the written and oral evidence.  It has also had regard to the Department’s file and some electronic records. It notes that the visa application was lodged on 10 January 2017 and was accompanied by various documents regarding the applicants’ identities and their relationship. The applicant did not lodge documents relating to health insurance. On the basis of material on the Department’s file the Tribunal accepts that on 28 February 2017 the delegate sought further evidence from the applicants including information relating to health insurance. The delegate gave the applicants 28 days to provide further information. The delegate’s decision record states that no information in relation to health insurance arrangement was received.

2. The applicant has submitted that the migration agent did respond to the delegate’s request for further information and on 24 March 2017 emailed evidence relating to the health insurance arrangements and other matters.  A copy of an email dated 24 March 2017 from the migration agent to the Department has been provided to the Tribunal. The email includes a file ‘Health Insurance.pdf’. On the basis of the applicant’s written and oral evidence, including this record of an email, the Tribunal accepts the applicant’s migration agent sent evidence to the Department on 24 March 2017 regarding the applicant’s health insurance arrangements.

3. Clause 485.215 however 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 the evidence on 24 March 2017, over 10 weeks after the visa application was made. In doing so it has considered case law regarding the phrase ‘accompanied by evidence’.

4. 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…

5. 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. It is for this reason that it does not agree with the migration agent’s submission that the phrase is sufficient elastic to allow for the evidence to be provided any time up until the decision is made. While of course 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.

6. 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.

7. The migration agent has indicated that this case can be distinguished from Nguyen because it concerns a skills assessment where the receipt for the skills assessment was dated 18 April 2013 after the visa application date of 10 April 2013. The Tribunal notes however that, while Bupa records that the applicants had health insurance from the date of the visa application, the receipt from Bupa indicates that the health insurance was first paid for on 25 January 2017, that is, after the visa application. In any case the Tribunal is of the view Nguyen is relevant because the Court was considering the phrase ‘accompanied by’ the specified evidence.

8. In this case, the evidence of health insurance was provided over 10 weeks or approximately 73 days after the visa application was made. The Tribunal accepts that when the migration agent provided the evidence, the applicant was responding to what appears to be a routine request made by the Department, which suggests that the Department does not apply a strict approach to the requirement contained in cl.485.215(1). The Tribunal accepts that the applicant’s migration agent provided this information within the period allowed by the delegate. However, 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 over 10 weeks elapsed.

9. 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. Therefore the applicant does not satisfy cl.485.215(1) and cl.485.215.

10. The Tribunal has also taken into account the submissions that the applicant will suffer financial and emotional hardship if an unfavourable decision is made because she will not be able to complete her NAATI course and professional year. The Tribunal has some sympathy for the applicant but is not satisfied it can make a favourable decision for this reason. It is satisfied the applicants’ migration agent will be able to assist the applicants to explore options which will allow the applicant to remain in Australia to complete those studies, and if she has no other visa options, it may be appropriate to ask the Minister to intervene.

11. 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

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

Denise Connolly
Member