Mendis (Migration)

[2018] AATA 1612

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Balapuwaduge Sasika Malinda Mendis

CASE NUMBER:  1805329

DIBP REFERENCE(S):  BCC2018/489629

MEMBER:Sheridan Lee

DATE:17 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 17 April 2018 at 4:09pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant held health insurance at time of visa application – Health insurance held at time of visa application – Evidence of health insurance not provided at time of visa application - Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.215

CASES
Anand v Minister for Immigration and Citizenship [2013] FCA 1050

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

2. The applicant applied for the visa on 30 January 2018. 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, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.215 of Schedule 2 to the Regulations because the applicant did not supply any evidence that he had adequate arrangements in Australia for health insurance.

4. The applicant appeared before the Tribunal on 13 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the post-study work stream, which includes cl.485.215 of Schedule 2 of the Regulations. This clause requires that at the time 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.

8. The applicant completed a Bachelor of Engineering (Honours) at Victoria University in November 2017. Following completion of that study, on 30 January 2018, an application was made for a Subclass 485 visa. The Tribunal has before it a copy of the application form, on which the applicant declared ‘No’ to the following question:

   Do you and all applicants included in this application hold health insurance?

9. No further evidence in respect of health insurance was supplied to the Department of Home Affairs (the Department). On this basis, on 20 February 2018 the delegate found that the applicant did not satisfy cl.485.215.

10. The applicant has subsequently supplied the Tribunal with a certificate of insurance, issued on 18 August 2017 by Allianz Global Assistance. The certificate states that the applicant held ‘Overseas Student Health Cover’ with Allianz, covering the period 4 September 2017 until 3 April 2018.

11. The Tribunal accepts the certificate as evidence that the applicant held adequate health insurance at the time the visa application was made on 30 January 2018, and that it covered the period between when the visa application was made and when a decision was made by the delegate on the visa.

12. Nevertheless, at the hearing the applicant confirmed that this certificate was not provided to the Department when the application for the 485 visa was made. He went on to explain that this omission was an oversight on his behalf. The applicant gave evidence that he became aware of the oversight when he received the notification that the visa had been refused from the Department.

13. The Tribunal has had regard to the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050, in which Katzmann J considered the words ‘accompanied by’ in the context of 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…

14. The applicant has acknowledged that despite holding the requisite health insurance, he did not supply any evidence of that insurance to the Department as he did not realise he had made the critical omission until he received the delegate’s decision. The evidence was subsequently provided to the Tribunal when the applicant applied for merits review. The plain wording of cl.485.215 specifies that the applicant’s visa application must, when it was made, have been accompanied by evidence that the applicant has adequate arrangements in Australia for health insurance.

15. The Tribunal acknowledges that the applicant failed to appreciate what was required to apply for the Subclass 485 visa. The Tribunal further accepts that the applicant is dismayed that such a seemingly technical oversight could derail his subclass 485 visa application, particularly since he held adequate health insurance for the relevant period. However, the Tribunal must find that as the visa application was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance, the applicant does not satisfy cl.485.215. The applicable law does not give the Tribunal any power to waive or overlook the need to meet this requirement.

16. 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

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

    Sheridan Lee
    Member