MOHAMMED AYUB (Migration)

[2019] AATA 449

MOHAMMED AYUB (Migration) [2019] AATA 449 (6 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Ayub

CASE NUMBER:  1809730

HOME AFFAIRS REFERENCE(S):           BCC2018/484328

MEMBER:Susan Trotter

DATE:6 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 06 March 2019 at 4:48pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – no evidence of health insurance – evidence provided one year later – no discretion in relation to this criterion – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 56, 57, 58, 65

Migration Regulations 1994, Schedule 2 cl 485.215(1)

CASES
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 84 ALJR 251
Nguyen v Minister for Immigration & Anor [2016] FCCA 1523
Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32

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 19 March 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 is a 29-year-old citizen of India. He first arrived in Australia in June 2013 as the holder of a student visa and has undertaken various studies in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 29 January 2018.

3. 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.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.215(1) as required because the visa application when made was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 8 April 2018.

6. The applicant appeared before the Tribunal on 13 February 2019 to give evidence and present arguments.

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

8. The Tribunal allowed further time after the hearing until 15 February 2019 to enable the applicant to provide further submissions. The applicant’s representative was not able to provide the further submissions by that time due to a sickness in the family and provided the further submissions on 17 February 2019. The further written submissions provided on 17 February 2019 have been taken into account by the Tribunal.

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

   ISSUES

10. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Post-Study Work stream, which criteria include cl.485.215 of Schedule 2 to the Regulations.

    Health insurance requirements

11. 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.

12. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  When the visa application was made, was it accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance? And, if so,

    (b)  Had the applicant had adequate arrangements in Australia for health insurance since the time the application was made?

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant told the Tribunal at hearing that his understanding of the rules when he was going through the application process was that he thought he should have non-student health cover. He was told that he could apply for his Subclass 485 with student health cover up until the expiry date of the student health cover and then he could change it. That is why, when he was uploading all his documents like his completion letter and his IELTS, he is pretty sure that he provided everything including his student health cover.

14. When he went to the help section beside the question about health insurance in the application form, it said that it should be Subclass 485 health cover. When he applied for the visa, he only had about 12 days before he was going back to India so he did not have enough time to go back and check it but he checked it after he got the refusal. When he checked it again when he was in India, he checked all the visa documents he had uploaded and he realised that he had not uploaded the health insurance documents. He was so shocked he could not even think of what to do so he went to the airline office and said that he needed to get a booking to get back as soon as possible so that he could speak with a migration agent. He then came back and spoke with a couple of migration agents and then lodged his application with the Tribunal.

15. Issue 1 – When the visa application was made, was it accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance?

16. In the visa application dated 29 January 2018, in response to the question “Do you and all applicants included in this application hold health insurance?”, the applicant responded “No”.

17. The following words appear in the visa application form after this question and answer, ‘You must attach evidence of adequate health insurance after the lodgement of this application on the ‘Attach documents to a lodged application’ page.

18. It was submitted on behalf of the applicant that:

    (a)  At the time of the visa application, the applicant had student health cover valid until 15 March 2018. It was further submitted that the applicant had been advised by his insurance providers that he did not need to take out non-student health insurance until his student visa expired which is why he answered ‘no’ on the visa application form to the above question, misunderstanding the question as asking whether he had non-student health insurance and he therefore made a mistake because he did hold non-student health insurance at the time.

    (b)  Information about him holding student health cover until 15 March 2018 was available in the Department records and the delegate could have requested the applicant to submit the health insurance evidence under s.56 of the Act.

    (c)  The delegate erred in law in not requesting this information.

19. As discussed with the applicant and his representative at hearing, the review process conducted by the Tribunal is a merits review process, and whether the Department has made a jurisdictional legal error, is not in issue before the Tribunal because the Tribunal is assessing afresh whether the applicant meets the requirements of cl.485.215. The Tribunal observes, however, that s.56 of the Act provides that the Minister may get any information considered relevant however there is no obligation for the Minister to do so.

20. The Tribunal considered the evidence before it and specifically whether the visa application was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

21. It is submitted that the information about the applicant’s health insurance was available in Department records. The Tribunal has no evidence before it that at the time of the visa application that information was available on Department records. However, the Tribunal accepts that one of the requirements for grant of a Subclass 500 visa to the applicant on 23 January 2017 was that the applicant had given evidence of adequate arrangements in Australia for health insurance during the period of the intended stay in Australia (cl.500.215). It follows that it is likely that information provided to the Department at the time of the applicant’s student visa application included evidence showing that the applicant had health insurance arrangements up until 15 March 2018, therefore covering the date of the Subclass 485 visa application.

22. It is further submitted that the words in cl.485.215 are ‘it needs to have been accompanied by evidence that the primary applicant…’ and that the word ‘must’ is not mentioned. The actual wording of cl.485.215(1) is as follows:

    When the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

23. There is no ambiguity in the wording of this criterion. The visa application was either accompanied by the specified evidence or not. The word ‘must’ is not the only word that can be used to specify a mandatory requirement. A clear reading of the requirement is that the requirement is mandatory.

24. It is further submitted that if the delegate had sent an invitation to comment, under s.56 and s.58 of the Act, on the ‘no’ response to the question, that would have solved the problem. Again, although not an issue before the Tribunal, there was no obligation on the part of the Department to make such a request and it is entirely understandable that such a request would not have been made in circumstances where the applicant’s answer was ‘no’, such that there was not any suggestion that there was further information to be obtained. Further, although not relevant to determination of the issues before the Tribunal, the Tribunal observes that s.57 of the Act relates to information that was not given by the applicant for the purposes of the application. That section (and s.58) therefore has no application to the information given by the applicant, the ‘no’ response to the question in the visa application.

25. The Tribunal accepts that the applicant had likely, for the purposes of a previous student visa application, provided the Department with evidence of him having health insurance until 15 March 2018. The Tribunal now has evidence before it that the applicant continued to have that insurance at the time of the visa application on 29 January 2018. However, although the Department had likely previously been provided with evidence of the applicant holding health insurance until 15 March 2018, it does not follow that at the time of the visa application that health insurance was still current (i.e. had not been cancelled at the time of the visa application or otherwise). The requirement of cl.485.215(1) is very specific and there is no discretion allowed. The visa application was required to be accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance at that time. There is no discretion that can be exercised.

26. As already noted, the Tribunal also took into account further written submissions received after hearing on 17 February 2019. Those submissions include that:

    (a)  The question regarding health insurance in the application form, “You must attach evidence of adequate health insurance after the lodgement of this application on the ‘Attach documents to a lodged application’ page.” does not direct that the applicant must submit the health insurance evidence – it says the applicant must attach evidence after the lodgement of the application but it does not say with the application. Further, it is submitted that there is no clear information about student health cover at this question in the case of an applicant relying upon student health cover. Therefore it does not require that the health insurance (evidence) must be attached with the application, and, in the case of a student relying on student health cover, it confuses the applicant. Reliance is placed on the case of Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 84 ALJR 251 (Berenguel) (at paragraphs 24, 25 and 26) where it is said in the submissions that (unedited):

    ·     the evident purpose of the alternative criteria in cl.885.213 is to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minster at the time of submitting the application. In this connection it is useful to note the contrast between the requirements of cl.885.213 and cll 885.214 and 885.215.

    ·     The requirement in reg.1.15B that the requisite test has been conducted “more than 2 years before the day on which the application was lodged” is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading “Criteria to be satisfied at the time of application”.

    ·     Although cl.885.213 is part of the group of clauses headed “Criteria to be satisfied at time of application”, the hearing does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it must be regarded as “part of the regulations”. It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application.

    (b)  Until a decision is made whether to grant or refuse to grant a visa, an applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. According to Justice Griffith in Waensila v Minister for Immigration and Border Protection [2016] FCAFC 32 (Waensila), all information submitted to the Tribunal is to be regarded ‘de nova’ when assessing the applicant’s visa application or considering the matter ‘afresh’ as to whether the applicant satisfied the mandatory requirement of cl.485.215 at the time ‘when the application was made’.

27. As regards the submissions relying on Berenguel, as noted by the High Court by way of contrast, cll.885.214 and 885.215 required the application to be accompanied by evidence of an Australian Federal Police check and arrangements for a medical examination, where there was no such requirement in respect of proof of compliance with the vocational English or competent English requirement at cl.885.213. Likewise, in relation to the requirements of cl.485.215 now before the Tribunal (as it read at the time of the applicant’s visa application in relation to health insurance), there is an expressed requirement for evidence to accompany the visa application and Berenguel is therefore not relevant as it concerns consideration of a criteria, cl.885.213, where there is no expressed requirement of evidence accompanying the visa application. Further, the specific wording of cl.485.215 encompasses a time of application requirement by the use of the words ‘When the application was made’ and there is, in any event, no subheading in cl.485 akin to ‘Criteria to be satisfied at time of application’ as there was in relation to cl.885.213 the subject of consideration in Berenguel.

28. As regards the submissions relying on Waensila, that matter is one which considered a different visa class and criterion, cl.820.211(d)(ii), which criterion was contained under a subheading ‘Criteria to be satisfied at the time of application’. That criterion on its own specific wording did not encompass a temporal connection to the time of application and the court in Waensila essentially found that the location of the clause under the stated subheading could not limit consideration of the criteria to the time of application. The issues in Waensila are therefore to be distinguished from a consideration of cl.485.215(1) which does contain specific wording tying the requirement to the time of application.

29. For completeness the Tribunal also considered whether the applicant having now provided evidence to the Tribunal of having had adequate arrangements in Australia from the time of the visa application, can be considered to be evidence that accompanied the visa application. The visa application was made on 29 January 2018. The required evidence was provided to the Tribunal on 5 February 2019.

30. The Tribunal is not satisfied that this evidence provided on 5 February 2019, over a year after the visa application was made, and after the delegate’s decision, can be considered as having ‘accompanied’ the application as required. In this regard, the Tribunal had regard to the case of 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 that 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.

31. Having had regard to all of the evidence before it, the Tribunal finds that the visa application was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance from the time of the visa application. The Tribunal acknowledges that the applicant is distressed by a situation in which he considers a technicality has disadvantaged him in circumstances where he did have the relevant health insurance but failed to upload the evidence of that with his application. However, there is no discretion that may be exercised in relation to this criterion.

32. It follows that cl.485.215(1) is not met as required.

    Issue 2 – Had the applicant had adequate arrangements in Australia for health insurance since the time the application was made?

33. The Tribunal is satisfied on the evidence that the applicant did have adequate arrangements in Australia for health insurance from the time of the visa application. However, as the Tribunal has found that cl.485.215(1) is not met as required, it is not necessary to consider this issue.

    Conclusion

34. Both cl.485.215(1) and cl.485.215(2) are required to be satisfied for cl.485.215 to be met overall. As cl.485.215(1) is not met, cl.485.215 is not met overall as required.

35. 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

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

    Susan Trotter
    Member