MOHAMMED AYUB (Migration)

This matter concerned an appeal by Mohammed Ayub against a decision not to grant him a Skilled (Provisional) (Class VC) visa, specifically under the Subclass 485 (Temporary Graduate) visa, Post-Study Work stream. The appeal was heard by Susan Trotter, a Member of the Tribunal. The central dispute revolved around whether Mr. Ayub had provided sufficient evidence of adequate health insurance arrangements in Australia at the time of his visa application.

The primary legal issue before the Tribunal was to determine whether Mr. Ayub's visa application was accompanied by evidence of adequate health insurance, as required by the relevant legislative instrument. This involved considering whether Mr. Ayub's response of "No" to a question about holding health insurance, coupled with his subsequent submission of evidence approximately one year later, satisfied the criterion. The Tribunal also considered arguments that the Department could have requested further information under section 56 of the Migration Act 1958 (Cth) and that the delegate had erred in law by not doing so.

The Tribunal reasoned that the review before it was a merits review, focused on whether the applicant met the requirements of clause 485.215 afresh, rather than on any potential jurisdictional error by the Department. While acknowledging that section 56 of the Act permits the Minister to seek information, the Tribunal noted there is no obligation to do so. The Tribunal found no evidence that information regarding Mr. Ayub's health insurance was available in Department records at the time of the visa application. Although it was accepted that Mr. Ayub had provided evidence of health insurance for a previous student visa, this did not satisfy the requirement for the current application. The Tribunal concluded that the criterion regarding health insurance was a mandatory one, and there was no discretion to overlook its absence at the time of application.

Consequently, the Tribunal found that Mr. Ayub did not satisfy the criteria for the grant of a Subclass 485 visa. The decision under review, which affirmed the refusal to grant the visa, was therefore affirmed.