Peters (Migration)

[2018] AATA 5784

Peters (Migration) [2018] AATA 5784 (26 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Edwin Gerardus Wilhelmus Peters

CASE NUMBER:  1818676

HOME AFFAIRS REFERENCE(S):           BCC2018/3828733

MEMBER:Karen McNamara

DATE:26 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.215 of Schedule 2 to the Regulations.

Statement made on 26 November 2018 at 1:12pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – health insurance – evidence of arrangements not included in visa application – mistake on applicant’s part – meaning of ‘accompanied by’ – temporal connection – advised the Department two days after application was lodged – adequate health insurance at time of application – decision under review remitted

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
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 21 June 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 19 June 2018. 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 delegate refused to grant the visa because the applicant did not satisfy cl.485.215 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had adequate arrangements in Australia for health insurance at the time the application was made and since the application was made.

4. The applicant appeared before the Tribunal via telephone on 14 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sonja Stuedli, the applicant’s de facto spouse.  

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets 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.

7. 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 on 19 June 2018 and the delegate refused the visa on 21 June 2018.

2. 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?

3. On the 26 June 2018, the applicant provided to the Tribunal copies of a Policy Certificate dated 24 June 2018 from Allianz Global Assistance for OSHC cover with a start date 27 May 2017 valid to 26 July 2018, and confirmation of Health Cover from iman Australian Health Plans, with a start date of 25 July 2018. The applicant also provided copies of email correspondence between himself and the Department.

4. At the hearing on the 14 November 2018, the applicant told the Tribunal that at the time he lodged his applicant he accidently ticked no and then attempted to find a field on the online form to attach copies of his health insurance documentation. He told the Tribunal that he could not find a field on the form to enable this and as a result he did not upload the documentation.  This evidence was supported by the witness Ms Sonja Stuedli.

5. Evidence on the Department’s file and also supplied to the Tribunal by the applicant, support that the applicant contacted the Department and attempted to provide evidence of his health insurance cover on 21 June 2018.

6. In an email from the applicant to the Department dated 21 June 2018, the applicant states “Since I am still covered by the OSHC health cover. I understood (probably falsely in this case) that I could get the health cover the day the visa was granted, or my student visa ran out. Therefore I ticked no to the box regarding my health insurance. Would I be able to update this information on the current application?

7. On the 22 June 2018, the Department advised the applicant by email that if he held health insurance at the time of application, he should have declared yes.  The Department further advised that the Department cannot revisit a decision based on new information and he should contact the AAT.

8. The applicant subsequently lodged an application for review with the Tribunal 26 June 2018, in which he provided copies of his OSHC policy with Allianz for the period 27 May 2017 to  26 July 2018.  On 15 July 2018 he submitted to the Tribunal a copy of his policy with iman Australian Health Plans, with a start date of 25 July 2018.

9. The Tribunal has considered the evidence before it and accepts that the applicant’s student health insurance with Allianz was valid until 26 July 2018 and that the applicant holds an OVHC policy with iman Australian Health Plans, with a start date of 25 July 2018. However, the Tribunal must also be satisfied that his application, when made, was accompanied by evidence that he had adequate health insurance arrangements, as required by cl.485.215(1).

10. Clause 485.215(1) 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 Tribunal this evidence on the 26 June 2018, seven days after the visa application was made.

11. The meaning of ‘accompanied ‘ has been considered in the recent cases of Anand v Minister for Immigration and Citizenship [2013] FCA 1050 and Nguyen v Minister for Immigration & Anor [2016] FCCA 1523.

12. In both of these cases the Courts were prepared to accept that evidence accompanying an application could be supplied after the application is lodged but held that there must still be a temporal connection with the application and that evidence supplied around the time of application may be sufficient.

13. In Anand’s case, Katzmann J observed:

    “…..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 and two days after the decision was made. Language cannot be stretched so far that it snaps (cf Wielgus v Removal Review Authority [1993] 1 NZLR 73 at 79).”

14. 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.

15. In Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, 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.

16. In the Tribunal’s view, the above authorities suggest that whilst it is possible to submit documents after the application was made, there must be a temporal connection between the application and the documentation that accompanies it. The Tribunal notes that the requirement in cl.485.215 (1) is that, the evidence of having adequate arrangements in Australia for health insurance, must accompany the application when the visa application is made. Therefore the Tribunal is of the view that the evidence must be submitted at, or at least shortly after, or around the time of the application.

17. The Tribunal acknowledges that the applicant advised the Department two days following the application being lodged to advise that he held insurance. Documentation provided to the Tribunal on 26 June 2018 supports the applicant held adequate health insurance at the time of lodging his application.

18. The Tribunal is of the view that in this case, there is a temporal connection between the visa application and the provision of the relevant evidence, given that the applicant notified the Department two days after lodging the application and subsequently provided the evidence to the Tribunal seven days after making his application.

19. By reason of the above, the Tribunal is satisfied that when the application was made, it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance and that the applicant has had adequate arrangements in Australia for health insurance since the time the application was made.

20. Therefore the applicant satisfies cl.485.215.

21. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

22. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.215 of Schedule 2 to the Regulations.

    Karen McNamara
    Member