Qin (Migration) - [2021] AATA 2187

Qin (Migration) [2021] AATA 2187 (15 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Xinyue Qin
CASE NUMBER:  1903241
HOME AFFAIRS REFERENCE(S):          BCC2018/5746360
MEMBER:Simone Burford
DATE:15 June 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 15 June 2021 at 1:40pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –no evidence of health insurance provided with visa application – claim that cover held at the time but no evidence provided – evidence of cover held subsequently – no discretion to waive requirement in any case – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.215(1), (2)
CASES
Ahmed v Minister for Immigration [2020] FCCA 622
Boddu v MIBP [2019] FCCA 879; Boddu v MIBP [2019] FCA 1340
Khan v MIBP [2018] FCAFC 85
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 February 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a 25-year-old citizen of The People’s Republic of China. She applied for the visa on 20 December 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 (Cth) (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.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.215 of Schedule 2 to the Regulations because when the application was made it was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.
The applicant appeared before the Tribunal on 10 June 2021 by telephone to give evidence and present arguments. The applicant was not represented in relation to the application.
The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 2187
Decision Date: 15 June 2021

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), made by the applicant, Qin. The dispute arose because the applicant failed to provide evidence of adequate health insurance arrangements in Australia at the time of lodging her visa application. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had met the health insurance requirements for the visa.

The Tribunal was tasked with considering two key issues: first, whether the visa application was accompanied by evidence of adequate health insurance arrangements in Australia when it was made; and second, if such arrangements were in place, whether they had been maintained since that time. The applicant had declared on her visa application that she did not hold health insurance, answering "No" to the relevant question, although she later claimed this was a mistake and that she had Overseas Student Health Cover at the time. However, no evidence of this cover was provided with the initial application.

The Tribunal found that the applicant had answered "No" to the health insurance question on her application. The instructions accompanying the application stated that evidence of adequate health insurance must be provided, and that to meet the visa requirements, adequate health insurance must be held. The applicant subsequently provided a letter from Medibank confirming a policy commencing on 12 February 2019, which was after the application was lodged. As the applicant did not provide evidence of adequate health insurance at the time of application, and the Tribunal found no discretion to waive this requirement, the applicant did not satisfy the criteria for the grant of the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, Subclass 485.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

This requires the Tribunal to consider:· whether when the visa application was made, it was accompanied by evidence of adequate health insurance arrangements in Australia; and · if so, whether adequate arrangements have been maintained since that time.CONSIDERATION OF CLAIMS AND EVIDENCE The visa application was lodged with the Department of Home Affairs (the Department) on 20 December 2018. As discussed with the applicant at the hearing, the Tribunal had before it a copy of the Department’s file relating to the visa application and a copy of the Tribunal’s file relating to the application for review. The applicant lodged a number of documents with the Department in support of the application for the visa. The applicant confirmed at the hearing, these documents did not include any evidence relating to the applicant’s health insurance arrangements in Australia. In support of the application for review, the applicant submitted the following documents to the Tribunal:· A letter from Medibank dated 12 February 2019 confirming a Working Visa Basic Insurance policy commencing on 12 February 2019; · A notarial certificate (dated 16 May 2016) containing the applicant’s birth details (with translation); · A National Police Certificate dated 24 December 2018; · Documents relating to the applicant’s Bachelor of Commerce award from University of Queensland issued on 8 December 2018; · A copy of an IELTS English test result for a test undertaken on 23 January 2016; and · A copy of the applicant’s passport. At the hearing the Tribunal discussed with the applicant the issues arising on the review. The Tribunal explained to the applicant the requirements of cl 485.215. The Tribunal explained to the applicant that the primary criteria for the visa, including cl 485.215 must be met by at least one applicant. As noted in the delegate’s decision, the applicant declared in her application that in response to the question on the visa application ‘Do you and all applicants included in this application hold health insurance?’, the applicant answered ‘No’. The applicant confirmed at the hearing that she answered ‘No’ to this question but said that this was a mistake. She said that she had Overseas Student Health Cover with Medibank in place at the time the application was made. On the basis of the evidence before it, the Tribunal finds that at the time of application the applicant answered ‘No’ to the question ‘Do you and all applicants included in this application hold health insurance?’ on the application for the visa. The Tribunal notes that according to the record of the application on the Department’s file, the question regarding health insurance was accompanied by the following statement:You must attach evidence of adequate health insurance after the lodgement of this application on the 'Attach documents to a lodged application' page.Note: To meet the requirements for this visa you must have adequate health insurance. On 20 December 2018, the Department emailed the applicant acknowledging receipt of the application. That correspondence noted:We may make a decision on your application without requesting additional information. You should provide us with all the information you feel is relevant.As you lodged your application online, you should log in to your ImmiAccount to see the documents required for your application.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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