ROZANA (Migration) - [2024] ARTA 62

DECISION AND
REASONS FOR DECISION
ROZANA (Migration) ARTA 62 (3 December 2024)
Applicant:Mrs Rita Rozana
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2109988

Tribunal:Tegen Downes
Place:Brisbane
Date: 3 December 2024
Decision:The Tribunal affirms the decision not to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa

General Member T Downes
Statement made on 3 December 2024 at 8:15AM

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – substantial compliance with conditions of last substantive visa held – health insurance – obtained cover for first year, then not again during visa period – new cover obtained after department’s request for further information – no response to hearing invitation or reminders, or appearance at hearing – decision made rather than application dismissed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 461.225, Schedule 2, condition 8501
Administrative Review Tribunal Act 2024 (Cth), ss 9, 99, 106(5)(c), (d), 379A(5)(b), (d)
CASES
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
Kim v Witton (1995) 59 FCR 258
Shrestha v MIMA [2001] FCA 1578

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2021 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 13 May 2019. The delegate refused to grant the visa because the applicant did not satisfy cl 461.225 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which requires that the applicant has complied substantially with the visa conditions of her previous substantive visa.
The application was listed for hearing on 28 November 2024. The applicant did not appear at the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
The issue in the present case is whether the applicant satisfies cl 461.225 of Schedule 2 to the Regulations, which requires that at the time of decision:
If the applicant is in Australia at the time of application, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
The phrase ‘complied substantially’ is not defined in the Act or the Regulations. The leading case on the judicial interpretation of this phrase is Kim v Witton (1995) 59 FCR 258, in which Sackville J relevantly said:
43. The Tribunal in the present case accepted that an applicant might "comply substantially" with a condition imposing a prohibition, even if the condition has been breached. I think that the Tribunal was correct to do so. As the Tribunal observed in Re Wakefield, unreported, 6 March 1992, at 4, the regulations contemplate that "some degree of non-compliance with visa conditions" may be permitted. Whether the applicant has "complied substantially" with a condition prohibiting work is a question of fact, to be determined having regard to the particular circumstances of the case.
44. The Tribunal in the present case summarised and accepted the principles formulated by the Immigration Review Tribunal in Re Sekido, unreported, 6 March 1992. In Re Sekido, the Senior Member considered that it was appropriate, in determining the question of substantial compliance, to take into account the "proportionality" of the breach and the bona fides (or lack of bona fides) of the applicant. Re Sekido itself was a case of breach of a condition relating to employment, in which the Tribunal characterised the principal as having "knowingly and consistently disregarded" that condition of the entry permit.
45. Neither counsel disagreed with the statement of principle in Re Sekido, and I think it is broadly correct. In my opinion, in determining whether an applicant has complied substantially with a condition imposing a prohibition, the Tribunal should consider the relevant circumstances of the case. Without being exhaustive, these include
·the nature of the breach of condition;
·the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;
·whether or not the applicant deliberately flouted the condition; and
·if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.
46. In general, it is a matter for the Tribunal to assess the weight to be accorded to these factors, having regard to the circumstances of the case…
47. The mere fact that an applicant did not appreciate that his or her conduct breached a condition does not necessarily establish that he or she had complied substantially with that condition.
However, the matters referred to in Kim v Witton should not be applied rigidly. As Gray J stated in Shrestha v Minister for Immigration & Multicultural Affairs [2001] FCA 1578 at [17],
They were merely matters that, as a matter of logic, would have been relevant in the circumstances of the case with which his Honour was dealing. No doubt in many cases, those considerations, or similar ones, will be relevant, as a matter of logic, to a determination whether there has been substantial compliance with a condition in a visa. This does not mean that, in every case, there is an obligation on the decision-maker to take into account every one of those factors.
The department’s policy ‘PAM3: Sch8 – Visa conditions – About visa conditions’ relevantly provides:
8 What does “substantial compliance” mean
The requirement is that the compliance must have been ‘substantial’. As ‘substantial’ is not defined in the Regulations, it has its ordinary (dictionary) meaning.
Generally, the term ‘has complied substantially’ implies that there be some compliance with a condition and the criterion would not be considered satisfied if there has been no compliance by the applicant with an imposed condition.
The criterion is unlikely to be satisfied if there has been partial compliance only - for example, if a visitor complied with the “no work” condition for 1 month, but worked for the remaining 5 months of their visa stay period.
Note: There are some conditions (or parts of conditions) for which there is no scope for operation of the distinction between strict compliance and substantial compliance. Therefore, when interpreting compliance with some conditions, the concept of ‘substantial’ compliance has no logical application; the applicant either has complied or has not.

9 Has the person complied substantially
9.1 Relevant considerations
In assessing whether a person has ‘complied substantially’ with a visa conditions, officers must consider:
·whether the applicant complied with conditions such as work restrictions, study conditions or any other conditions, imposed on their last held substantive visa
and
·if the applicant has since been granted an intervening bridging visa, whether the applicant has complied with the conditions of the intervening bridging visa as well as with the conditions of their last held substantive visa.
9.2 All circumstances must be considered
In assessing whether the criterion is satisfied or not, officers are to take account of all circumstances of the applicant and consider each case on its own merits.
9.3 Why did the applicant not comply
In some cases, the reasons why the applicant has not complied with a visa condition/s might be relevant in determining whether their compliance was ‘substantial’.
An applicant may be considered to have ‘complied substantially’, for example, if they would have complied with the condition but for some circumstances beyond their control which lead to their non-compliance. (For examples (if any), first see the PAM3: Sch8 instruction for the visa condition in question.)
9.4 Assessing compliance with each condition
Assessments are to be made individually against each condition attached to the visa and the applicant’s compliance with each condition assessed individually.
For example, if a visa applicant holds a visa that has 5 conditions attached to it, the requirement of substantial compliance is not satisfied merely as a result of the applicant adhering to 3 of those conditions while failing to comply at all with the remaining 2 conditions.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a 47-year-old woman from Indonesia. She applied for the visa that is the subject of this review application based on her relationship with her husband, Ian, a 61-year-old New Zealand citizen.
At the time the applicant applied for the visa that is the subject of this review application, she was in Australia and held a Subclass 461 visa, which commenced on 6 August 2014 and expired on 6 August 2019.
According to material on the department file, the department sent the applicant a letter dated 22 February 2021 requesting further information about the visa application. Among other things, the letter stated:
HEALTH INSURANCE COMPLIANCE for 8501 conditions
2. Health Insurance – 8501 Visa Condition Compliance
Your previous NZ Citizen Family Relationship (461) visa has the condition 8501:
8501
The holder must maintain adequate arrangements for health insurance while the holder is in Australia.
Please provide evidence of having substantially complied with the conditions of your previous UP461 visa by providing evidence of having held comprehensive health insurance cover during the 5 years validity period of your previous visa OR evidence of reciprocal Medicare access during this period.
E.g: a certified copies of letters or statements from your health insurance provider over the past 5 years, certified copy of your reciprocal Medicare card, a letter or receipts from Medicare indicating you have been over the past 5 years and continue to be entitled to reciprocal Medicare access.
In order to satisfy 8501, the visa holders must maintain adequate arrangements in accordance with Attachment A health insurance, which is itemised on the department’s website.
In summary, Attachment A health insurance benefits should be at least equivalent to:
✃ public hospital treatment in an Australian State/Territory
✃ surgically implanted prostheses
✃ pharmacy – Pharmaceutical Benefits Scheme (PBS) listed drugs
✃ medical services and
✃ ambulance services, including inter-hospital transfers.
If you have not held health insurance for the past 5 years, the validity period of your previous UP461 visa, please provide a statutory declaration explaining why you have not complied with the conditions of your previous visa. Include any evidence to support any claims as to why you did not comply with the conditions of your visa.
NOTE: Non-compliance with your visa condition may result in you not satisfying the prescribed requirements for the grant of a 461 visa.
Note: Holders of a NZ Citizen Family Relationship (UP461) visa are not entitled to access Medicare unless they are from a country which has a reciprocal health agreement with Australia.More information can be found on the Medicare Australia website: >
The applicant responded to the department’s request for information and provided:
a.A statutory declaration dated 24 March 2021 which stated:
After a few months I arrived in Australia in 2014 I purchased a heath insurance to cover medical cost and all other realated [sic] heath [sic] issues for the first year in Australia.
Since I have never used or claimed the health cover I had purchased, I discontinunued [sic] it and joined BT’s Term Life insurance (cover lump sum if permanent injury or diagnosed with a terminal illness), still I never used or claimed. I tried to live a normal life and not rely much on heath [sic] insurance. Generally I am fit and have maintained a great health history. I don’t really have any serious health issues in my life, so I felt very confident that I didn’t need to live with heath [sic] insurance covers. However, I recently started to get back into purchasing health insurances for extra precautionary measures, therefore had just purchased a Bupa Heath Insurance which covers essential visitor and renews on monthly basis.
b.
BT Protection Plan Renewal Summary dated 8 January 2017 indicting that the applicant and her husband had taken out ‘Term Life’ cover effective

8 January 2016, with death and total and permanent disability benefits.
c.
Letter from BUPA dated 4 March 2021 confirming that the applicant had taken out Overseas Visitors Health Cover – Essential Visitors Cover effective

4 March 2021.
According to the decision notice, the delegate had regard to this evidence but ultimately decided to refuse the visa application. Relevantly, the decision notice states:
Firstly, I note that you provided no evidence of your initial health insurance cover, as such, I am unable to ascertain if that health insurance cover is sufficient deem that you substantially complied with the 8501 condition on your previous substantive visa. I therefore cannot give that claim much weight.
Further, from the evidence you provided, it does not appear that the life insurance policy you signed up for from BT Protection Plans can be considered adequate health insurance cover for the purposes of complying with condition 8501.
Finally, I find that the health insurance cover you now hold, which you obtained from 4 March 2021, is not relevant to whether or not you complied with condition 8501 during the validity period of your previous visa (from 6 August 2014 to 6 August 2019).
Based on the information before me, I am not satisfied that you complied substantially with the 8501 condition on your last substantive visa. I am therefore not satisfied that you meet clause 461.225 of the Migration Regulations.
The applicant made the present review application on 5 August 2021.
On 9 August 2021, the Tribunal sent the applicant a letter (with an attachment) acknowledging her review application. Among other things:
a.the letter stated:
We note that you have not provided Notification Letter and Decision Record issued by the Department of Home Affairs’ with your review application. To assist us further with review application process, please send these documents at [email protected] by 16 August 2021 and quote case number 2109988 for reference.
…
If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.
b.the attachment to the letter titled ‘Information for migration review applicants – MR Division’ stated:
Can I provide further information or evidence?
If you have not already provided a copy of the department's decision, or any other material which you believe supports your application, including a statement explaining why you disagree with the department's decision, please do so as soon as possible.
The applicant did not respond to the Tribunal’s letter. At the time of this decision, the applicant has not submitted any evidence to the Tribunal that is directly relevant to the issue to be determined.
The applicant has only engaged with the Tribunal once since making the application. On
7 November 2021, the applicant made a request for fee reduction. I note that this request was sent from the same email address with which the Tribunal has corresponded. On
22 November 2021, the Tribunal refused the request.
On 31 October 2024, the Tribunal sent a notice of hearing to the applicant. Among other things, the letter stated:
What you should do on receipt of this letter
Please read and complete the enclosed ‘Response to hearing notice’ form and return it to the ART within 7 days of receipt of this letter. Please use the ‘Response to hearing notice’ form attached to this letter or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written submissions sent to us should be in English or translated by a qualified translator.
If you are not able to appear as scheduled, for instance, if you are not available on this day or you believe you will experience difficulty participating in the hearing as arranged, you need to advise us as soon as possible. Please note that we will only make changes to this hearing if satisfied that it is reasonable and there are good reasons for doing so.
The Presiding Member will consider any submissions and you will be advised of the outcome of that consideration before the hearing. You must assume that the hearing will go ahead as scheduled unless we have advised you otherwise.
Things to do before the hearing
Please provide all documents you intend to rely on to support your case by
21 November 2024 if you have not already done so. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.
…
What will happen if you don’t appear
If you do not appear at the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.
The applicant did not respond to the hearing notice, did not return the ‘response to hearing notice’ form within the nominated time frame and did not provide any documentation within the nominated time frame.
On 27 November 2024, the day before the scheduled hearing, the applicant was sent an SMS hearing reminder to the mobile number nominated on the application form. The SMS stated:
REMINDER: Your ART hearing is on 28/11/24 at 9:30 am. Please check the Notice of Hearing to confirm details. If you have not replied to the Notice of Hearing, please do so immediately. Any questions, call 1800 228 333. DO NOT REPLY to this message.
On 27 November 2024, the Tribunal also attempted to telephone the applicant on the mobile number nominated on the application form. The applicant did not answer the phone call and there is no record of the applicant having returned the phone call.
The applicant failed to appear at the hearing on 28 November 2024.
At 9:18am, the Tribunal attempted to telephone the applicant on the mobile number nominated in the application form. A male-sounding voice answered the phone. The Tribunal said words to the effect of “is this Mrs Rozana”. The receiver said words to the effect of “no this is Ian, wrong number” and ended the call.
At 9:30am, the Tribunal attempted to telephone the applicant again on the mobile number nominated in the application form, with the assistance of an interpreter. A female-sounding voice appeared to answer the phone and say “hello” but after the interpreter started to speak, an automated message played saying words to the effect of “you have reached a message bank, please leave a message”.
The interpreter left a voice message stating words to the effect of “this is the Administrative Review Tribunal calling in relation to your review application about the refusal of your 461 visa” and stating words to the effect that the Tribunal could conduct the hearing via telephone. There is no record of the applicant having contacted the Tribunal in response to this voice message.
Decision without a hearing
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides:
Tribunal may make decision without hearing in certain circumstances
(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies. …
(5) This subsection applies if:
(a) a party to the proceeding fails to appear at a Tribunal case event that relates to the proceeding; and
(b) the party is not a non - participating party to the proceeding or Tribunal case event; and
(c) the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event; and
(d) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
Note 1: Tribunal case events include hearings, directions hearings and dispute resolution processes (see the definition of Tribunal case event in section 4).

The Administrative Review Tribunal Bill 2023 Revised Explanatory Memorandum provides:
707.In all of the above circumstances, the Tribunal must consider that the issues can be adequately determined in the parties’ absence. This means that the Tribunal cannot exercise these powers if there are issues that they consider they cannot resolve without seeking further evidence or submissions from the parties. The Tribunal should also exercise appropriate discretion in exercising this power and consider whether it is appropriate, particularly if there has only been one instance of non-compliance or failure to appear. …
710. This clause supports the objective of the Tribunal resolving matters as quickly and with as little formality and expense as a proper consideration of the matters permits, especially given the time and resources required to conduct a substantive hearing. It also provides additional powers to the Tribunal to manage non-compliance with an order or failure to appear of parties other than the applicant and promotes parties’ participation in the proceeding. This enables the Tribunal to control proceedings and prevents non-applicant parties from being able to frustrate the Tribunal process.
Section 106(5) is potentially enlivened because the applicant failed to proceed at a Tribunal case event, namely the Tribunal hearing, and the applicant is not a non-participating party.
The Tribunal also has the power under s 99 of the Act to dismiss the application in circumstances where the applicant fails to appear at a Tribunal case event and the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event. According to the Revised Explanatory Memorandum, this power should be ‘exercised sparingly’.
I have carefully reviewed the case file maintained by the Tribunal and I am satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal hearing, for the purpose of s106(5)(c). The hearing invitation clearly set out the arrangements for the hearing and was sent well in advance of the hearing. It was sent to the last email address provided to the Tribunal by the applicant in connection with the review. This was an acceptable method for the Tribunal to give the hearing invitation to the applicant, pursuant to s379A(5)(b) and (d) of the Act. The email did not ‘bounce back’, meaning it was delivered.
I am also satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the applicant, for the purposes of s106(5)(d).
The phrase ‘adequately determined’ is not defined in the legislation. The Macquarie Dictionary defines ‘adequate’ as follows: adjective
1. (sometimes followed by to or for) equal to the requirement or occasion; fully sufficient, suitable, or fit. 2. Law reasonably sufficient for starting legal action: adequate grounds.
The phrase ‘adequately determined’ has been relevantly considered under the now defunct s 34J of the Administrative Appeals Tribunal Act 1975 (Cth). Relevantly, the court stated in EIZ20 v Child Support Registrar [2023] FedCFamC2G 637:
65. The First Respondent’s Solicitor accepted that the AAT Act provides powers to the Tribunal to seek comment and inquire, but denied that there is an obligation or a duty to do so. The First Respondent’s Solicitor characterised the powers as permissive not mandatory and cited Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 at [172] which found that “the Tribunal has no obligation to initiate enquiries or to make out an applicant’s case for him or her”. The First Respondent’s Solicitor also cited Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 and accepted that in rare or exceptional cases a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can result in an error of law. The First Respondent’s Solicitor submitted that this was not a rare or exceptional case, as no issue came “out of the blue” and there was no issue which was not raised by either party or the decision-maker under review.
66. I accept the First Respondent’s submissions. The Tribunal is empowered to obtain information from parties. The Tribunal is not necessarily obliged to seek comments or information from parties when it is minded to decide a matter adversely to a party. The Tribunal’s obligation to have enough information before it to adequately review a decision does not require it to “conduct an inquiry to discover whether [the Mother] might have been able to put [her] case better or support it with other evidence”: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41, at [49]. The Tribunal proceeded on the basis that the parties had provided information and evidence on everything they wanted to provide in support of their case. The Tribunal does not have to enquire on the mere possibility that either party might have something further to say.
I do not consider that the phrase ‘adequately determined’ in s 106 requires that the matter be able to be determined in the applicant’s favour. There are other provisions of the ART Act that provide for that situation. What is required is that the Tribunal consider the documents and things given to the Tribunal and then decide if that information provides a reasonably sufficient basis for the Tribunal to reach a decision on the issue/s to be determined.
In this matter, for the reasons that follow, I consider that there is a sufficient basis to decide that the applicant did not ‘comply substantially’ with visa condition 8501 during the period of her 461 visa. This finding is available based on the applicant’s own evidence, upon which the department decision was based.
I consider that it is reasonable and appropriate to proceed to a decision without a hearing in circumstances where the applicant has been given multiple opportunities to present her case. She had, and exercised, the opportunity to provide relevant evidence to the department. She has had, and not exercised, at least two opportunities to put evidence before the Tribunal, in writing and at a hearing.
The applicant did not request an extension of time to provide information, or requested an adjournment of the hearing, to facilitate her participation in the Tribunal process. The applicant has not provided any explanation for her failure to provide evidence in the time frame requested, her failure to attend the hearing or her failure to answer the Tribunal’s attempts to contact her in writing and by phone.
There would appear to be nothing to be gained by offering the applicant further opportunities to provide information, in writing or at a hearing, given the applicant’s refusal to engage in the Tribunal process. The Tribunal has attempted to communicate with the applicant by telephone, by text message and by email, and those attempts have been ignored.
I consider that it is appropriate to proceed to a decision, instead of dismissing the application, in these circumstances and in circumstances where the matter can be, in my view, adequately determined on the material before me.
I also consider that this approach is consistent with the objects of the Tribunal, set out in s 9 of the ART Act, which among other things, require the Tribunal to pursue the objective of providing an independent mechanism for review that is fair and just and ensures that applications are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters permits.
Did the applicant ‘comply substantially’ with the visa condition 8501
The applicant’s subclass 461 visa was valid between 6 August 2014 to 6 August 2019. On the applicant’s own evidence submitted to the department:
a.She obtained private health insurance ‘a few months’ after she arrived in Australia ‘for the first year in Australia’. This suggests that the applicant may have had health insurance for a period of one year, from late 2014 to late 2015.
b.Because she didn’t use it, she discontinued her cover and obtained life insurance. I note that the evidence is that her life insurance commenced in January 2016.
c.She obtained private health insurance again in 2021, which she claims she did ‘for extra precautionary measures’. However, I note that her policy commenced a mere 10 days after the department sent her a letter requesting evidence of her having current comprehensive health insurance cover (in addition to cover during her previous visa). In these circumstances, it is reasonable to assume that the impetus for the applicant obtaining private health insurance again was the department’s letter.
The applicant has not provided evidence of her initial private health insurance, as noted in the delegate’s decision. However, if the applicant’s claims are accepted at face value, it appears that the applicant held private health insurance for one fifth of the term of her previous visa. I have accepted this at face value for the purposes of this decision.
The applicant’s life and TBD insurance was not adequate health cover, for the purposes of condition 8501 as it is not equivalent to that set out in the department’s policy, which provides:
In order to satisfy condition 8501, visa holders must maintain adequate arrangements for health insurance, which should be at least equivalent to:
·out-of-hospital medical services – the benefit about listed in the MBS
·in-hospital medical services – the benefit amount listed in the MBS
·public hospital treatment in an Australian State or Territory – admitted patient at a rate determined by the State or Territory health authorities for services charged to a patient who is not considered an Australian resident
·surgically implanted prostheses
·pharmacy – the benefit amount listed in the Pharmaceutical Benefits Scheme (PBS) where applicable and up to the threshold amount set by an Australian registered private health insurer, and
·ambulance services, including inter-hospital transfers as per the relevant arrangements in place with an approved ambulance service when deemed medically necessary for admission to hospital and/or in the case of an emergency.
There is no evidence before the Tribunal as to whether the applicant knew that her decision to discontinue her private health cover resulted in her breaching visa condition 8501. It is reasonable to assume that the applicant was aware that she was required to hold private health insurance, which is why she initially took out cover in or about late 2014. It may be that when the applicant discontinued cover in or about late 2015, she did not turn her mind to the fact that such would result in her breaching her visa condition and that she failed to appreciate that she was in breach of the condition. Alternatively, she may have deliberately flouted the condition. For the purposes of this decision, I have decided that the applicant did not deliberately flout the visa condition.
I note that there is evidence before the Tribunal that the applicant and her husband have poor English language skills. I accept that this may have contributed to any misunderstanding held by the applicant as to the visa condition.
I note that the applicant has claimed to the Tribunal to have limited income, with the applicant having been made redundant in December 2019. I note that the applicant was not notified of her redundancy until approximately three months after her previous 461 visa expired. Accordingly, that is not evidence that the applicant was financially unable to maintain private health insurance during the period of her visa. However, I accept that private health insurance can be expensive and that the cost of private health insurance may have contributed to her decision to discontinue her claim.
On the applicant’s own evidence, she discontinued her cover because she did not use it and did not think she needed it. While this is noted, I also note that one does not generally hold insurance cover because they ‘need’ to use it. The purpose of insurance is to safeguard oneself from financial hardship in the event of, for example, an unexpected medical emergency. I made the following observation another unreported decision (unreported, Administrative Review Tribunal, Downes GM, 27 November 2024), which is also pertinent to this decision:
The requirement to maintain health insurance cover is an important part of Australia’s immigration policy. It helps ensure that visa holders can access appropriate healthcare in Australia, without incurring significant out-of-pocket expenses or utilising government funding. While there is no evidence before the Tribunal that the applicant’s breach had any real consequences, that does not mean that it should be overlooked.
Having considered all the circumstances, I am not satisfied that the applicant complied substantially with visa condition 8501, which applied to her last substantive visa. Accordingly, I find that the requirement of cl 461.225 of Schedule 2 to the Regulations is not met.
For these reasons, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa.
Date(s) of hearing:
Representative for the Applicant: