SEKHON (Migration)

[2018] AATA 2256

SEKHON (Migration) [2018] AATA 2256 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GURPREET SINGH SEKHON

CASE NUMBER:  1713668

DIBP REFERENCE(S):  BCC2017/1429645

MEMBER:Amanda Mendes Da Costa

DATE:16 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 16 May 2018 at 9:48am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement for evidence of adequate health insurance to accompany visa application – Meaning of “accompany” – Evidence of adequate health insurance not submitted until significantly after application – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Anand v MIAC [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 Immigration on 8 June 2017 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 April 2017. 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 at the time the visa application was made it was not accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

4. The applicant appeared before the Tribunal on 9 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented by his registered migration agent at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether when the application was made it was accompanied by evidence that the applicant had adequate arrangements in Australia for health insurance.

   Health insurance requirements

8. 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.

9. The Tribunal notes that the applicant answered ‘yes’ to the question on the application form about whether he had attached evidence that he had adequate arrangements in Australia for health insurance.  However, a perusal of the Department’s file shows that the applicant did not provide the Department with evidence that he had adequate arrangements in Australia for health insurance.

10. On 9 May 2017 the Department sent an email to the applicant, requesting that he provide evidence that he had held adequate health insurance since the day the application was made.  The Tribunal notes that the applicant did not respond to this request.

11. In his oral evidence, the applicant acknowledged that he had not provided evidence that he had adequate arrangements in Australia for health insurance, to the Department.

12. The applicant provided the Tribunal with a letter from Iman Australian Health Plans dated 10 April 2017, confirming that he has had an ongoing policy of health insurance In Australia from 20 April 2017.

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

14. 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.

15. In Anand’s case, Katzman,J observed:

    “… I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application.  Evidence supplied around the time of the application may be sufficient.  I doubt for example, if the accompanying evidence appeared in an annexure which through advertence 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 the 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 her, 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).”

16. The Tribunal is satisfied that the applicant did not provide any evidence of having adequate health insurance in Australia to the Department.  He did provide such evidence to the Tribunal during the hearing.  However, the Tribunal notes that whilst his application for review was lodged on 27 June 2017, he did not provide evidence that that he had adequate health insurance in Australia until 9 April 2018.

17. 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 is that the evidence of adequate health insurance in Australia must accompany the application “when the visa application is made”.  That, in the Tribunal’s view, supports the interpretation that the evidence must be submitted at, or at least shortly after, or around the time of the application.  The Tribunal is not satisfied that a 12 month delay (as occurred with the applicant) meets that temporal requirement.

18. Therefore the applicant does not satisfy cl.485.215.

19. 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

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

    Amanda Mendes Da Costa
    Member