Singh (Migration)

[2017] AATA 2069

Singh (Migration) [2017] AATA 2069 (28 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harpal Singh
Mrs Runa

CASE NUMBER:  1715462

DIBP REFERENCE(S):  BCC2017/1252337

MEMBER:Mark Bishop

DATE:28 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Student (Temporary) (Class TU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.215 of Schedule 2 to the Regulations.

The Tribunal has no jurisdiction with respect to the secondary applicant.

Statement made on 28 September 2017 at 8:23am.

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Evidence of Overseas Student Health Cover

LEGISLATION
Migration Act 1958, ss 65, 338, 347

Migration Regulations 1994, Schedule 2, cl 500.211, cl 500.215, cl 500.218

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 6 July 2017 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 3 April 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (the applicant) applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant failed to provide evidence as requested of Overseas Student Health Cover (OSHC) to the end of course date of 3 November 2019.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is the applicant failed to provide evidence of OSHC to the Decision Maker (DM) at the time of making the decision in this matter.

   Other criteria

6. The Tribunal has before it the Department’s file relating to this applicant and the Tribunal case file.

7. A valid application for a Student visa was made by the applicant. On 3 April 2017 the applicant lodged a TU 500 Vocational Education Student visa application. The applicant failed to provide evidence of OSHC until the end of course date of 3 November 2019.

8. On 24 May 2017 a request was made for OSHC to be provided with validity until 15 March 2020. Due date to provide this document was 22 June 2017.

9. The document was not provided when the Decision Maker (DM) made the relevant decision on 6 July 2017.

10. Subsequently a file note was entered into the Tribunal file on 31/08/2017 at 3.54 PM advising the applicant had called the Tribunal to confirm receipt of an email which included his health insurance details. The Tribunal file note confirms receipt as detailed above.

11. Examination of the Tribunal file reveals a “Policy Certificate” issued by Medibank outlining detail of Medibank Essentials OSHC to Mr Harpal Singh for himself and his dependant Mrs Runa commencing on 28/08/2017 and valid until 15/03/2020. The scale coverage in the certificate is characterised as “Couple”. Appropriate passport details for the applicant and his wife are also contained in the Tribunal file.

12. This certificate satisfies the requirements of cl.500.215 of Schedule 2 the Migration Regulations 1994.

13. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.215 of Schedule 2 to the Migration Regulations.

14. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

15. With respect to the second applicant the Tribunal notes she went offshore on 22 May 2016 and remains offshore at the time of this decision. The tribunal notes ss.338(2) and 347(3) of the Migration Act, which provides that the applicant must be onshore when she lodged the visa application and when the application for review is made. As such the tribunal has no jurisdiction.

    DECISION

16. The Tribunal remits the applications for Student (Temporary) (Class TU) visa for reconsideration with the direction the first named applicant meets the following criteria.

    ·cl.500.215 of Schedule 2 to the Regulations:

    ·The Tribunal has no jurisdiction with respect to the secondary applicant.

    Mark Bishop

    Member