Survepalli (Migration)

[2022] AATA 2071

Survepalli (Migration) [2022] AATA 2071 (17 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Grace Vanaja Survepalli

CASE NUMBER:  1918388

HOME AFFAIRS REFERENCE(S):          BCC2017/1786509

MEMBER:Meredith Jackson

DATE:17 June 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen Family Relationship (Temporary) (Class UP)(Subclass 461) visa.

Statement made on 17 June 2022 at 10:43am

CATCHWORDS
MIGRATION – New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa – Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) – substantial compliance with condition of last substantive visa held – health insurance – no cover held during visa period, but taken out for other reasons later – unaware of condition – no similar condition on current bridging visa – non-compliance conceded and credible evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 461.225, Schedule 8, condition 8501

CASE
Kim v Witton (1995) 59 FCR 258 

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 8 July 2019 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 17 May 2017. The delegate refused to grant the visa on the basis that the holder did not substantially comply with condition 8501, which was imposed on the last substantive visa she held, in that she did not provide evidence that she held comprehensive health insurance cover during the validity period of her previous visa, a Subclass 461 visa which she held between 22 May 2012 and 22 May 2017. Further, she did not provide evidence of reciprocal Medicare access during this period.

3. The applicant appeared before the Tribunal on 14 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, New Zealand citizen Mr Pradeep John Jacob.

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

   ISSUES AND LAW

5. Clause 461.225 of the Regulations requires the applicant to have complied substantially with the conditions that apply or applied to the last of any substantive visa held by the applicant, and to any subsequent bridging visa.

6. Departmental policy at the time of the visa application appears at PAM:3 Sch 8-8501. It states that unless satisfied that a reciprocal health care agreement with another country exists and will cover or, if applicable, continue to cover the visa applicant, a (decision maker) should, as a matter of policy, regard ‘adequate arrangements’ as requiring the applicant to have/maintain private health insurance, that is, medical/ hospital cover to the equivalent of Medicare cover, with a health insurance fund in Australia. It states that this should not, however, be read as requiring the applicant to show evidence of having taken out insurance for the full 5 year visa period given that 12 months is usually the longest period that a person could pre-pay insurance or any other specific period. It is for the decision maker, having regard to local circumstances, to decide what is ‘adequate’ for the case in question. However, at minimum, the applicant should be able to provide evidence of having taken out health insurance for at least the initial 12 month period of their stay. The policy states that failure to maintain health insurance may be expected to lead to refusal of any further Subclass 461 visa given that failure to maintain adequate arrangements for health insurance would, under policy, be sufficient grounds for the applicant to fail (clause) 461.225. It states that applicants seeking a further Subclass 461 visa will need to provide evidence of their having taken out and maintained adequate health care for the relevant period, as well as evidence of having taken out adequate health insurance for the first 12 months of the new visa term. The Tribunal is satisfied that the policy provides a reasonable basis for consideration in the present matter. Further, the Tribunal is mindful of the authority in Kim v Witton (1995) 59 FCR 258 at 271 which reasoned that substantial compliance should take into account the nature of the breach of the 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. However, the factors listed were not intended to be exhaustive and in general it is a matter for decision makers to assess the weight to be accorded to them, having regard to the circumstances of the case. The Tribunal has considered appropriately the circumstances of the present matter in the above context.

7. The issue in the present matter is whether the applicant substantially complied with condition 8501 of the last substantive visa she held by holding comprehensive private health insurance with a health insurance fund in Australia during the validity period.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present matter, the last substantive visa held by the applicant was a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa which she held from 22 May 2012 to 22 May 2017. Beyond that, the applicant held two consecutive Bridging visas, the second of which (a WB-020 visa) remains current. No health insurance condition attaches to the Bridging visas.

9. The delegate’s decision, provided by the applicant, records that on 14 March 2019, the Department requested that the applicant provide evidence of having substantially complied with condition 8501 while holding the Subclass 461 visa. On 10 April 2019, the decision states, the applicant provided a statutory declaration, signed on 9 April 2019, declaring that she had failed to comply with condition 8501 during the validity period of the visa; and did not comply for any period of time whilst she held it. On 8 July 2019 the visa was refused.

10. The applicant sought review in the Tribunal. On 19 May 2022 the Tribunal invited the applicant to provide information on which she intended to rely to support a claim of substantial compliance with condition 8501 while she held the Subclass 461 visa. On 19 May 2022 the applicant emailed the Tribunal and confirmed that she currently holds health insurance with BUPA; that she currently holds life insurance; and that she is in sound health and vaccinated.

11. On 29 May 2022 the applicant provided to the Tribunal in support of her case, a bundle of submissions including BUPA health insurance certification for health coverage for consecutive periods from 14 August 2018 to 22 May 2022; evidence that she maintains life insurance; evidence she has been vaccinated for COVID-19; a copy of a rates notice for her residential property; a payslip for her employment as a transport engineer with Maribyrnong City Council; a New Zealand student loan statement (with a balance -$0.01); superannuation documents; and statements from the applicant and her witness Pradeep John Jacob, the applicant’s husband, outlining the family’s circumstances. The statements include details of how the visa refusal has affected their otherwise positive family life in Australia and in particular the couple’s now 14 year old daughter, and how well it compares with the employment difficulties they experienced in New Zealand during an economic downturn. The applicant states she was so happy to be in Australia after she arrived, that she did not notice that she needed to hold health insurance as a condition of her visa. She adds that she was rarely unwell and was granted regular health checks by her employer, and the need for health insurance “never crossed” her mind. When she changed jobs and found her new employer did not offer health check-ups, she then took out a policy with BUPA in August 2018, by which time her first Subclass 461 visa had expired (on 22 May 2017). The applicant stated in the hearing that she took out the insurance solely because she was not covered for check-ups by her new employer, it was not a matter of belated compliance, she stated; she did not realise at any stage of her stay that the conditions of her visa required her to hold health insurance, only finding out when the visa was refused in July 2019.

12. The applicant said in the hearing that she is not the kind of person who overlooks things; and she has no idea why she let this happen to her. The applicant emphasised that she profoundly regrets her mistake and asked that the visa be granted on humanitarian grounds because of the severe imposition on her family if it is not.

13. Mr Jacob, a production technician in the dairy industry, is a New Zealand citizen by grant. The couple’s daughter was born in New Zealand and is a citizen. Mr Jacob gave evidence in the hearing that the omission was an honest mistake, one the family continued to rue. He stated that the parties were so distracted by settling down in Australia and paying off debt from their time in New Zealand, it was a requirement they did not notice and they are profoundly sorry about it.

14. Ms Survepalli stated that she was in great distress at the thought of having to leave Australia and her family; she has had many sleepless nights due to what she believes was an inexplicable human error. She states it was not as if she could not have afforded the insurance. She had gained and paid for a Master’s degree in New Zealand and was employable as an engineer once she got to Australia and in a good financial position. She apologised for the circumstances of her non-compliance but stressed it was entirely unintentional.

    Analysis

15. The Tribunal has carefully considered the evidence provided by the applicant in support of her case, both documentary and oral, as well as that of her witness. The applicant does not claim that she complied or substantially complied with the conditions of her last substantive visa, it is common ground that she did not. She does not claim that a specified reciprocal health care agreement with her home country was in place while she held the visa. She declares that she did not hold health insurance while she held the visa because of her own failure to understand her obligation to condition 8105, which is a basis of the visa grant.

16. The Tribunal has carefully considered whether the applicant meets the threshold for substantial compliance with condition 8501 on any other basis and concludes she does not. The applicant did not hold health insurance until she commenced a policy with BUPA on 14 August 2018, a commencement date beyond the expiry date of her Subclass 461 visa. The Tribunal accepts the applicant’s claim that she was not conscious of the health insurance requirement until the visa was refused. It follows logically that she did not deliberately flout the condition. She had no ready explanation in the hearing, however, as to why a person who considers herself meticulously diligent, would have overlooked a critical element such as a condition of her visa. She claims she was preoccupied with paying off debt and settling the family into new jobs and school for her daughter, but this is a factor in most immigrant settlements and not sufficient to outweigh her clear obligation to abide by her visa conditions. There is no evidence before the Tribunal that the department misled the applicant on this aspect.

17. The Tribunal notes that the applicant and her family have established productive and settled lives in Australia, are employed in meaningful roles and earning sufficient income to have acquired a residential property, which they share with their 14 year old daughter who attends school in Melbourne. The Tribunal found the applicant and her husband to be credible and forthright witnesses, profoundly affected by their omission and the consequences for their family, with much at stake. The Tribunal sympathises with the applicant and her family and notes that she is now the holder of health insurance and has continued to hold that and other forms of insurance. However there is no evidence before the Tribunal that the applicant had health insurance at any time in the visa validity period, and the Tribunal is not satisfied she substantially complied with her visa condition while she held the visa.

    Conclusions

18. The Tribunal finds the applicant did not comply at any time with condition 8501 of her visa as required, and consequently, cannot meet cl 461.225. There is no evidence before the Tribunal that she has not complied with the conditions of her Bridging visas.

19. For the reasons above, the Tribunal is not satisfied that the applicant substantially complied with condition 8501 of her New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa.

20. Accordingly, the Tribunal is not satisfied that the applicant complied substantially with the conditions that apply or applied to the last of any substantive visas she held and therefore does not meet cl 461.225 of the Regulations.

21. There is no evidence before the Tribunal that the applicant has not complied with the conditions of her subsequent bridging visas.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a New Zealand Citizen Family Relationship (Temporary) (Class UP)(Subclass 461) visa.

    Meredith Jackson
    Member