Syla (Migration)

[2022] AATA 2558

Syla (Migration) [2022] AATA 2558 (15 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adem Syla

REPRESENTATIVE:  Mrs Hazel Patis (MARN: 1569373)

CASE NUMBER:  1929440

HOME AFFAIRS REFERENCE(S):          BCC2018/2224603

MEMBER:Meredith Jackson

DATE:15 July 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa:

·cl. 461.225 of Schedule 2 to the Regulations.

Statement made on 15 July 2022 at 12:34 pm

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 – adequate arrangements for health insurance – initially covered by sponsor’s family policy, but no cover held after that – limited English and reliance on sponsor – sponsor’s intermittent cover – applicant’s cover taken out on day after last substantive visa ceased – genuine relationship now ceased – ongoing relationship with children – best interests of children – decision under review remitted

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 October 2019 to refuse to grant the visa applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa (UC461) under s 65 of the Migration Act 1958 (Cth) (the Act). The visa applicant applied for the visa on 22 May 2018. The delegate refused to grant the visa on the basis that the holder did not substantially comply with condition 8501 of the last substantive visa he held, in that he did not maintain adequate arrangements for health insurance while he held the UC461 visa between 21 May 2013 and 21 May 2018.

2. The applicant appeared before the Tribunal on 15 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former partner Ms Yvette Aotea Sharp, a New Zealand citizen born in 1979 who is resident in Australia.

3. The applicant was represented in relation to the review by Ms Hazel Patis.

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

   BACKGROUND

5. The applicant is Mr Adem Syla, a citizen of Kosovo. He was born in 1975 and first arrived in Australia on 7 June 2013. A restaurant manager at the Gold Coast, Mr Syla met and married New Zealand citizen Ms Yvette Aotea Sharp in Italy in 2012. Ms Sharp, an executive assistant in the building design industry, was born in 1979. There are two children of the marriage, the first born in 2013 and the second in 2014. The parties established a household in Australia, however ceased to cohabit in November 2015. Ms Sharp appeared as a witness in the hearing and the parties have provided evidence that the applicant regularly supports the children financially and is a diligent father. Mr Syla claims that due to his limited English and knowledge of Australian immigration processes he relied on Ms Sharp and did not understand personally that he needed to hold private health insurance as a condition of his visa, until told about it by his migration agent when seeking to apply for a second Subclass 461 visa.

   ISSUES AND LAW

6. The issue in the present matter is whether the applicant substantially complied with condition 8501 of the last substantive visa he held, by making adequate arrangements for health insurance in Australia during the validity period of the visa.

7. Condition 8501 of Schedule 8 of the Regulations requires that the holder maintain adequate arrangements for health insurance while in Australia.

8. 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.

9. Departmental policy concerning ‘substantial compliance’ 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 in the case of a Subclass 461 visa, 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.

10. The Tribunal is satisfied that the PAM:3 policy provides a reasonable basis for consideration in the present matter however the Tribunal is also 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. It is noted that 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 he held from 21 May 2013 to 21 May 2018. Beyond that, the applicant held three consecutive Bridging visas, the final of which (a WC-030 visa) remains current.

12. On 16 May 2022, the Tribunal wrote to the applicant requesting a copy of the delegate’s decision, which was provided to the Tribunal on 17 May 2022.

13. On 17 May 2022 the Tribunal again wrote to the applicant and invited him to provide information on which he intended to rely to support a claim of having substantially complied with condition 8501 while he held the Subclass 461 visa.

14. On 30 May 2022 the applicant provided a bundle of submissions, which included Medibank health insurance certification for health coverage for himself from 17 August 2019 to 22 May 2022. The submissions included the applicant’s marriage certificate to Yvette Aotea Sharp, and birth certificates for the two children. The Tribunal notes the departmental file contains evidence of the applicant having held Medibank Private health insurance from 8 May 2018.

15. On review, Mr Syla provided a statutory declaration stating that after he moved to Australia on 7 June 2013, he had very limited English and was unaware of the need to take out health insurance because he entrusted his immigration issues entirely to Ms Sharp. He states he became aware of the requirement for health insurance only when the Department required health insurance documents for his second Subclass 461 visa. With his visa due to expire on 21 May 2018, he took out a policy with Medibank Private immediately, he states. He acknowledges that from April 2020 he was required to stand down from his hospitality job with no pay for two to three months due to the global pandemic, and as a result was unable to fund health insurance for that period. Once he was reinstated to the role, he reactivated coverage and the policy at the time of review, he states, remains on direct debit fortnightly. Mr Syla states he wishes to remain in Australia as he has no family left in his home country of Kosovo, and while he is separated from his wife and children, they have an amicable arrangement and he wants to support his two children.

16. In support of his case, the applicant provided after the hearing, child support payment evidence from 1 July 2021 to 17 June 2022. He also provided support letters regarding his character from his sponsor, Ms Sharp; his friend Nathan Browne; hospitality industry editor Clare E Urwin; his friend Dr Dinesh Silva; friend and business associate Tim Davies; and Nicole Potzschmann, a friend and former colleague from a prominent Broadbeach restaurant. Each statement is signed and dated and refers in generous terms to the applicant’s character, qualities and nature and in some cases, to an advanced ability as a restaurant manager.

17. In the hearing, the applicant stated that were he refused the visa, his departure from Australia would have a devastating effect on Ms Sharp and the children. He stated that he is a conservative, committed parent and a good member of the community and wants to remain near the only family he has. Mr Syla said when he first arrived in Australia, he did not understand the requirement to take out insurance but once prompted to do so after talking to his migration agent in connection with his visa application in 2018, he acted to do so immediately. He stated health insurance was something he had not thought about, because he left these things to his English-speaking wife. He said initially, he was not settled with work, as in hospitality work, one does not always know what is happening next. He spent time in sales and then got a job as a restaurant manager, where he has been for four years, and which helps him pay child support and health insurance premiums.

18. Ms Sharp put forward in the hearing that for a period after they arrived in Australia in June 2013 with a four month old baby, Mr Syla was covered by her family policy. She estimated that from her memory, she held private health insurance from the time before she travelled to Italy and met the applicant; and that she had coverage from Medibank Private while away. When the parties came back as a family, she stated that she recalled reactivating health cover but she let it lapse. After she became pregnant with their second child, who was born on 30 April 2014, she looked into reinstating it. The Tribunal granted the applicant further time to provide evidence of having held health insurance for a time after the parties arrived in Australia.

19. On 27 June 2022, the applicant wrote to the Tribunal stating that it was not a simple matter to trace her Medibank Private membership as far back as 2013, as Medibank had informed her that a different system would have to be referenced and this would take up to 15 days. She provided in the interim, screenshots which appeared to be, but were not branded as such, from Medibank, bearing Ms Sharp’s name, date of birth and membership details. The details fit broadly with the patchy description provided in the hearing and the Tribunal accepts they are Medibank screen shots provided to the applicant because the information is very similar to the estimate of cover. They indicate that Ms Sharp was a member from 31 August 2005, resumed membership on 1 January 2014, renewed the membership on 13 January 2015 and again on 12 May 2015. The level of cover in the later period was for Top Extras 55. No further documents were provided.

20. On 13 May 2022 the applicant provided a statement from the sponsor describing the close nature of the applicant’s relationship with his children, and the effort he has made to secure himself financially and provide for the parties’ children.

    Analysis

21. Any breach of the condition in the present matter would be because the applicant did not substantially comply with condition 8501 by not making adequate arrangements for health insurance after he arrived in Australia.

22. The applicant has not been able to provide clear evidence he held a health insurance policy prior to 2018, however as referred to earlier in these reasons, there is some evidence provided that a policy was in place which provided him with family cover in the first year or more of his stay. As noted earlier, screenshots from a Medibank Private computer provided after the hearing, indicate that Ms Sharp was a Medibank member from 31 August 2005, resumed membership on 1 January 2014, renewed the membership on 13 January 2015 and again on 12 May 2015. The Tribunal notes the applicant and his young family arrived onshore on 7 June 2013. The level of cover in the latter period was for Top Extras 55. While the applicant has not provided entirely clear evidence, therefore, that he held health insurance prior to commencing a policy with Medibank from 8 May 2018, a date just prior to the expiry date of his UC461 visa, the Tribunal is satisfied that the evidence provided from the insurer, in screenshots taken during a discussion about the difficulty of tracing the details of membership, tend to indicate that during the first year or two of the marriage between the parties, family health insurance was in place for a substantial period. On balance, the Tribunal is satisfied an attempt was made to provide arrangements for health insurance for the applicant within a family policy.

23. If there were gaps in coverage, and it appears likely there were some, in the present matter this does not appear to be of especially profound significance. In terms referred to in Kim v Witton, there are no adverse circumstances arising which conflict with the purposes for which the visa or entry permit was granted; the Tribunal is satisfied that the applicant did not deliberately flout the condition, rather, he did not know about it; and if the applicant failed to appreciate that he was in breach of the condition, his lack of English and tendency to outsource management of visa issues to his English-fluent wife contributed to any failure. It is noted that the applicant has held health insurance since May 2018, which he argues is the first he knew about it and understands that he must maintain it going forward as he has done except for a brief period of COVID unemployment. The Tribunal considers that on balance, lapses in health insurance between the applicant’s arrival onshore the end of the first year or two of his stay, has had no meaningful impact on the conduct of the applicant or on the broad community.

24. The Tribunal has carefully considered the evidence provided by the applicant in support of his case, documentary and oral, and that of his witness and sponsor, about the impact any failure to maintain health insurance for a period would have on the applicant’s biological children given that if the visa were refused. It is given that there would be a profound separation from their biological father. The Tribunal having weighed the circumstances within the family with the requirements of condition 8501 and cl 461.225, is satisfied it is not in the interests of the children, who are settled in Australia with their mother, to lose regular access to their father: it would be a matter of lasting grief. The Tribunal notes that both the applicant and his witness present as having been genuine in their commitment to the marriage while it lasted, and while they are no longer in the relationship, they have worked hard to restore some normality for their children’s sake and demonstrate that they remain deeply committed to the welfare of those children and the maintenance of a healthy family relationship beyond the breakdown.

25. The Tribunal notes that the applicant has suffered adverse circumstances related to the breakdown of the marriage and accepts his claim that he regrets that he did not better manage his migration situation. The Tribunal accepts that the applicant may have had limited English when he arrived in Australia which constrained his understanding of the migration process and further, that he was heavily distracted by his circumstances at the time. While such events are common to many visa applicants and an applicant for a visa is ultimately responsible for his own immigration considerations, in this case there is evidence that there was substantial compliance evident in the on-and-off attempt to sustain health insurance in the first year or two of the marriage, and that the applicant took steps to regularise his health cover as soon as he became aware he needed to do so.

    Conclusions

26. For the reasons above, the Tribunal is satisfied that the applicant satisfies condition 8501 of Schedule 8 of the Regulations while the holder of his last substantive visa and accordingly, the applicant meets cl 461.225 of Schedule 2 of the Regulations.

27. There is no suggestion before the Tribunal that the applicant has not complied with the conditions of his subsequent bridging visas.

    DECISION

28. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa:

    ·     cl. 461.225 of Schedule 2 to the Regulations.