Syla (Migration)

This matter concerned an application by Mr Adem Syla, a citizen of Kosovo, for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa. Mr Syla arrived in Australia in 2013 and married a New Zealand citizen, with whom he had two children. The parties ceased cohabiting in November 2015, but Mr Syla maintained financial support and a relationship with his children. Mr Syla claimed he relied on his then-wife for immigration matters due to his limited English and understanding of Australian processes, and was unaware of the requirement to hold private health insurance until advised by his migration agent. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Mr Syla had substantially complied with condition 8501 of his last substantive visa, which required him to maintain adequate arrangements for health insurance in Australia. This condition is a prerequisite for the grant of a further Subclass 461 visa, as stipulated by clause 461.225 of the Regulations, which requires substantial compliance with the conditions of the last substantive visa held. Departmental policy indicated that "adequate arrangements" generally meant private health insurance, unless a reciprocal health care agreement applied, and that evidence of cover for at least the initial 12 months of a visa was typically required.

The Tribunal considered the departmental policy alongside the principles established in *Kim v Witton* (1995) 59 FCR 258, which suggests that substantial compliance should take into account the nature and significance of the breach, whether it was deliberate, and any contributing factors to the applicant's failure to appreciate the breach, including potential misleading by the Department. Mr Syla's last substantive visa was valid from May 2013 to May 2018. While departmental records showed he held health insurance from May 2018, Mr Syla asserted he only took out cover on 17 August 2019, after his substantive visa had expired, and that he was unaware of the requirement due to his reliance on his wife and limited English. He also noted a period of non-coverage due to financial hardship during the COVID-19 pandemic.

The Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that Mr Syla meets the criteria for a Subclass 461 visa, specifically in relation to clause 461.225 of Schedule 2 to the Regulations, indicating that the assessment of substantial compliance with condition 8501 warranted further review.