Tern (Migration)

[2023] AATA 1245

Tern (Migration) [2023] AATA 1245 (2 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eng Wei Tern

REPRESENTATIVE:  Mrs Helen Chen (MARN: 1577428)

CASE NUMBER:  2213076

HOME AFFAIRS REFERENCE(S):          BCC2020/2903362

MEMBER:Peter Booth

DATE:2 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 2 May 2023 at 3.50 pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – health insurance in Australia – applicant departed Australia – no evidence provided – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 500.215; Schedule 8, Condition 8501; rr 1.03, 1.15

CASES

Hasran v MIAC [2010] FCAFC 40
Singh v MICMA [2022] FedCFamC2G 935   

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 15 August 2022 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 December 2020. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). 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 visa on the basis that the applicant did not satisfy the requirements of cl 500.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not hold adequate health insurance during the period of his intended stay in Australia.

4. The applicant was assisted in relation to the review.

5. On 27 March 2023 the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting the applicant to provide information about the review application in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 11 April 2023, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 29 March 2023, the applicant’s representative advised the Tribunal that the applicant had not responded to their attempts to contact him since late 2022.

7. The review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

8. On 14 April 2023 the Tribunal advised the applicant via his representative that his hearing had been cancelled, and invited him to provide any further information in support of his review application within seven days. On that same day, the applicant’s representative stated that the applicant had returned to Malaysia and could not be contacted. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 whether the applicant satisfies cl 500.215, which requires that applicant to give to the Minster evidence of adequate health insurance during the period of the applicant’s intended stay in Australia (‘the health insurance requirements’).

    Health insurance requirements

11. Clause 500.215 reads as follows:

    The applicant gives to the Minister evidence of adequate arrangements for health insurance during the period of the applicant’s intended stay in Australia.

12. Pursuant to the Act and the Regulations, overseas students (and members of their family unit) must maintain adequate arrangements for health insurance during their period of intended stay in Australia. This is reflected in the Schedule 2 criterion that requires all applicants to give ‘evidence of adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia’ (cl 500.215), and in condition 8501 which is attached to all student visas and requires a holder to ‘maintain adequate arrangements for health insurance while the holder is in Australia’.

13. Regulation 1.03 defines ‘adequate arrangements for health insurance’ to mean arrangements to be covered by health insurance:

    (a) that meet the requirements for health insurance specified in an instrument under reg 1.15L for the purposes of this paragraph; or

    (b) if no such requirements are specified – that are adequate in the circumstances.

14. Regulation 1.15L provides that the Minister may by legislative instrument specify the following for the purposes of paragraph (a) of the definition of adequate arrangements for health insurance in reg 1.03:

    (a) requirements for health insurance for a specified class or classes of visa;

    (b) requirements for health insurance for a specified class or classes of person.

15. There is no legislative instrument pursuant to reg 1.15L specifying the requirements for health insurance for a specified class or classes of visa or a specified class or classes of person.

16. PAM3 observes that the health insurance requirement can be satisfied if the student (or family member) is covered by:

    ·     the Overseas Student Health Cover (OSHC);

    ·     a national health scheme or arrangement approved by the Department of Health as being adequate health insurance;

    ·     a Defence or Department of Foreign Affairs and Trade sponsorship; or

    ·     an Endeavour Award.

17. Students from countries which have a specific agreement with Australia are exempt. PAM3 states that the Government wants to be able to monitor and regulate insurers covering people staying temporarily in Australia.

18. A select number of insurers have entered into a Deed for the Provision of Overseas Student Health Cover, which specifies the conditions on which insurers may offer OSHC for the purposes of satisfying cl 500.215 and condition 8501 (a condition attached to student visas that requires the visa holder to maintain adequate OSHC while in Australia).[1]

    [1] Commonwealth Ombudsman - Private Health Insurance, ‘Overseas Student Health Cover’, < accessed 31 March 2023; the Department of Health and Aged Care, ‘Deed for the Provision of Overseas Student Health Cover 1 July 2022’ < accessed 31 March 2023.

19. In a recent decision, Judge Laing of the Federal Circuit and Family Court of Australia considered a decision of the Tribunal to affirm the refusal of a student visa on the grounds that the applicant did not satisfy the health insurance requirement of cl 500.215: Singh v MICMA [2022] FedCFamC2G 935. In this case, the applicant acquired OSHC for a period ending before the end date of his study as specified in his Confirmation of Enrolment (‘COE’) for that course. The applicant claimed that he could in fact complete the course in a shorter time than listed in the COE, but did not provide documentary evidence of this fact. He later argued that he was seeking transition to another course for which he would receive credit, allowing him to complete his study within the period of his health insurance. Again, he did not provide documentary evidence to support this claim. In the absence of documentary evidence to establish the applicant’s assertions that he could complete the course within the period of his OSHC, the Tribunal determined the period in which he required OSHC by reference to his current COE. Accordingly, as the applicant did not extend his OSHC to cover the whole period of his COE, the Tribunal found he did not satisfy the health insurance requirements. Judge Laing found that such reasoning was open to the Tribunal in this case, noting in particular that the applicant had been afforded several opportunities to provide evidence of adequate health cover.

20. The decision record dated 15 August 2022 refused the student visa application on the basis that the applicant did not have health insurance as required. The decision record relevantly states as follows:

    On 30 December 2020, the applicant lodged a TU 500 student visa application. At the time the visa application was lodged, the applicant answered NO to the question “Does the applicant have Overseas Student Health Cover (OSHC)?”

    I also note at the time of assessment of the applicant’s student visa application no evidence of OSHC had been provided by the applicant.

    On 10 March 2021 the applicant was requested to provide evidence of OSHC covering the period of study in Australia for the Certificate of Enrolment for their intended study course. The applicant was provided with 90 days to provide this information.

    To date, no evidence of OSHC for the applicant has been provided. The applicant has not provided evidence of adequate arrangements in Australia for health insurance during the period of their intended stay in Australia. Therefore, the applicant does not meet the legal requirements in regulation 500.215.

21. By letter dated 27 March 2023 the Tribunal wrote to the applicant’s representative and requested that the applicant provide evidence of current health insurance and also of a current enrolment in a registered course of study. The applicant did not respond within the allowed time. By letter dated 14 April 2023 the Tribunal wrote to the applicant’s representative informing him that the applicant had lost his hearing rights. The applicant was again invited to provide information including evidence of current health insurance and of a current enrolment in a registered course of study. He was invited to do so before 4 PM on 21 April 2023.

22. By email dated 14 April 2023 the applicant’s representative informed the Tribunal that they had been unable to contact the applicant.

23. By emails dated 29 March 2023 and 14 April 2023 the representative informed the Tribunal that they had been unable to contact the applicant for some time and believed that he had returned to Malaysia.

24. The applicant has not contacted the Tribunal further. There was no evidence that the applicant has current health insurance.

25. Accordingly, the Tribunal is not satisfied that the applicant meets cl 500.215.

26. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Peter Booth
    Member