1513017 (Migration)

[2016] AATA 3158

1513017 (Migration) [2016] AATA 3158 (29 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khai Siang Kok

CASE NUMBER:  1513017

DIBP REFERENCE(S):  BCC2013/1657168 BCC2015/2910314 BCC2015/2910315

MEMBER:Don Lucas

DATE:29 January 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl.457.324D of Schedule 2 to the Regulations.

Statement made on 29 January 2016 at 2:30pm

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 3 September 2015 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 15 October 2013. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.457.324D was not met because the applicant had not provided evidence that he had adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   The Tribunal’s jurisdiction

6. The Tribunal has primarily considered whether it has jurisdiction to conduct the review and has determined that it has jurisdiction to review pursuant to s.338 of the Act, by reference solely to the enabling terms of s.338(2)(a), s.338(2)(b) and s.338(2)(c), and without reference to s.338(2)(d), which the Tribunal finds is not applicable in the present circumstances. The Tribunal now discusses its reasons for finding that it has jurisdiction.

7. As discussed below, the review applicant has been found to be the de facto spouse of Mrs Jennifer Wong, who is presently the holder of a subclass 457 visa valid until 22 June 2016. The review applicant has separately applied for a visa having claimed to be the de facto partner of a subclass 457 visa holder, meeting the family unit member criteria contained within cl.457.321, which states:

   The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

8. In addition to the criteria requiring a secondary applicant for a 457 visa to be a member of the family unit of the primary applicant, the criteria in schedule 2 place additional requirements upon a secondary applicant, which are contained in cl.457.324:

   (1) The applicant is included in any nomination that is required in respect of the primary applicant.

   (2) If the applicant is not included in any nomination that is required in respect of the primary applicant:

   (a)  the standard business sponsor who has the most recent approved nomination under section 140GB of the Act, or under regulation 1.20H as in force immediately prior to 14 September 2009, of an occupation in relation to the primary applicant has agreed in writing that the applicant may be a secondary sponsored person in relation to the standard business sponsor; or

   (b)  the former standard business sponsor who has the most recent approved nomination under section 140GB of the Act, or under regulation 1.20H as in force immediately prior to 14 September 2009, of an occupation in relation to the primary applicant has agreed in writing that the applicant may be a secondary sponsored person in relation to the former standard business sponsor; or

   (c)  a party to the labour agreement who has the most recent approved nomination under section 140GB of the Act, or under regulation 1.20H as in force immediately prior to 14 September 2009, of an occupation in relation to the primary applicant has agreed in writing that the applicant may be a secondary sponsored person in relation to that party; or

   (d)  a former party to the labour agreement who has the most recent approved nomination under section 140GB of the Act, or under regulation 1.20H as in force immediately prior to 14 September 2009, of an occupation in relation to the primary applicant has agreed in writing that the applicant may be a secondary sponsored person in relation to that former party. 

9. As the present review applicant was not included in the nomination in which the primary applicant was identified, he does not meet cl.457.324(1). Relevantly to his circumstances, he has therefore been required to meet the criterion in cl.457.324(2)(a) that the standard business sponsor which most recently nominated his de facto partner as the primary applicant has agreed in writing that the review applicant “may be a secondary sponsored person”. The Department’s file contains a letter dated 9 October 2013 from True Elite Business Services Pty Ltd, the standard business sponsor which had most recently nominated the primary visa holder[1]. The effect of the business sponsor’s letter is to extend sponsorship obligations to the applicant upon any grant of a subclass 457 visa to him as a secondary subsequent subclass 457 visa applicant, as contemplated by cl.457.324(2)(a).

   [1] BCC2013/1657178, f. 50.

10. A secondary sponsored person is defined separately in r.2.57 as follows:

    secondary sponsored person:

    (a)      in relation to a person who is or was approved as a sponsor in a class of sponsor (the approved sponsor) under subsection 140E(1) of the Act — means:

    (i)      a person:

    (A)      who holds a visa prescribed for the purposes of section 140A of the Act; and

    (B)      who was granted the visa on the basis of having satisfied the secondary criteria for the grant of the visa; and

    (C)      either:

    (I)      who was last identified in an approved nomination by the approved sponsor; or

    (II)      in relation to whom the approved sponsor was the last person to have agreed, in writing, to the person being a secondary sponsored person in relation to the approved sponsor; or

11. It is very clear from the terms of the definition of secondary sponsored person that an applicant can only become a secondary sponsored person following the grant of their subclass 457 visa, once having been found to meet relevant secondary criteria for the grant of a subclass 457 visa. For this reason, it is not - and cannot logically be - a criterion under cl.457.324(2) that secondary applicant for a 457 visa is already a secondary sponsored person, and the facilitative terms of cl.457.324(2) reflect this with the use of the expression “may be” a secondary sponsored person on the basis of the written agreement from the sponsor of the primary applicant.

12. For this reason, there is as a matter of law no “sponsorship” criterion applicable for any secondary subsequent applicant for a subclass 457 visa. Applicants in this category are not required to be sponsored or nominated, they are simply required to be a member of the family unit of an initially nominated primary applicant, who were either included as family members on the original nomination, thus meeting cl.457.324(1), or added subsequently with the standard business sponsor’s agreement in writing, as contemplated by cl.457.324(2)(a), which serves to facilitate them becoming secondary sponsored persons following visa grant.

13. The Tribunal must review certain decisions, termed “Part 5-reviewable decisions”, that is, decisions reviewable under part five of the Migration Act .[2] The Tribunal will refer to them as Part 5-reviewable decisions.

    [2] Section 348 of the Act-subject to an exception which is not applicable in this case.

14. Not all decisions made under the Migration Act are decisions which can be reviewed by the Tribunal. Section 338 of the Migration Act sets out a list of those decisions which are Part 5-reviewable decisions. Regulation 4.02 of the Migration Regulations sets out prescribed reviewable decisions and who may apply for review. It also provides that “sponsored includes being identified in a nomination under section 140GB of the Act”.[3]

    [3] Reg.4.02(1AA) for the purpose of section 337 of the Act

15. In this case the relevant decision is to refuse the review applicant a subclass 457 visa. For the purpose of section 338, it is important to note where the visa application was made for the purpose of determining whether is it is a reviewable decision, and who may make the application for review. The application was made onshore, that is in Australia, and importantly not when the applicant was in immigration clearance or had been refused immigration clearance. It is a visa of the type which can be granted while the applicant is in the migration zone.

16. Section 338 (2) of the Act is the applicable provision in this case in relation to an onshore visa applicant. Section 338 of the Act relevantly provides:

    .

    (1)       A decision is a Part 5-reviewable decision if this section so provides, unless:

    (a)      the Minister has issued a conclusive certificate under section 339 in relation to the decision; or

    (b)      the decision is a Part 7-reviewable decision; or

    (c)      the decision is to refuse to grant, or to cancel, a temporary safe haven visa; or

    [(d) inserted by Act No. 135 of 2014 with effect on and from 18/04/2015 - application see items 27 and 28 of Pt 2 of Sch 4 to Act No. 135 of 2015 - LEGEND note]

    (d)      the decision is a fast track decision.

    (2)   A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

    (a)      the visa could be granted while the non-citizen is in the migration zone; and

    (b)      the non-citizen made the application for the visa while in the migration zone; and

    (c)      the decision was not made when the non-citizen:

    (i)      was in immigration clearance; or

    (ii)      had been refused immigration clearance and had not subsequently been immigration cleared; and

    (d)      where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

    (i)      the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

    (ii)      an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

17. In its consideration, the Tribunal has examined the question of its jurisdiction by reference to current case law. It is noted that on 16 December 2015, the Full Federal Court handed down its decision in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182. Amongst the findings made by the Full Court was that the decision of the Federal Circuit Court in Lee was incorrect to the extent that s.338(2)(d)(i) required an approved nomination under s.140GB for jurisdiction to be enlivened, and that a pending nomination was sufficient for an applicant to be identified in a nomination. In Ahmad, the Full Court further found that either a pending review of a decision to refuse standard business sponsorship status, or a pending review of a decision refusing a standard business sponsor in a nomination application, were both sufficient to enlivened jurisdiction under s.338(2)(d)(ii).

18. Subsection 338(2)(d) requires that the visa is a temporary visa of a kind prescribed for the purposes of this paragraph. Regulation 4.02 (1A) lists subclass 457 visas[4] as prescribed visas for the purpose of section 338 (2)(d).

    [4] Reg.4.02(1A)(k)

19. The chapeau of s.338(2)(d) premises its application only to reviews concerning certain temporary visas containing a criterion requiring being “sponsored by an approved sponsor”. Ultimately, the question for the Tribunal is whether s.338(2)(d) is in any way relevant or applicable to an applicant such as the present, who has sought to meet secondary criteria for the grant of a subclass 457 visa including membership of family unit requirements in cl.457.321, which involves no sponsorship criterion at all.

20. As outlined above, the reference in cl.457.324(2) to “secondary sponsored person” cannot properly be characterised as a sponsorship criterion for subsequent secondary applicants, for reasons which include the fact that a person can only become a secondary sponsored person following the grant of a subclass 457 visa as a secondary subsequent applicant. It is not a criterion that the secondary applicant be sponsored, but rather cl.457.324(2) serves as an enabling provision that extends sponsorship obligations made by a standard business sponsor to any member of the family unit of a primary subclass 457 visa holder following visa grant to the secondary subsequent applicant.

21. Relevantly to this consideration, the Tribunal has considered an earlier decision in the Federal Magistrates Court in Kim & Ors V Minister For Immigration & Anor [2007] FMCA 166 (Smith FM, 6 February 2007) (Kim).  The situation of secondary visa applicants was considered in Kim, although as discussed below, in a materially different context to that of the present review applicant. The context of the consideration of jurisdiction in respect of secondary applicants in Kim involved the initial question of jurisdiction for a primary applicant, who was most certainly required to meet a sponsorship criterion, with certain family members joined to the application as secondary applicants. The factual circumstances involved the relevant sponsorship having been withdrawn prior to the primary applicant lodging an application for review, including family members as secondary applicants, depriving the primary applicant of jurisdiction under s.338(2)(d).

22. In Kim, the Tribunal’s jurisdiction had been limited to consideration of s.338(2)(d), ‘where it is a criterion for the grant of the visa that the noncitizen is sponsored by an approved sponsor, and the visa is a temporary visa’ relevantly prescribed (in that case also, a subclass 457 visa). In Kim, the Federal Magistrate considered that the words ‘where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor’ in s.338(2)(d) did not require consideration of each applicant for review. Rather, it was held that the criterion of sponsorship is relevant in that context only to what the primary visa applicant must satisfy. The Federal Magistrate went on to observe that for secondary applicants, the situation would be futile if the primary applicant was unable to establish jurisdiction under s.338(2)(d), and a reading of s.338(2)(d) to include jurisdiction for a secondary applicant joined to a primary application could produce the absurd result where secondary applicants have jurisdiction but a primary applicant does not. Thus in Kim, the “noncitizen” having to satisfy the sponsorship criterion in s.338(2)(d) was interpreted as referring only to the primary subclass 457 visa applicant.

23. However, the Tribunal considers that the authority of Kim is distinguishable in the present circumstances, which involves a stand-alone application by a subsequent secondary applicant for a subclass 457 visa, where there is no sponsorship/nomination for a secondary applicant, and no longer any live nomination criterion relating to a primary applicant. In such circumstances, the ‘family head’ already holds a subclass 457 visa, and accordingly any nomination of the primary visa applicant made under section 140 GB will have expired following subclass 457 visa grant, under the terms of r.2.75 (discussed further below).

24. The consideration in Kim was limited to the question of whether s.338(2)(d) applies to a secondary subclass 457 visa review applicant whose application is joined to and dependent on the jurisdiction and the outcome of a primary applicant required to meet relevant sponsorship criteria. In those circumstances, the sponsorship (nomination) criterion remains live.

25. However, as noted above, there is no sponsorship criterion in relation to a secondary applicant seeking to meet the family unit criteria in cl.457.321. For a subsequent secondary applicant, no such futility concerns arise as were present in Kim where secondary applicants’ jurisdiction was found to be predicated on the primary applicant’s jurisdiction. Significant in this regard is the absence in Kim of any consideration of the enabling jurisdictional provisions contained within s.338 in its entirety. Importantly, the judgment [at 16] only extracts a part of s.338:

    16The relevant provisions of s.338 were:

    338     (1)       A decision is an MRT-reviewable decision if this section so provides, …

    (2)       A decision … to refuse to grant a non-citizen a visa is an MRT-reviewable decision if: 

    (a)       the visa could be granted while the non-citizen is in the migration zone; and

    …

    (d)       where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph: 

    (i)        the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

    (ii)      an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending. 

26. Significantly, s.338(2)(b) and (c) are omitted from the Court’s discussion of the statutory provisions enabling jurisdiction, and are substituted in the Kim judgment by an ellipse; these provisions state, in addition to s.338(2)(a) requiring that the visa could be granted whilst the noncitizen is in the migration zone, that:

    (b)      the non-citizen made the application for the visa while in the migration zone; and

    (c)      the decision was not made when the non-citizen:

    (i)      was in immigration clearance; or

    (ii)      had been refused immigration clearance and had not subsequently been immigration cleared; and

27. It is manifestly clear to the Tribunal that the applicant in the present case meets s.338(a), (b) and (c), by reference to the fact that under schedule 2 of the regulations, a subclass 457 visa may be granted to an applicant in the migration zone; that the applicant was in the migration zone on 15 October 2013 when the application was made, and was neither in immigration clearance nor had been refused immigration clearance when the application was made. The circumstances for an onshore subsequent secondary applicant for a 457 visa are in this respect no different from an onshore applicant for other temporary visas that have no sponsorship criterion (such as a student visa or a visitor visa) who is subject to an onshore decision by the Department to refuse the visa and who seeks review in this Tribunal.

28. The judgment in Kim also states at [18] that:

    There is no suggestion in the papers that any other avenue of jurisdiction was open to the primary applicant, if she could not satisfy s.338(2)(d). Whether the secondary applicants needed also to satisfy that provision, will be considered further below.

29. The judgment in Kim then proceeds only to consider why s.338(2)(d) does not apply to a secondary 457 visa applicant and does not – and did not need to - separately consider whether s.338(2)(a), (b) and(c) would be sufficient to enliven jurisdiction for a secondary subsequent subclass 457 visa applicant. In this context, the discussion of legislative intent and the futility for finding jurisdiction for a secondary applicant where a primary applicant lacks jurisdiction [25-25] is limited to consideration of why s.338(2)(d) does not apply to a secondary applicant, in circumstances where they are joined to the primary applicant’s review application As indicated above, the Tribunal entirely agrees that s.338(2)(d) does not apply directly to a secondary applicant for a subclass 457 visa.

1. The Tribunal considers that this circumstance for subsequent secondary subclass 457 applicants is very different from secondary applicants joined to a primary applicant’s initial application for a subclass 457 visa, where the sponsorship (or nomination per r.4.02(1A)) criterion remains live. The currency of any nomination made under s.140GB immediately ends, under the terms of r.2.75(c), once the primary applicant is granted a subclass 457 visa:

   (2) An approval of a nomination ceases on the earliest of:

   (a) the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and

   (b) 12 months after the day on which the nomination is approved; and

   (c) the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and

2. Accordingly, for a subsequent secondary subclass 457 visa applicant, seeking to join a primary applicant on a subclass 457 visa in Australia,  there is no longer even any tangential nexus to the sponsorship criterion (or relevantly, per r.4.02(1A), the nomination criterion) that must be met by a primary applicant.

3. For the reasons provided above, the circumstances for the applicant in the present review are distinguishable from those considered by the Court in Kim.

4. The Tribunal finds that s.338(2)(d) has no application whatsoever to the circumstances of a subsequent secondary applicant, who is simply required to establish jurisdiction in this Tribunal by satisfying s.338(a), (b) and (c). For the reasons given above, the applicant clearly satisfies s.338(a), (b) and (c) and the Tribunal finds it has jurisdiction to conduct the review accordingly.

5. The Tribunal observes that an earlier review application made by the present applicant resulted in findings made on 3 June 2015 that the applicant met the requirements in clause 457.321, namely that he was a member of the family unit of a primary subclass 457 visa holder by virtue of being the de facto partner of Ms Jennifer Wong (case number 1407901). In the earlier review, the Tribunal proceeded on the basis of jurisdiction being enlivened without making specific findings on the basis of its jurisdiction.  In light of the reasons above, the Tribunal in the present review considers that the Tribunal in matter 1407901 lawfully assumed its jurisdiction to conduct that review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant satisfies cl.457.324D, which provides:

   Except for an applicant who seeks to satisfy the secondary criteria on the basis of being a member of the family unit of the primary applicant who has met the requirements of subclause 457.223(8), as in force immediately before 23 March 2013, or subclause 457.223(9) as in force immediately before 24 November 2012, the Minister is satisfied that the applicant has adequate arrangements in Australia for health insurance during the period of the applicant’s intended stay in Australia.

7. The evidence before the Tribunal is that the applicant is the de facto spouse of a subclass 457 visa holder, Ms Jennifer Tze Wei Wong. In this regard, the Tribunal refers to the earlier review conducted by the Tribunal in relation to the same applicant, case number 1407901. In this earlier review, on 3 June 2015 the Tribunal made findings that the applicant satisfied cl.457.321, requiring him to be a member of the family unit of a primary subclass 457 visa holder.

8. The evidence before the Tribunal is that the applicant’s de facto spouse was granted a subclass 457 visa on 22 June 2013 which is valid until 22 June 2016. Other evidence indicates that the applicant’s spouse was granted a subclass 457 visa under the standard business sponsorship stream in cl.457.223(4), and accordingly clauses 457.223(8) and (9) are not applicable. The applicant is accordingly required to demonstrate he has adequate arrangements in Australia for health insurance during his proposed period of stay in Australia which presently ends on 22 June 2016.

9. The departmental file indicates that the applicant had provided correspondence from Bupa Australia dated 8 October 2013 confirming that the applicant was included in private health insurance cover issued to his de facto spouse Ms Jennifer Wong as the primary visa holder. The nature of the cover is described as “Short Stay Education Cover”, with a commencement date of 8 October 2013.

10. The delegate found that at the time of the primary decision on the current matter made on 3 September 2015, there was an absence of recent independently verifiable evidence demonstrating adequate arrangements for health insurance.

11. On application for review, the applicant provided an updated letter dated 8 September 2015 confirming ongoing cover of health insurance through Bupa Australia Pty Ltd concerning the primary visa holder Ms Jennifer Wong and including the applicant as her de facto spouse. The membership number is the same as the policy details previously provided to the Department. However, the nature of the cover is now described as “Essential visitors cover”. It also confirms the start date of cover as 18 April 2013.

12. Publicly available information from Bupa indicates that Essential visitors cover is designed to include temporary residents including subclass 457 visa holders.[5]

    [5] >

    The updated letter from the applicant’s private health insurer makes reference to arrangements for ongoing payment via direct debit and that the issuance of the letter itself confirms that at least one month’s premium payment had been made in advance.

13. The Tribunal has had regard to relevant departmental policy contained within PAM 3, which states[6]:

    Visa applicants do not need to provide evidence that they have paid for the entire period of insurance up-front. For example applicants may:

    ·    pay for their policy via a regular “direct debit” arrangement

    ·           obtain a cover note or certificate of cover from an acceptable insurer providing the cover commences when the visa is granted or on the date they arrive in Australia or

    ·           (for those visa holders with permission to work) organise health insurance premium deductions from their wages.

    In order to certify that the applicant has made adequate arrangements, insurance companies may or may not require up-front payment of the policy. Either is acceptable, as long as certification is provided that the applicant and their dependants will be covered immediately upon visa grant or arrival in Australia. An insurance policy number should be quoted.

    [6] PAM - Sch2 Visa 457 - Temporary Work (Skilled) - Nominations and visa applications

14. On the basis of the above, the Tribunal is satisfied that the applicant has demonstrated adequate arrangements for health care during the proposed period of stay.

15. Accordingly, cl.457.324D is met.

    CONCLUSIONS

16. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

17. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.324D of Schedule 2 to the Regulations

    Don Lucas

    
    

    Member