T & L Global Food Supply Pty Ltd (Migration)

[2018] AATA 2796

T & L Global Food Supply Pty Ltd (Migration) [2018] AATA 2796 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  T & L Global Foods Supply Pty Ltd

VISA APPLICANT:  Master Phu Tran

CASE NUMBER:  1619907

DIBP REFERENCE(S):  

MEMBER:Kate Millar

DATE:21 June 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits Master Phu Tran’s application for a Business (Temporary) Subclass 457 visa for reconsideration, with the direction that he meets:

·PIC 4006A for the purposes of cl.457.325(d) of Schedule 2 to the Regulations.

.

Statement made on 21 June 2018 at 10:46am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Visa applicant does not meet the health criteria – Where sponsor has undertaken to meet costs of the related condition – Whether the sponsor has the financial capacity to meet costs – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(9)
Migration Regulations 1994 (Cth), rr 2.25A, 4.01(4)(l), Schedule 1, Item 1223A1(bb), Schedule 2, 457.324, 457.325(d), Schedule 4, PIC 4006(1)(c), 4006A

CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This visa applicant in this review, Phu Tran, is the son of Mr Huy Quang Tran.  Mr Huy Quang Tran is a citizen of Vietnam.  He was granted a Business (Temporary) Subclass 457 visa to work as importer/exporter for T & L Global Foods Supply Pty Ltd on 18 May 2016.

2. Phu applied for a Temporary Business Entry (Class UC) Subclass 457 visa visa as a member of his father’s family unit.  This visa application was refused and he made a new application for the same visa on 5 August 2016.  This application was refused by a delegate of the Minister for Immigration on 22 November 2016. 

3. Phu has a conditional called glycogenosis which causes seizures and psychomotor retardation.  According to a Medical Officer of the Commonwealth, it also results in Phu having a severe intellectual impairment which means he does not meet the health requirements for the grant of the visa.

4. As Phu did not meet the health requirements and the delegate found these should not be waived, the delegate of the Minister for Immigration found he does not meet the criteria for the grant of the visa and his application was refused under s.65 of the Migration Act 1958 (the Act). 

5. T & L Global have applied for a review of this decision, arguing the health requirement should be waived because it is willing to meet the costs of Phu’s treatment for the period of the visa.

6. Mr Trung Quang Lam, the Managing Director of T & L Global appeared before the Tribunal on 1 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Huy Quang Tran and from the book keeper for T & L Global, Mrs Hang Thuy Dang.   The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  T & L Global was represented in relation to the review by its registered migration agent.

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

   JURISDICTION

8. An initial issue in this matter is whether the Tribunal has jurisdiction to hear and decide this matter. 

9. Schedule 1 Item 1223A1(bb) of Schedule 2 of the Migration Regulations 1994 (the Regulations) allows an application to be made as a secondary applicant for a Subclass 457 visa.

10. Section 338 of the Act sets out decisions that are “Part 5 Reviewable decisions”, which can be reviewed by this Tribunal. The provision that applies in this case is s.338(9) which states that a decision prescribed for the purpose of this subsection is a Part 5-reviewable decision.

11. Regulation 4.01(4)(l) states that a decision is prescribed for the purpose of s.338(9) if it is a decision to refuse to grant a Subclass 457 visa to a non-citizen who is outside Australia at the time of the application, and:

    (ii) the non-citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by:

    (A)  an Australian citizen; or

    (B)  a company that operates in the migration zone; or

    (C)  a partnership that operates in the migration zone; or

    (D)  the holder of a permanent visa; or

    (E)  a New Zealand citizen who holds a special category visa;

12. Phu was outside Australia when he applied for the visa. He is seeking to be granted the visa as a secondary applicant. The sponsorship requirement for the grant of a visa to a secondary applicant is contained in cl.457.324 of Schedule 2 of the Regulations which states that the applicant must be included in any nomination that is required in respect of the primary applicant (cl.457.324(1)).

13. T & L Global provided the application for approval of a nomination, which names Phu as a secondary applicant for the visa.  It has also provided a copy of the approval of the nomination. 

14. As Phu was included in a nomination in by a company that operates in the migration zone, the decision is reviewable under s.338(9) of the Act, and the Tribunal has jurisdiction to hear this matter.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether Phu meets the health criteria as required for the grant of the visa.

16. Under cl.457.325(d), a requirement for the visa is that Phu meets Public Interest Criterion 4006A (PIC4006A).  As is applies to Phu by virtue of the instrument IMMI15/144 this requires him to have a medical examination, which has occurred.

17. PIC 4006A also requires at 4006(1)(c) that Phu is free of a disease or condition in relation to which he would be likely to

    ·     require health care or community services or

    ·     meet the medical criteria for the provision of a community service

    during the prescribed period.

18. If this is the case, it must also be considered if the provision of the health care or community services would be likely to result in a significant cost to the Australian community in the areas of health care and community services or prejudice the access of an Australia citizen or permanent resident to health care or community services.  This is regardless of whether the health care or community services will actually be used in connection with the applicant. 

19. The relevant period is the period for which the Minister intends to grant the visa. This is the period until Mr Tran’s visa ceases on 18 May 2020.  

20. In determining whether a person meets PIC 4006A(1)(c), r.2.25A requires the Tribunal to seek the opinion of a Medical Officer of the Commonwealth (MOC). Where an opinion of a MOC is required, the Tribunal must take it be correct: r.2.25A(3).

21. To take the MOC opinion as correct, the Tribunal must first be satisfied the MOC has applied the correct test in forming the opinion: Robinson v MIMIA (2005) 148 FCR 182 and Ramlu v MIMIA [2005] FMCA 1735. That is, the opinion must identify the medical condition to which the public interest criterion has been applied, and the form or level of the condition suffered by the applicant, and the MOC must have applied the statutory criteria by reference to a hypothetical person who suffers from that form or level of the condition.

22. In the initial information before the Tribunal, the MOC was incomplete and was not signed.  The Tribunal requested further information on the MOC assessment from the Department but did not receive this information before the hearing.  The applicant could not provide an assessment other than the incomplete assessment.

23. Two days after the hearing, the Department provided the opinion of the medical officer of the Commonwealth.  This was dated 9 August 2016, after the date of the visa application.  This opinion identifies the public interest criterion that has been applied, the form or level of the condition suffered buy Phu and applies the statutory criterion by reference to a hypothetical person who suffers from that form or level of the condition.  A further document specifies that the likely cost to the Australian community is $422,000. 

24. Mr Tran raised a concern that Phu has been incorrectly assessed as having cerebral palsy.  While this was the case in a previous MOC assessment, the assessment before me states he has a severe intellectual impairment secondary to a glycogen metabolic dysfunction.  The MOC states the immigration medical examination of 11 July 2016 and the report of Dr Vu Kim Hoan dated 18 July 2016 have been considered. 

25. Accordingly, based on the opinion of the MOC, Phu does not satisfy PIC 4006A(1)(c).  This was properly conceded by the applicant, who acknowledged that a MOC had been conducted and did not seek any further assessment of Phu. 

26. Under PIC 4006A(2) the requirements of paragraph PIC4006A(1)(c) may be waived if T & L Global has given an written undertaking that it will meet all costs related to the disease or condition that causes the applicant to fail the requirements of that paragraph.

27. T & L Global most recently provided a written undertaking signed by Trung Quang Lam on 3 November 2016.    This contains, among other things, a statement that Mr Lam is authorised to represent T & L Global, that the entry to Australia of Phu is estimated to potentially result in a cost of $422,000 and provides an undertaking that T & L Global will meet all health care and community services costs relating to the condition that caused Phu not to satisfy the health requirements.   

28. The decision record of the delegate states that the applicant was provided an opportunity to complete health waiver documents which were provided to the delegate, and goes on to state that “the Delegate made the decision not to exercise a waiver of the Does Not Meet health outcome based on all available information.”  This does not provide any reasons why the health condition was not waived, and denies the applicant a meaningful opportunity to consider the reason or reasons the delegate declined to exercise a waiver. 

29. As the estimated cost was $422,000 at the time of the assessment, and Mr Tran’s visa now has only two years, remaining the cost that T & L Global may have to meet is now approximately $211,000.   The potential cost of Phu’s treatment or care is relevant as to T & L Global’s ability and willingness to meet these costs if required.

30. On being asked why he signed the undertaking, Mr Lam said that Phu’s condition was not as serious as the delegate states.  He said that he came to this view because he has visited the family and his condition is not contagious.  Mr Lam said he has watching Phu for the past two years and his daily life is just like other children.  He said the only treatment Phu has is occasional acupuncture.  On being asked if he thought he would have to pay the amounts specified in the assessment, Mr Lam said he was if it was necessary. 

31. A draft profit and loss statement for 2015 and 2016 show the company made a net profit of $85,880 in 2015 and $165,213 in 2016.  It is stated to have net assets of $281,099 in 2016. 

32. A profit and loss statement for the 2017 financial year, created 26 April 2018, states the company had a net profit of $205,414.  No information was provided on assets or liabilities of the business.  The taxable income in the company 2017 tax return for 2017 is $293,449. 

33. On being asked about T &L Global’s financial statements which shows it owes over half a million dollars to trade creditors, Mr Tarn said his accountant would be better placed to answer questions.  It transpired that the witness who attended is the company book keeper, who is not an accountant and holds a Certificate IV in book keeping.  The accountant prepares the tax returns and statements from information provided by the book keeper.  Nevertheless, she advised that the trade debt and credit results from trade within the group of supermarkets, as T & L Global purchases products for the entire group. 

34. Mr Lam said he has three chains of supermarkets with a combined profit of over $2M, and that other companies within the chain could also meet the costs if required.  T & L Global is the entity responsible for sponsoring Mr Tran.  I do not have the corporate structures of the other companies before me, not are there undertakings on behalf of any associated companies about meeting Phu’s costs.  As a result I have only had regard to the financial affairs of T & L Global. 

35. Having considered the financial position of T & L Global, it is in a position to meet the potential costs of Phu’s treatment and care. 

36. Mr Lam was asked why he was willing to potentially spend such a large proportion of the profit of the company on Mr Tran’s child, and he said Mr Tran has a lot of contacts and will grow the company in the next five years.

37. Mr Lam said Mr Tran has a strong background as a rice export broker in Vietnam and is an expert in marketing relations and management, and he had found him to be a loyal and enthusiastic employee.  Mr Lam said Mr Tran is the main assistant to him in operating the NP Supermarket chain and plays a vital role in the company. 

38. The company submits Mr Tran’s annual income is now $100,000 which also enhances his ability to provide for Phu. 

39. T & L Global submitted that the costs specified would not, in fact, be incurred as Phu is not eligible for state disability services, as a requirement to access state disability services in Western Australia is that the person is an Australian citizen, Australian permanent resident or a holder of a particular type of visa. The National Disability Insurance Scheme also has requirements to be eligible. 

40. PIC 4006A (1)(c)(ii) looks to the likelihood of a cost or prejudice to access regardless of whether the health care or community services will actually be used in connection with the applicant, and as such I do not consider meeting the eligibility requirements for these services is necessary.

41. In light of further information about the financial affairs of T & L Global, and given the oral evidence from its managing director that it will meet the costs of Phu’s condition, I am satisfied PIC4006A(1)(c) should be waived.  As a result, he meets PIC 4006A.

    DECISION

42. The Tribunal remits Master Phu Tran’s application for a Business (Temporary) Subclass 457 visa for reconsideration, with the direction that he meets:

    ·PIC 4006A for the purposes of cl.457.325(d) of Schedule 2 to the Regulations.

    Kate Millar
    Member