Ngo (Migration)

[2021] AATA 1353

Ngo (Migration) [2021] AATA 1353 (23 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Tu Uyen Ngo

VISA APPLICANTS:Ms Thi Bich Thuy Dang
Ms Thi Tu Anh Ngo

CASE NUMBER:  1809885

DIBP REFERENCE(S):  CLF2014/031631 OSF2014/031631

MEMBER:Justine Clarke

DATE:23 March 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first and second-named visa applicants meet the following criteria for a Subclass 143 (Contributory Parent) visa:

·the second-named visa applicant meets PIC 4005(1)(ab) for the purposes of cl.143.229 and cl.143.324 of Schedule 2 to the Regulations.

Statement made on 23 March 2021 at 5:08pm

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – health criteria – Form 40 to include the sponsorship of spouse was not completed – validity of visa application – member of family unit – Divorce Order – no longer a member of the family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12; Schedule 2, cls 143.229, 143.324; Schedule 4, PIC 4005

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 31 January 2018 to refuse to grant the visa applicants Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act).

2. On 13 November 2014, the visa applicants applied for the visas and the review applicant sponsored the application for the visas. It is claimed that the first-named visa applicant (hereafter Ms Dang or the primary visa applicant) is the mother of the review applicant and the second-named visa applicant (hereafter Anh). The Tribunal is satisfied, based on the evidence before it, that, at the time of application for the Subclass 143 visas, neither Ms Dang nor Anh held a Subclass 173 (Contributory Parent (Temporary)) visa nor a substituted Subclass 600 visa.

3. In the primary decision, Mr Van Nhuan Ngo was said to have been included as another secondary visa applicant in the application. It is claimed that Mr Ngo is the father of the review applicant and Anh.

4. The review applicant provided the Tribunal with a copy of the delegate’s decision. The decision explains that, on 12 September 2017, the Medical Officer of the Commonwealth (MOC) found that Mr Ngo did not meet Public Interest Criterion (PIC) 4005(1)(c)(ii)(A). Clause 143.229[1] of Schedule 2 to the Migration Regulations 1994 (the Regulations) requires that each member of the family unit of the person seeking to satisfy the primary criteria must meet PIC 4005.[2] The delegate found that Ms Dang, Anh and Mr Ngo each did not satisfy cl.143.229.

   1The primary decision contains an extract of cl.143.229. It is a primary criterion and must be met at the time of decision. The Tribunal notes that the requirement in cl.143.229 pertaining to PIC 4005 applies only if, at the time of application for the Subclass 143 visa, the applicant was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa and was not the holder of a substituted Subclass 600 visa.

   2Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. For specified temporary visas, certain specified health care and community service are excluded from this consideration: PIC 4005(3). In this case, as the visa applicants have applied for permanent visas, the exclusion provision in PIC 4005(3) does not apply.

5. As explained in the note to cl.143.2, ‘[t]he primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria’. It is not clear why the delegate considered cl.143.229 in relation to Anh and Mr Ngo when their applications were made on the basis that they are members of the family unit of Ms Dang and accordingly needed to satisfy the secondary criteria only.

6. On 9 April 2018, the review applicant applied to the Tribunal for review of the primary decision. The Tribunal notes that the review applicant expressly did not seek review of the decision in respect of Mr Ngo on the basis that Ms Dang and Mr Ngo are no longer spouses. In this review, the review applicant has been represented by her registered migration agent.

7. On 13 July 2020, the Tribunal wrote to the review applicant, by way of the representative, and invited her to obtain a further opinion from the MOC in respect of Mr Ngo because the earlier opinion was no longer current.

8. On 27 July 2020, the representative submitted correspondence dated 24 July 2020 in which it was stated that Mr Ngo and Ms Dang had divorced, and that Mr Ngo no longer seeks a visa to Australia. The representative submitted a copy of the Divorce Order made on 6 April 2018 by The People’s Court of Tieu Can District of Tra Vinh Province. Accordingly, it was submitted that Mr Ngo is no longer considered a member of the family unit of Ms Dang. Further, the representative undertook to provide, within 14 days, statements from the review applicant, Ms Dang ‘and her family members’ in respect of the marriage and divorce between Mr Ngo and Ms Dang. The representative explained that, ‘[f]ollowing which, we will be submitting that Ms Ngo’s mother and sister seek to satisfy cl.143.229 by reason that they have met their health requirements’.

9. The letter also stated:

   Further, we are of the opinion that the addition of Mr Ngo to Ms Dang’s application has not been formally made. We submit that whilst a Form 1436 was submitted, a new updated Form 40 has not been submitted.

   We note that [the] sponsorship requirement is a criteria to be satisfied at time of application, as such we submit that without an updated form 40 to include the sponsorship of Mr Ngo, Mr Ngo’s application to be added as the secondary applicant has not been completed and should be taken as not having been approved.

10. In the following months, the representative wrote to the Tribunal on a number of occasions requesting further time, submitting some evidence and explaining the reasons for the delay in providing further evidence that the review applicant wished to submit. The final evidence was submitted on 12 November 2020.

11. On 15 March 2021, the Tribunal made enquiries with the Department as to the outcome of any health examinations that Ms Dang and Anh may have undertaken. On 16 March 2021, the Department informed the Tribunal that each individual had been found to meet the health requirements but that, with respect to Ms Dang, this finding had expired on 10 May 2018 and, with respect to Anh, this finding had expired on 27 April 2018.

12. Having reviewed the material before it, the Tribunal formed the view that a hearing was not needed. The Tribunal determined that it was able to find in favour of the review applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the visa applicants meet PIC 4005 as required by the criteria for the grant of the visa. PIC 4005 requires a visa applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

15. In assessing the issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files.

    Consideration of whether Anh meets PIC 4005

16. PIC 4005(1)(ab) requires an applicant to comply with any request by the MOC to undertake a medical assessment. On the basis of the evidence before it, the Tribunal is satisfied that, at the time of this decision, Anh meets PIC 4005(1)(ab) for the purposes of cl.143.229 and cl.143.324.[3] That said, the Tribunal anticipates that the Department would require her to undertake a further health assessment given the former examination result is no longer current.

    3Clause 143.324 is a secondary criterion and must be met at the time of decision. Similarly to the requirement in cl.143.229, the requirement in cl.143.324 pertaining to PIC 4005 applies only if, at the time of application for the Subclass 143 visa, the applicant was not the holder of a Subclass 173 (Contributory Parent (Temporary)) visa and was not the holder of a substituted Subclass 600 visa.

17. While the review applicant did not seek review of the decision to refuse Mr Ngo’s application for the visa, nevertheless, it is necessary to resolve the status of Mr Ngo because, as has been explained, each member of the family unit must meet PIC 4005.

    Consideration of whether Mr Ngo is a member of the family unit

18. With respect to the representative’s submissions that the addition of Mr Ngo to Ms Dang’s application was not formally made because an updated Form 40 to include the sponsorship of Mr Ngo was not completed, the Tribunal makes the following comments.

19. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in r.1.12. The definition in r.1.12 applies for the purposes of both the Act and the Regulations. As the applications for the visas were lodged before 19 November 2016, the former version of r.1.12 applies. Regulation 1.12(1)(a) provides that a person will be a member of the family unit of another person (referred to as ‘the family head’ in the subregulation) if he or she is a spouse (as defined in s.5F of the Act) or de facto partner (as defined in s.5CB of the Act) of the family head.

20. It will be recalled that cl.143.229 requires that each member of the family unit of the person seeking to satisfy the primary criteria must meet PIC 4005. This is regardless of whether they are an applicant for the visa or not: item 1(a) of the table in cl.143.229 and item 1(b) of the table in cl.143.230.

21. The requirement for a non-migrating member of the family unit to undergo health checks can be waived if it would be unreasonable to require the check. However, Mr Ngo has already undertaken (and failed) a health check meaning it could no longer be said that requiring him to undertake a health check would be unreasonable. As long as Mr Ngo is a member of Ms Dang’s family unit, he will need to satisfy PIC 4005. If he does not, Ms Dang does not appear to meet cl.143.229 (if Mr Ngo is migrating) or cl.143.230 (if Mr Ngo is not migrating). 

22. Accordingly, it is irrelevant whether or not Mr Ngo has made a valid application for the visa. In any event, the visa application requirements for a Subclass 143 visa do not include a sponsorship requirement: item 1130 of Schedule 1 to the Regulations. This means that even if an updated Form 80 (sponsorship) was not given for Mr Ngo, it would not mean that his visa application itself was invalid. The requirement to be sponsored is a Schedule 2 requirement in either cl.143.212 for the primary visa applicant; or cl.143.312 for a secondary visa applicant. While not being sponsored is a reason for a visa being refused, it does not mean that a visa application itself was not properly made.

23. If the parties have divorced, it may be necessary to consider whether they are de facto partners. It is only if Mr Ngo is not a member of Ms Dang’s family unit that his failure to meet PIC 4005 would be irrelevant to Ms Dang’s application.

24. The Tribunal notes that, in this review, the review applicant has submitted various documents in support of the claim that Ms Dang and Mr Ngo have divorced, including the Divorce Order made on 6 April 2018 by The People’s Court of Tieu Can District of Tra Vinh Province (both copies of original documents and English translations). The Tribunal has no reason to question the authenticity of the Court documents that have been provided. The Tribunal finds that Ms Dang and Mr Ngo are no longer married to each other in a marriage that is recognised as valid under the Act for the purposes of s.5F(2)(a). Accordingly, the Tribunal finds that, at the time of this decision, Ms Dang and Mr Ngo have divorced and are no longer spouses.

25. The Tribunal has found it helpful to note the timeline of events.

    13 November 2014 – visa application date

    7 February 2017 – Ms Dang applied for a divorce

    15 February 2017 – Ms Dang requested the withdrawal of her application for a divorce and the Court made an order to discontinue the divorce application

    12 September 2017 – The MOC gives the opinion that Mr Ngo does not meet the health criteria

    31 January 2018 – The delegate made the decision to refuse the application for the visas

    12 March 2018 – Ms Dang applied for a divorce from Mr Ngo with The People’s Court of Tieu Can District of Tra Vinh Province, Vietnam

    22 March 2018 – Minutes of the Court note divorce by mutual consent and successful conciliation

    6 April 2018 – Divorce order made by The People’s Court of Tieu Can District of Tra Vinh Province, Vietnam

    9 April 2018 – Application for merits review lodged at the Tribunal

26. In Ms Dang’s first application for a divorce, the ‘[c]ause of conflict’ was said to be ‘[i]n a married life, a conflict often arises, or quarrels with, temperament does not match’.

27. In her ‘Application for Withdrawing the Petition’, dated 15 February 2017, Ms Dang stated that the reason she was requesting to withdraw the application was because she and her husband had resolved their conflict and reunited.

28. In Ms Dang’s second application for a divorce, the ‘[c]ause of conflict’ was said to be:

    Because my husband did not worry about business to support his family, his wife and children, he could only drink and gamble. I advised my husband many times but he refused to change his temper so I lodged a petition to the Court for a divorce. My petition was accepted by the Court and brought to mediation. At mediation, my husband begged and asked me to forgive and gave him a chance to correct. Because of thinking about my children, I forgave and gave my husband the opportunity to amend, so I voluntarily withdrew my petition, so the Court issued Decision No: [number omitted here] dated on February 15th, 2017 to suspend the resolution of the civil case. However, when we got back to live together for a long time, my husband still kept his mind and didn’t want to change, so I decided to get a second divorce. 

29. The Tribunal also notes Ms Dang’s lengthy statement written in Vietnamese on 26 August 2020, as well as an English translation, outlining the history of her relationship with Mr Ngo—in her words, ‘everything occurring during the unhappy married life with my ex-husband—and the events leading to their divorce. She declared that she lived with her younger daughter in a rented property and that, to her knowledge, Mr Ngo lived with his parents in a different village in the district. She declared, ‘I have severed all contacts with him and I do not need his maintenance for his child either’ and that, ‘I do not want to get involved in any forms of relationship with him anymore’.

30. The review applicant also submitted a detailed statement written in Vietnamese on 18 August 2020, as well as an English translation, outlining her own claimed knowledge of events leading to her parents’ divorce. She submitted some copies of transfers of property interests from Mr Ngo to her to corroborate some of the claims made.

31. The Tribunal has no reason to question the veracity of the claims made in these two statements.

32. There is no evidence before the Tribunal to suggest or evidence that, at the time of this decision, Ms Dang and Mr Ngo are de facto partners, as the term ‘de facto partner’ is defined in s.5CB of the Act. Accordingly, the Tribunal finds that Mr Ngo is not a member of the family unit of Ms Dang.

33. Given the findings above, the appropriate course is for the Tribunal to remit the matter to the Minister for reconsideration of the remaining criteria for the visas.

    DECISION

34. The Tribunal remits the applications for Contributory Parent (Migrant) (Class CA) visas for reconsideration, with the direction that the first and second-named visa applicants meet the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·the second-named visa applicant meets PIC 4005(1)(ab) for the purposes of cl.143.229 and cl.143.324 of Schedule 2 to the Regulations.

    Justine Clarke
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4005(1)         The applicant:

    (aa)if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:

    (i)must undertake any medical assessment specified in the instrument; and

    (ii)must be assessed by the person specified in the instrument;

    unless a Medical Officer of the Commonwealth decides otherwise; and

    (ab)must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and

    (a)is free from tuberculosis; and

    (b)is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and

    (c)is free from a disease or condition in relation to which:

    (i)a person who has it would be likely to:

    (A)require health care or community services; or

    (B)meet the medical criteria for the provision of a community service;

    during the period described in subclause (2); and

    (ii)the provision of the health care or community services would be likely to:

    (A)result in a significant cost to the Australian community in the areas of health care and community services; or

    (B)prejudice the access of an Australian citizen or permanent resident to health care or community services;

    regardless of whether the health care or community services will actually be used in connection with the applicant; and

    (d)if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.

    (2)For subparagraph (1) (c) (i), the period is:

    (a)for an application for a permanent visa — the period commencing when the application is made; or

    (b)for an application for a temporary visa:

    (i)the period for which the Minister intends to grant the visa; or

    (ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.

    (3)If:

    (a)the applicant applies for a temporary visa; and

    (b)the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (2) (b) (ii);

    the reference in sub-subparagraph (1) (c) (ii) (A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.