Ngo (Migration)

This matter concerned an application for a Contributory Parent (Migrant) (Class CA) visa, Subclass 143. The primary issue before the Tribunal was whether the visa applicants met the health criteria, specifically Public Interest Criterion (PIC) 4005, as required for the grant of the visa. The Tribunal considered the health status of both applicants, Anh and Mr Ngo, and whether Mr Ngo was a member of the family unit for the purposes of the visa application.

The legal issues before the Tribunal were: (1) whether Anh met PIC 4005; (2) whether Mr Ngo was a member of the family unit of Anh, and if so, whether he also met PIC 4005; and (3) the implications of Mr Ngo's failure to meet PIC 4005 on Anh's application, particularly in light of a Divorce Order and the completion of Form 40. The Tribunal also considered whether the failure to complete an updated Form 40 to include Mr Ngo's sponsorship rendered his visa application invalid.

The Tribunal reasoned that while Anh met PIC 4005, Mr Ngo, as a member of the family unit, also needed to satisfy this criterion. The Tribunal noted that the definition of "member of the family unit" under the Migration Regulations 1994, as it applied at the time of application, included a spouse. It was determined that Mr Ngo had previously undertaken and failed a health check, meaning it was not unreasonable to require him to undertake another. The Tribunal found that the failure to meet PIC 4005 by Mr Ngo would be relevant to Anh's application, regardless of whether Mr Ngo was a visa applicant himself. The Tribunal also clarified that the sponsorship requirement for a Subclass 143 visa is a Schedule 2 criterion, not a Schedule 1 requirement, and therefore, the absence of an updated Form 40 did not invalidate the application itself. The Tribunal concluded that if Mr Ngo was no longer a member of Anh's family unit due to divorce, his failure to meet PIC 4005 would be irrelevant to Anh's application.

Given these considerations, the Tribunal remitted the applications for reconsideration. The direction was that the first and second-named visa applicants must meet the specified criteria for a Subclass 143 visa, with a particular focus on the second-named applicant meeting PIC 4005(1)(ab) for the purposes of clauses 143.229 and 143.324 of Schedule 2 to the Regulations.