Nguyen (Migration)

[2017] AATA 2549

Nguyen (Migration) [2017] AATA 2549 (28 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Kim Hoang Nguyen

VISA APPLICANT:  Ms Thi Nhan Tran

CASE NUMBER:  1619897

DIBP REFERENCE(S):  2013/088837

MEMBER:Meena Sripathy

DATE:28 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Contributory Parent (Temporary) (Class UT) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 173 (Contributory Parent (Temporary)) visa:

· cl.173.227(b) of Schedule 2 to the Regulations.

Statement made on 28 July 2017 at 5:00pm

CATCHWORDS
Migration – Contributory Parent (Temporary) (Class TU) visa – Subclass 173 (Contributory Parent (Temporary)) – Not a member of the visa applicant’s family unit

LEGISLATION
Migration Act 1958, ss 65, 360 (2)(a)
Migration Regulations 1994, rr 1.03, 1.05A, 1.12, Schedule 2, cl 173.227, Schedule 4, PIC4005

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 21 November 2016 to refuse to grant the visa applicant a Contributory Parent (Temporary) (Class UT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 December 2013. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.173.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the health criteria in Public Interest Criterion (‘PIC’) 4005 of Schedule 4 to the Regulations was not met.

3. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets cl.173.227 which requires each member of the family unit of the applicant who is not an applicant for a Subclass 173 visa to satisfy Public Interest Criterion (PIC) 4005 among other PICs, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment of for that criterion.

6. Public Interest Criterion 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

7. In the application for the visa, the visa applicant provided details of her non migrating partner, Van Cua Nguyen and the following dependent children over the age of 18 years: Thanh Trung Nguyen, born 11 July 1980 and Hoang Thien Nguyen, born 19 November 1984, both indicated not to be migrating with her.  A Form 47A was completed in respect of each of these children.

8. On 2 October 2015 the visa applicant and her three non-migrating family members were requested to under health assessments in relation to the application.  On 28 October 2015 information was provided to the department indicating the visa applicant met health requirements but the three non-migrating family members had not undergone medical assessment and no outcome was received. 

9. A natural justice letter was sent to the visa applicant on 27 July 2016 inviting comment on this issue prior to a final decision being made on the application. No response was received and the application was refused on 21 November 2016 on the basis of failure to satisfy cl.173.227.

10. The sponsor (review applicant) applied for review of the decision to the Tribunal on 24 November 2016. 

11. On 15 June 2017 an officer of the Tribunal made enquiries with the Department as to whether evidence of completion of the medical assessment had been made by the non migrating family members of the visa applicant and any outcomes of the assessment.

12. On 16 June 2017 the Department provided to the Tribunal evidence of the following health outcomes in respect of :

    ·the visa applicant dated 20 October 2015 indicating  she met the health requirement for a permanent stay in Australia;

    ·Nguyen, Van Cua (her husband) dated 23 December 2016 indicating  he met the health requirement for a permanent stay in Australia;

    ·Nguyen Hoang Thien (her son, DOB 19/11/1984) dated 23 December 2016 indicating he met the health requirement for a permanent stay in Australia;

    ·Nguyen Thanh Trung (her son, DOB 11/7/1980) dated 24 January 2017 indicating he does not meet PIC 4005(1)(c)(ii)(A).

13. On 21 June 2017 the Tribunal wrote to the review applicant to invite comment on the opinion of the medical Officer of the Commonwealth which indicated that Nguyen Thanh Trung did not meet the health requirement.  A copy of the opinion was provided. The review applicant was advised that the information was relevant because if the Tribunal relied on this information it would, subject to her comments or response, rely on this information to find that the visa applicant does not satisfy cl. 173.227 and it would affirm the decision under review.   The review applicant was also invited to provide information or submissions and evidence addressing the issue of whether Nguyen Thanh Trung is a member of the visa applicant’s family unit. 

14. On 4 and 5 July 2017 the Tribunal received submissions and supporting evidence from the review applicant’s representative. The representative stated that Nguyen Thanh Trung is not a member of the visa applicant’s family unit as he is not dependent on her. It was submitted that he was 33 years of age at the time of application and is now 37 years of age.  He is working.  Evidence of his curriculum vitae, work reference and business registration for his employer was provided in support.  It was submitted he intends to withdraw from the application.  In a subsequent submission on 5 July 2017 the representative stated that he was not included in the contributory parent application and therefore there is no need for him to withdraw from the application.  As he is not a dependent of the visa applicant he is not required to meet the requirements of PIC 4005. 

    Is each member of the family unit of the applicant who is not an applicant for a Subclass 173 visa meet the requirements of the health criteria?

15. Evidence is now before the Tribunal of a favourable MOC opinion in respect of the visa applicant’s husband and son, Nguyen Hoang Thien indicating that they meet the health requirement for a permanent stay in Australia.

16. In respect of the visa applicant’s son, Nguyen Thanh Trung, a MOC opinion was provided  indicating he did not meet the health requirement.  The review applicant has responded to an invitation to comment on this information by advising that Nguyen Thanh Trung is not a dependent child of the visa applicant and therefore does not need to meet PIC 4005.

17. In support of this claim it was submitted that Nguyen Thanh Trung is 37 years of age and  working.  Evidence of an employment certificate indicating he is working since October 2014 to date at Hoa Sen Trading Service and Advertising Co Ltd as a sales employee and evidence of the certificate of business registration of the company was provided in support. 

18. The Tribunal accepts that the visa applicant did not include in her application her husband and two sons as migrating with her.  She did however, at time of application, provide details of both sons as dependent family members and completed form 47A in respect of each of them, indicating they were at that time studying and financially dependent on her. 

19. The Tribunal notes that cl.173.227 is a criteria to be satisfied at time of decision.

20. Member of the family unit is defined in r.1.12 of the Regulations, and includes dependent child of the family head. ‘Dependent child’ is further defined in r.1.03 of the Regulations, in respect of a child over 18, to be ‘dependent’ (within the meaning of that term in r. 1.05A, referring to wholly or substantial financial reliance for food, clothing and shelter) on that person or incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. Extracts of these definitions are provided in the attachment to this decision.

21. Having regard to the above definitions, Nguyen Thanh Trung’s age (37) and evidence of employment and taking into consideration the medical condition identified in the MOC opinion (which does not preclude his participation in employment), the Tribunal accepts the applicant’s claim that Nguyen Thanh Trung is not a member of the visa applicant’s family unit at time of decision on the basis that he is over the age of 18 and working.  He does not therefore have to meet the health requirement for the purposes of the visa applicant’s satisfaction of the criteria in cl. 173.227.

22. Therefore, on the evidence of the MOC opinions in respect of the visa applicant’s husband and son, Nguyen Hoang Thien, and the above finding that Nguyen Thanh Trung is not a member of her family unit, the Tribunal is satisfied that each member of the visa applicant’s family unit who is not an applicant for the Subclass 173 visa satisfies PIC 4005 for the purposes of cl.173.227 and accordingly the visa applicant meets cl. 173.227(b).

23. 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 visa.

    DECISION

24. The Tribunal remits the application for a Contributory Parent (Temporary) (Class UT) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 173 (Contributory Parent (Temporary)) visa:

    ·cl.173.227(b) of Schedule 2 to the Regulations.

    Meena Sripathy
    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.

    Reg 1.12 Member of the family unit

    1.12    (1)    For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a)    a spouse or de facto partner of the family head; or

    (b)    a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c)    a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    [(d) omitted by SR 2004, 390 with effect from 02/04/2005 - LEGEND note]

    (e)    a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)    does not have a spouse or de facto partner; and

    (ii)    is usually resident in the family head's household; and

    (iii)    is dependent on the family head.

    Reg.1.03 dependent

    has the meaning given by regulation 1.05A.

    dependent child,

    of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)    has not turned 18; or

    (b)    has turned 18 and:

    (i)    is dependent on that person; or

    (ii)    is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    Reg 1.05A Dependent

    1.05A      (1)      Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)      at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)      the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)      the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.