Xu (Migration)

[2023] AATA 4409

Xu (Migration) [2023] AATA 4409 (20 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Minrui Xu

VISA APPLICANT:  Mr Huiding Xu

REPRESENTATIVE:  Ms Mengni Deng (MARN: 1687956)

CASE NUMBER:  2014667

HOME AFFAIRS REFERENCE(S):          BCC2015/3187518

MEMBER:Stephen Conwell

DATE:20 December 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

·Clause 143.221 of Schedule 2 to the Migration Regulations.

·Clause 143.223 of Schedule 2 to the Migration Regulations.

·Clause 143.225 of Schedule 2 to the Migration Regulations.

Statement made on 20 December 2023 at 11:26am

CATCHWORDS
MIGRATION – Contributory Parent (Migrant) (Class CA) visa – Subclass 143 (Contributory Parent) – non-migrating spouse did not meet mandatory health requirements – applicant and spouse now divorced – proceedings delayed by COVID restrictions – divorce certificate provided – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5F(2)(a), 5CB, 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.03, 1.12(1)(a), (6), Schedule 2, cls 143.221, 143.223, 143.225, 143.229, 143.230, Schedule 4, criterion 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 Home Affairs on 23 September 2020 to refuse to grant the visa applicant a Contributory Parent (Migrant) (Class CA) Subclass 143 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (the applicant) applied for the visa on 28 October 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.143.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) as his wife (the non-migrating spouse) did not meet mandatory health requirements and thus failed Public Interest Criteria (PIC) 4005.  Pursuant to the ‘one fails, all fails” criteria in reg. 1.12(6) if one partner does not meet the requirements of PIC 4005 then both fail to meet criteria relevant to the grant of the visa.

3. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

4. The applicant was represented in relation to the review by his registered migration agent (representative).

5. Having reviewed the material before it, the Tribunal formed the view that a hearing was not necessary as it was able to find in favour of the applicant, pursuant to s.360(2)(a) of the Act.

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

   Background

7. The evidence shows that the applicant is the father of the review applicant (the sponsor). The Tribunal is satisfied, based on the evidence before it, that, at the time she applied for the Subclass 143 visa, the applicant did not hold a Subclass 173 (Contributory Parent (Temporary)) visa or a substituted Subclass 600 visa.

8. When the parent  (Subclass 143) visa application was lodged on 28 October 2015, Ms XU Zhizhen (the applicant’s wife, hereafter referred to as Ms XU) was included as a non-migrating spouse.

9. The decision record notes the delegate’s finding that as Ms XU (the non-migrating spouse) did not meet mandatory health requirements to satisfy PIC 4005, the applicant therefore did not satisfy cl.143.225 of Schedule 2 to the Regulations. Whilst the delegate makes no mention of cl. 143.229[1] of Schedule 2 to the Regulations the Tribunal notes that it requires that each member of the family unit of the person seeking to satisfy the primary criteria must meet PIC 4005, amongst other Public Interest Criteria.[2]  Cl.143.230 is a similar provision which applies where the member of the family unit is not migrating. 

   1    Cl.143.229 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.

   2    Public 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 applicant has applied for a permanent visa, the exclusion provision in PIC 4005(3) does not apply.

10. On 11 November 2019, the Department requested that the applicant and Ms XU provide the results of their medical examinations as part of the documentation required for the processing of the visa application. The medical results pertaining to Ms XU showed that she did not meet mandatory health requirements to satisfy PIC 4005.

11. In response to the Department’s ‘natural justice’ letter sent on 8 January 2020, the Department received on 22 January 2020, further medical reports of Ms XU, as well as the following email from the previous migration agent, which stated:

    Dear Sir

    We refer to the natural justice letter received today.

    We accept and acknowledge the unfavourable medical result for Zhizhen Xu. If her health does prevent her from coming to Australia, we would not allow Zhizhen Xu to come to Australia as well.

    We are applying for Huiding Xu only as a sole applicant. Whether Zhizhen Xu can come to Australia at a later stage would also need to be approved by the Australian Government.

    Therefore we sincerely ask Huiding Xu's parent visa application be approved.

    Regards ….

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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. The issue in this case is whether Ms XU (the applicant’s non-migrating spouse) should be considered a member of the applicant’s family unit and therefore be expected to meet PIC 4005 criteria for the grant of the visa.

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

    Is Ms XU Zhizhen is a member of the family unit?

14. 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 visa application was 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 sub-regulation) 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.

15. Pursuant to cl.143.229 and cl.143.230 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.

16. 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, Ms XU has already undertaken (and failed) two health checks thus it could no longer be said that requiring her to undertake a health check would be unreasonable. As long as Ms XU is a member of the applicant’s family unit, she will need to satisfy PIC 4005. If she does not satisfy PIC 4005, the applicant does not appear to meet cl.143.229 (if Ms XU is migrating) or cl.143.230 (if Ms XU is not migrating). 

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

18. The Tribunal notes that in this review, the sponsor has submitted various documents in support of the claim that the applicant and Ms XU have divorced, including the Divorce Certificate made on 4 March 2020 by the Shanghai Xuhui District Civil Affairs Bureau (original document and English translation). The Tribunal has no reason to question the authenticity of the Divorce Certificate. The Tribunal finds that the applicant and Ms XU 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, the applicant and Ms XU have divorced and are no longer spouses.

19. The Tribunal notes the following timeline of events:

    ·      28 October 2015 – visa application date. Mr Xu submitted his visa application as the sole applicant in 2015, since his marriage to Ms XU was beginning to experience marital issues at that time;

    ·      In 2018, Mr Huiding Xu and Ms XU began living separately and commenced divorce proceedings. However, Ms XU was diagnosed with kidney disease and hospitalised. At the end of 2019, China began to impose a strict lockdown policy in China during the COVID pandemic which affected the civil service and the processing of divorce applications. Consequently, the processing of the divorce application was delayed.

    ·      Mr Xu finalised the divorce papers in January 2020 and immediately informed the Department. He received the the Divorce Certificate in March 2020 and forwarded it to the Department.

20. The Tribunal must also consider whether the applicant and Ms XU are, at the time of this decision, de facto partners, as defined in s.5CB of the Act. It has regard to the representative’s written submission dated 6 November 2023 which states they have been living separately since 2018. The applicant owns and lives in a property in South Road, Xuhui District, Shanghai.  Ms Xu moved to the sponsor's house in Guanshengyuan Road, Xuhul District, Shanghai and lives there with her sister.

21. Since the divorce, both parties manage their personal bank accounts and daily expenses independently. Their relationship ceased to exist some years ago, with family and friends acknowledging their divorce and no longer considering them as a couple.  A statement dated 1 November 2023 by Ms XU’s sister (original document and English translation), supports this claim,

    I, Zhishan Xu, have been residing with my divorced sister, Zhizhen Xu, in mutual companionship for many years at [redacted], Guanshengyuan Road, Xuhui District, Shanghai, with the intention of eventually relocating to a private retirement facility at an appropriate time.

    My sister, Zhizhen Xu, and her ex-husband had long-standing emotional discord. After moving to Australia in 2012, my nephew finally bought his father with him, allowing us to return to a peaceful life. Following an extended period of time, they finally completed all the necessary legal documentation and property settlement for their divorce in the year 2020. Yours sincerely. …

22. The Tribunal also has regard to an undated statement by the applicant (original document and English translation), confirming that he and Ms XU separated in 2018 and began living separate lives from then, although the formal divorce certificate was not issued until March 2020. He states that he has not remarried.

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

24. There is no evidence before the Tribunal to suggest that, at the time of this decision, the applicant and Ms XU are de facto partners, as defined in s.5CB of the Act. Accordingly, the Tribunal finds that Ms XU is not a member of the family unit of the applicant.

25. 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

26. The Tribunal remits the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 143 (Contributory Parent) visa:

    ·Clause 143.221 of Schedule 2 to the Migration Regulations

    ·Clause 143.223 of Schedule 2 to the Migration Regulations

    ·Clause 143.225 of Schedule 2 to the Migration Regulations

    Stephen Conwell
    Member