Xu (Migration)

This matter concerned an application for a Contributory Parent (Migrant) (Class CA) visa, Subclass 143, made by Huiding Xu. The dispute arose because the applicant's non-migrating spouse, Ms. Zhizhen Xu, did not meet the mandatory health requirements under Public Interest Criterion 4005 of the Migration Regulations. The applicant and Ms. Xu had since divorced, and the applicant's representatives argued that the proceedings had been delayed by COVID-19 restrictions. The Administrative Appeals Tribunal was required to determine whether Ms. Xu should be considered a member of the applicant's family unit for the purposes of the visa application, and consequently, whether she was required to meet PIC 4005.

The Tribunal considered the definition of "member of the family unit" under Regulation 1.03, which, for applications lodged before 19 November 2016, referred to a spouse or de facto partner. Clauses 143.229 and 143.230 of the Migration Regulations stipulate that each member of the family unit must satisfy PIC 4005, irrespective of whether they are a visa applicant. While a waiver for health checks for a non-migrating family member might be considered unreasonable, Ms. Xu had already failed two health checks, making such a waiver unlikely. The Tribunal noted that if Ms. Xu remained a member of the applicant's family unit, her failure to meet PIC 4005 would prevent the applicant from satisfying the visa criteria. The central question was whether, post-divorce, Ms. Xu was still a member of the applicant's family unit, making her health status relevant.

Given the circumstances, particularly the divorce and the applicant's submission that they were applying for Huiding Xu as a sole applicant, the Tribunal determined that the matter should be remitted to the Minister for reconsideration. The Tribunal directed that the visa applicant met specific criteria, namely clauses 143.221, 143.223, and 143.225 of Schedule 2 to the Migration Regulations, implying that the primary issue of Ms. Xu's status as a family member and her compliance with health requirements needed further assessment by the Minister.