Htay (Migration)

[2023] AATA 519

Htay (Migration) [2023] AATA 519 (22 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lwin Aung Htay

REPRESENTATIVE:  Ms Jasmin Angel

CASE NUMBER:  2010913

HOME AFFAIRS REFERENCE(S):          CLF2018/177300

MEMBER:Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:         22 February 2023 at 12:36 pm (WA time)

DATE OF WRITTEN RECORD:                9 March 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets cl. 836.221 of Schedule 2 to the regulation.

Statement made on 09 March 2023 at 12:37pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care could be provided by relatives and services in Australia – attempts to obtain out of hours care – CVAC assessment – family members’ circumstances – decision under review remitted 

LEGISLATION

Migration Act 1958
Migration Regulations 1994, Schedule 2, cl 836.221; rr 1.03, 1.15

CASES

Zhang v MICMA [2004]

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 June 2020 to refuse to grant the visa applicant a Other Family (Residence) (Class BU) Subclass 836 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 22 February 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The visa applicant applied for the visa on 4 July 2018 and the criteria for the subclass 836 visa are set out in part 836 of Schedule 2 to the Regulations and relevantly for this matter, the primary criteria to be met must include clause 836.221.

4. The delegate refused to grant the visa on the basis that clause 836.221 was not met because they were not satisfied that the visa applicant was a relative of the Australian citizen requiring care and also that the required support could not be provided by approved aged care providers in conjunction with assistance from other family members.

5. The review applicant, Mr Lwin Aung Htay, being the visa applicant himself and the son of the Australian citizen requiring care, appeared before the Tribunal today on 22 February 2023 to give evidence and present arguments and the review applicant was represented by Ms Jasmin Angel of Estrin Saul, the review applicant's mother being the Australian citizen requiring care also attended the Tribunal hearing.  However, the Tribunal did not require evidence from her in order to reach a decision on the matter.

6. The Tribunal found the review applicant to be a credible witness and places weight on his evidence.  The Tribunal was conducted in person with the assistance of an accredited interpreter in Burmese and English languages.

7. For the following reasons the Tribunal has concluded that the matter under review should be remitted for reconsideration.  The first issue at the present case is whether the visa applicant is a resident of the Australian citizen requiring care.  The delegate refused the visa as they were not satisfied that this was the case.  No birth certificate was submitted with the visa application and on 11 May 2020, prior to the delegate's decision being made, a request was sent by the department for Mr Htay to provide a birth certificate and he informed the department that he did not have one and it was not available.

8. However, the Tribunal received a certified and accredited parentage DNA test result report by Identilab Parentage Kinship ID dated 30 January 2023 which the Tribunal places significant weight on.

9. This report indicated that the visa applicant is 8.7 million times more likely to be a child of the Australian citizen than any unrelated woman drawn randomly from the Southeast Asian population which results in a relative chance of maternity of 99.99998862 per cent.  As such, the Tribunal is more than satisfied that the applicant is the child of the Australian citizen.

10. The second issue of this matter is the question of whether the care required by the Australian citizen can be provided by other family members or care providers either individually or combined in order to satisfy her requirements.

11. By background, the review applicant applied for the visa to care for his mother, who is now aged 87 and is an Australian citizen residing at the family home in Perth, Australia. 

12. Now, it is not disputed that the Australian citizen requires a significant amount of care and the Tribunal has been provided with an updated carer visa assessment rating indicating an impairment rating of 35 and accepts that if it was refreshed again today, that number would somewhat increase. 

13. The Tribunal was also in receipt of significantly more evidence than what was available to the delegate at the time of the original decision.  This includes statements from family members outlining the composition of the extended family and reasons why they are unable to provide care.

14. Additionally documented evidence of attempts to obtain out of hours care for the Australian citizen was also submitted to the Tribunal and the Tribunal notes that a trial of a nursing home facility was undertaken, and it was found most unsuitable.

15. The Tribunal examined the submitted evidence regarding the availability of each qualifying family member to provide the care and as such, makes the following findings.

16. Essentially Ms Lwin had three children, the visa applicant, Mr Htay, now aged 62, another son that is deceased and a daughter that remains in Burma.  She also has seven nieces and nephews that are either practically estranged or unable to provide the required care and due to the nature of the relationship, their unavailability to provide care as well as the short notice that is required to obtain the care, the Tribunal accepts that it is not reasonable to expect that these nieces or nephews are either able to contribute to the care required of the Australian citizen, Ms Lwin. The crux then of this issue essentially revolves around the type and timing of the care required.

17. So the Tribunal accepts the evidence that Ms Lwin requires live in care and sometimes that is to be provided at short notice at any time, 24 hours a day, seven days a week.

18. Additional medical certificates were provided to the Tribunal.  In particular, one issue by Dr Mary Cameron, who had been treating the Australian citizen for some time that thoroughly supports the requirement for full-time live-in care and outline the significant challenges that Ms Lwin would face if placed again in an aged care nursing facility.

19. The visa applicant, Mr Htay, has predominantly resided in Australia for some five years, first arriving on a tourist visa and returning home before that visa expired, prior to returning back to Australia.  In those five years he has lived and cared for his mother.  The Tribunal accepts that the applicant therefore provides the majority of the on call 24 hour a day, seven day a week care with the assistance of up to 10.5 hours a week from a service provider.

20. The Tribunal also considered whether the applicant is, in fact, the carer, as I have touched on.  Mr Htay currently provides that 24-hour support to his mother that is required and that includes cooking and taking her by taxi to medical appointments for care, shopping and day to day hygiene.

21. It is accepted by the Tribunal that without live in care Ms Lwin would face significant mental and physical health challenges and at the time of this decision, the Tribunal finds that Mr Htay is the full-time carer of his mother.

22. Regulation 1.15AA(1)(a) requires that the applicant is a relative of the resident who is an Australian relative requiring care.  In the present case the Australian relative is identified as the visa applicant's mother and therefore the visa applicant is the son of the Australian relative, and the visa applicant is the relative therefore of the resident within the meaning of Regulation 1.03 and meets the requirements of Regulation 1.15AA(1)(a).

23. Regulation 1.15AA(1)(b) requires that a certificate which meets the requirements of Regulation 1.15AA(2) states that:

    The Australian relative of the resident or a member of the family nit has a medical condition, that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life.

24. That impairment has a rating that is specific in  the certificate and  that because of the condition the person has will continue for at least two years to have a need for direct assistance in attending to the practical aspects of daily life, for a certificate to meet Regulation 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister or issued by a specific health provider in relation to a review of such an opinion and the Tribunal has received a current CVAC assessment indicating an impairment rating of 35.

25. Additionally,  the CVAC indicates the assessor is satisfied that because of the medical condition the person has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life and therefore the Tribunal finds that the certificate provided meets the requirements of Regulation 1.15AA(2) and further, the certificate addresses each of the matters mentioned in Regulation 1.15AA(1)(e)(i) through to (iv). 

26. Accordingly, the requirements of Regulation 1.15AA(1)(b) are met.

27. The residency status of the person with the medical condition is set out in the Regulation 1.15AA(1)(b)(a) and it requires that the person who has the medical condition is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.  In the present case the person requiring the medical condition is an Australian citizen and the Tribunal has an Australian citizen certificate to verify that and therefore the requirements of Regulation 1.15AA(1)(b)(a) are met.

28. I have touched on the impairment rating as required by Regulation 1.15AA(1)(c) and in the present case that impairment rating exceeds the minimum required rating and therefore the requirements of Regulation 1.15AA(1)(c) are met.

29. With regards to Regulation 1.15AA(1)(d), as the resident is an Australian citizen, 1.15AA(1)(d) does not apply.

30. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by any other relative of the Australian citizen in this case or be obtained by welfare hospital nursing or community services within Australia.  The Tribunal, having examined the circumstances of each qualifying family member and with consideration to the care requirements of the Australian citizen, additionally noting that they have endeavoured to try nursing care previously, the Tribunal is satisfied that the assistance cannot reasonably be provided by a relative or service provider.

31. Also, given the language and cultural challenges Ms Lwin faces in obtaining care and with consideration of all the evidence before the Tribunal, the Tribunal finds the requirements of Regulation 1.15AA(1)(e) are met.

32. Regulation 1.15AA(1)(f) requires consideration if the visa applicant is willing and able to provide the Australian relative, in this case his mother, substantial and continuing assistance of the kind needed.

33. In this context it should be noted that willingness is concerned with the visa applicant's state of mind and in contrast the issue of ability is an objective enquiry as to whether the visa applicant is a person who is suited or fit to provide the assistance to his mother as outlined in Zhang v MICMA [2004].  The Tribunal finds that the visa applicant who is currently in Australia and has been for some five years, living with his mother, is willing and able and has been providing the significant care required to the Australian relative and continues to do so of the kind  needed and therefore meets the requirements of Regulation 1.15AA(1)(f).

34. In conclusion, given the findings, the Tribunal is satisfied that at the time of the decision the visa applicant is the carer of the Australian relative, being his mother, and therefore satisfies cl. 836.221.  For the reasons above, the vis applicant meets the criteria for Subclass 836 visa.

35. In respect of other visa sub-classes, there is no material which would permit a finding that the applicant meets prescribed criteria for any other visa sought and therefore the Tribunal did not consider any other criteria for any other sub‑class visa.

36. Given the findings, the applicant meets 836.221, the appropriate course of action is to remit the application for the visa to the Minister to consider any remaining criteria for a sub-class 835 visa.  Therefore, the decision is that the Tribunal remits the application for the sub-class 836 visa with the direction that the applicant meets the following criteria, clause 836.221 of Schedule 2 to the Regulations.

    DECISION

37. The Tribunal remits the decision under review with the direction that the applicant meets cl. 836.221.

    Joseph Francis
    Member