Htay (Migration)

This matter concerned an appeal by Mr Lwin Aung Htay against a decision to refuse his application for an Other Family (Residence) (Class BU) visa, subclass 836 (Carer). The visa applicant sought to care for his mother, an Australian citizen residing in Perth. The delegate had refused the visa on two grounds: firstly, that the applicant was not satisfied as being a relative of the Australian citizen requiring care, and secondly, that the required support could not be provided by approved aged care providers in conjunction with assistance from other family members. The Administrative Appeals Tribunal conducted an in-person hearing with the assistance of an interpreter.

The Tribunal was required to determine two primary issues. The first was whether the visa applicant was indeed the son of the Australian citizen requiring care. The second issue was whether the care needs of the Australian citizen could be met by other family members or approved care providers, either individually or in combination.

In relation to the first issue, the Tribunal found the visa applicant to be a credible witness and placed significant weight on his evidence. While no birth certificate was initially provided, the Tribunal received and gave considerable weight to a certified parentage DNA test report. This report indicated a very high probability that the visa applicant was the child of the Australian citizen, satisfying the requirement that the applicant be a relative. Regarding the second issue, the Tribunal noted the applicant's mother was 87 years old and resided at the family home. The Tribunal ultimately concluded that the matter should be remitted for reconsideration, implying that the delegate's assessment of the care provision aspect may have been insufficient or required further examination.