Naing (Migration)

[2023] AATA 3648

Naing (Migration) [2023] AATA 3648 (29 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mi Myat Myat Naing

REPRESENTATIVE:  Mr Craig Dengate (Kah Lawyers)

CASE NUMBER:  2017926

HOME AFFAIRS REFERENCE(S):          CLF2016/39381

MEMBER:Jane Marquard

DATE:29 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

Cl 836.212, cl 836.213, cl 836.221 and 836.227 of Schedule 2 to the Regulations.

Statement made on 29 September 2023 at 9:02am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – two sponsors have passed away – carer of a different caree – assistance could not reasonably be provided by relatives in Australia – welfare, hospital, nursing or community services in Australia – Mon cultural heritage – substantial and continuing assistance – decision under review remitted

LEGISLATION

Acts Interpretation Act 1901, s 15AA
Migration Act 1958, ss 4, 5, 65
Migration Regulations 1994, Schedule 2, cls 836.111, 836.211 – 836.213, 836.221, 836.227; rr 1.03, 1.15

CASES

Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Lin v MIMIA [2004] FCA 606; 136 FCR 556
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 25 November 2020 to refuse to grant the applicant, Ms Myat Myat Naing, an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, Ms Myat Myat Naing, is referred to in this decision as Ms Myat, as this is the way she is described by her representative.

   BACKGROUND TO THE REVIEW

2. Ms Myat is a citizen of Myanmar and arrived in Australia as the holder of a Visitor (Subclass 600) visa on 2 May 2016. She is aged 53 and unmarried with no children. She lives with her sister, her brother-in-law and their three children aged 17, 12 and 10.

3. Ms Myat applied to the Department of Home Affairs (the Department) for the visa the subject of this review on 29 June 2016.

4. On 28 June 2016 a delegate of the Department refused to grant the visa on the basis that cl 836.211 of Schedule 2 was not met, stating that the applicant did not meet Regulation 1.15AA (1)(d) and therefore did not meet cl 836.211. The applicant applied for review at the Administrative Appeals Tribunal (the Tribunal). On 22 October 2019 the Tribunal, differently constituted, remitted the decision to the Department, with the direction that the applicant met cl 836.211 and 836.221 of Schedule 2 to the Regulations and that she met reg 1.15AA.

5. A delegate of the Department again refused the visa application on 25 November 2020, on the basis that the person stated to require care in the application (the caree) had passed away, and in the Department’s view, the applicant could not claim to be the carer of a different caree. The applicant had applied in her visa application for a carer visa to provide care to her uncle Be Than, also the uncle of the sponsor, Ms Mi Thin Thin Naing (who is the applicant’s sister). The sponsor, Ms Mi Thin Thin Naing is referred to in this decision as Ms Thin, as this is the way she is described by her representative.

6. In November 2020 Ms Myat advised the Department that her uncle Be Than had passed away in June 2020. Ms Myat claimed that she wished to care for her sister, Ms Thin.

7. The matter is now before the Tribunal for review.

   RELEVANT LAW

8. At the time of application, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 (Carer) visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations.

9. Clause 836.212 of Schedule 2 to the Regulations provides that at the time of application:

   ‘The applicant claims to be the carer of an Australian relative’.

10. Clause 836.221 of Schedule 2 to the Regulations, which provides that at the time of decision:

    ‘the applicant is a carer of a person referred to in clause 836.212.’

11. A key issue in this case is whether the person whom the applicant is caring for at the time of decision must be the Australian relative the applicant claimed to care for at the time of application. That is, can the applicant be carer of Ms Thin, rather than Be Than (who has now passed away).

    DECISION OF DEPARTMENT 25 NOVEMBER 2020

12. On 25 November 2020 the application was refused by the Department on the basis that the applicant did not meet cl. 836.227 of Schedule 2 to the Regulations. Clause 836.227 provides that at the time of decision:

    ‘The sponsorship mentioned in clause 836.213 has been approved by the Minister and is still in force.’

13. Clause 836.213 provides that at the time of application the applicant is sponsored by the Australia relative, who is (amongst other factors) an Australian citizen or permanent resident and usually resident in Australia.

14. The delegate was satisfied that the applicant met cl 836.213 at the time of application. However the delegate was not satisfied that the applicant met Reg 1.15AA (1)(d) and therefore did not meet cl 836.213 of the Regulations.

15. Regulation 1.15AA is set out in the attachment to this decision. Regulation 1.15AA (1)(d) provides that:

    ‘if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv).’

    EVIDENCE TO THE TRIBUNAL

16. The applicant provided written submissions and evidence to the Tribunal and appeared before the Tribunal on 21 August 2023 to give evidence and present arguments. The applicant was represented, and her representative, Craig Dengate of Kah Lawyers, was present at the Tribunal hearing.

17. The following documents were provided to the Tribunal:

    ·     Statements of:

    §Mi Thin Thin Naing dated 10 August 2023.

    §Mi Myat Myat Naing dated 10 August 2023.

    §Nai Aie Oatsomm dated 10 August 2023 including supporting documentation.

    §Mi Sein Yin dated 10 August 2023 including supporting documentation.

    §Nai Nyan Layeh dated 10 August 2023 including supporting documentation.

    §Banyar Naing Shwe Paing dated 11 August 2023 including supporting documentation.

    ·     BUPA medical assessments dated 18 December 2020 and 17 August 2023.

    ·     Medical report from Dr Christine Tan dated 3 August 2023.

    ·     Medical letter from Dr Christine Tan dated 20 February 2023.

    ·     Medical letter from Dr Raymond Tint Way dated 28 February 2023.

    ·     Medical letter from Dr Christine Tan dated 7 January 2023.

    ·     Medical report from Dr Zareena Anantharaman dated 22 December 2021.

    ·     Medical report from Dr Geoffrey Needham dated 30 October 2020.

    ·     Medical report from Dr Christine Tan dated 24 May 2023.

    ·     Report from physiotherapist Mr Rajeev Prasad dated 2 March 2023.

    ·     Medical report from Dr Geroge Hardas dated 27 October 2020.

    ·     Medical report from Dr George Hardas dated 21 January 2020.

    ·     Medical report from Dr Vaitlin Kapoor dated 2 May 2019.

    ·     Radiologist report for Dr Christine Tan dated 10 July 2020.

    ·     Medication summary dated 17 February 2023.

    ·     Medical report from Dr Raymond Tint Way dated 12 July 2022.

    ·     Ms Thin's BUPA assessment request dated 1 August 2023 including supporting medical evidence.

    ·     936 Post-Queue Carer Assessment dated 27 October 2020.

    ·     Michael (Migration) [2019] AATA 3003 (6 June 2019).

    ·     Post-hearing submissions.

    FINDINGS OF THIS TRIBUNAL

    Whether the caree must be the same person at the time of application and time of decision

18. Clause 836.212, which is a time of application criteria, provides that ‘the applicant claims to be the carer of an Australian relative’.

19. The visa applicant, Ms Myat, applied for a carer visa to provide care to her uncle Be Than, who is also the uncle of the sponsor, Ms Thin. At the time of application, Ms Myat claimed to be the carer of an Australian relative, Mr Than.

20. Clause 836.221 requires that at the time of decision, ‘the applicant is a carer of a person referred to in Clause 836.212.’

21. In order to meet clause 836.221, Ms Myat who is the applicant must be the carer of a person referred to in clause 836.212. Ms Myat at the time of decision claims that she is the carer of Ms Thin. The questions for consideration is therefore whether Ms Thin is a person referred to in Clause 836.212 and whether clause 836.221 refers to the actual person claimed by the applicant to be the caree at the time of application, or any Australian relative.

    Submissions of the representative about the caree

22. The applicant’s representative acknowledged that ‘the applicant’ referenced in cl 836.211 and cl 836.221 refers to Ms Myat. He submitted that the words ‘a person’ in cl 836.221 refers to a person mentioned in cl 836.212 to whom the applicant is a carer. It was submitted that the use of the words ‘an Australian relative’ in context and on plain reading refers to an Australian relative of Ms Myat and it follows that ‘a person’ mentioned in cl 836.212 is ‘an Australian relative’ of Ms Myat.

23. The applicant’s representative submitted therefore that:

    We note cl 836.221 does not refer to ‘the person’ or ‘persons’ referred to in cl 836.212. For example, had the provision stated "the applicant is a carer of the person or persons referred to in clause 836.212", and cl 836.212 stated "the applicant claims to be the carer of one or more of their Australian relatives", the language would be unambiguous, and the aforementioned effect of cl 836.221 would be to require Ms Myat's Australian relative requiring care at the time of application, be the same Australian relative requiring care at the time of decision. However, we submit the use of the words "a person" and "an Australian relative" leave open the eventuality that an applicant's Australian relative requiring care may change between the date of application and the date of decision.

    Therefore, based on the dictionary and plain ordinary reading of the two clauses, we submit that cl 836.212 requires that at the time of application, Ms Myat be the carer of an Australian relative. The effect of cl 836.221 is such that Ms Myat is then required to be, at the time of decision, the carer of an Australian relative. On this reading, the Australian relative does not have to be the same Australian relative and that is reflected by the use of the word "an" before Australian relative in clause 836.212.

24. The representative continued to argue as follows:

    Clause 836.212 was originally worded in the following way:

    836.212 The applicant claims to be a carer of a person who:is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and is usually resident in Australia; and has nominated the applicant for the grant of the visa.( Migration Amendment Regulations 1999 (No. 13), available here: https:// current wording was inserted by Migration Amendment Regulations 2002 (No. 2).( Available here: note the previous wording required the person in need of care to have also nominated the applicant. We further note that the wording of cl 836.221 has remained unchanged.

    We submit that the original intention of cl 836.212 has changed. Under the original provisions, the person requiring care was required to have also nominated the applicant. Thus, under the first version, if the person requiring care died, they would not have been able to nominate the applicant at the time of decision. The consequence would be such that the applicant would not have met cl 836.221 because their nominator had died.

    We also note that the original version used the word "a person who is a settled Australian citizen... " rather than "an Australian relative". We submit, this wording, by itself, would have permitted an applicant to care for one person at the time of application, and a different person at the time of decision but for the requirement in the original version that the person also nominate the applicant. By removing the nomination requirement, we submit the Parliament intended to allow the settled person requiring care to change from the date of application to the date of decision providing the person requiring care was an Australian relative of the applicants.

25. It was submitted by the representative that this Departmental policy, and information on the Department website, makes it clear that the purpose of the visa is to enable families to reunite in circumstances where one member, who has a long-term medical condition and requires care, would be unable to receive that care. It was submitted that clauses 836.221 and 836.211 are not clear that the person requiring care at the time of application needs to be the same person at the time of decision. The section merely refers to ‘an Australian relative’, and Ms Thin is Ms Myat’s Australian relative. It was submitted that pursuant to s 15AA of the Acts Interpretation Act, where there are multiple interpretations the interpretation that would best achieve the purpose of the Act is to be preferred. In this case, it was submitted such an interpretation would find that Ms Myat is caring for an Australian relative at the time of decision. The representative noted that the words used in the legislation are ‘an Australian relative’, rather than ‘the same Australian relative’.

    Findings of the Tribunal as to whether the ‘caree’ must be the same person at the time of application and decision

26. Clause 836.212 of Schedule 2 to the Regulations refers to ‘a person’, who is ‘an Australian relative’. The words ‘a’ and ‘an’ are indefinite articles. If the language of the clause had incorporated a definite article, the word ‘the’, then this would have indicated that the legislators intended that the caree referred to in cl 836.212 must be the same person as the caree referred to in cl 836.221 as the word ‘the’ indicates specificity. However, as the words ‘a’ and ‘an’ were used, it is perceivable that the caree at the time of application could be a different person to the caree at the time of decision, as the word ‘a’ indicates ‘any’ or ‘every’ ‘thing you are referring to’[1]. Further, the definitions of ‘carer’ and ‘Australian relative’ do not suggest that the caree cannot change at the time of definition.

    [1] Cambridge Dictionary, < A, a | English meaning - Cambridge Dictionary>.

27. This interpretation correlates with the objects of the Act. Section 15AA of the Acts Interpretation Act 1901 Cth, provides that ‘in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation’. The objects of the Act set out in section 4 of the Migration Act 1968, Cth are general and do not provide guidance as to the object of carer visas, and nor does the Explanatory Memorandum[2]. Although not expressly stated, the object of the Act in relation to carer visas can be gleaned from common sense upon consideration of the ordinary meaning of the words of the legislation, which suggest that the object is to permit care of any relative who meets the criteria in the provisions. The object of the carer visa is also reflected in the Department’s explanation of the purpose of the visa as set out in the Department website. The website states ‘this permanent visa lets you stay in Australia to care for someone with a long-term medical condition who has not reasonable access to care options in Australia’.[3] Departmental policy states that the visa reflects immigration principles relating to reunion of relatives in recognition of kinship ties and the bonds of mutual dependency and support within families.[4]

    [2] Explanatory Memorandum, Migration Bill 1958, < Explanatory Memorandum, Migration Bill 1958 (aph.gov.au)>.

    [3] Department of Home Affairs website, < Department of Home Affairs>.

    [4] Department of Home Affairs, ‘Policy – Migration Regulations’.

28. Upon consideration of the ordinary meaning of the words in cl 836.212 and the purpose of a carer visa, the Tribunal is satisfied that the caree at the time of decision need not be the same person as the caree at the time of application.

    Whether the applicant has claimed to be the ‘carer’

29. Clause 836.212 of the Regulations requires that at the time of application the applicant claims to be the carer of an Australian relative.

30. For the purposes of the carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

31. In the present case, the visa application was made on the basis that the applicant, Ms Myat claimed to be the carer of Be Than.

32. The Tribunal finds that the niece, Ms Myat claimed to be the carer of another person, Mr Than at the time of application, and the ‘caree’, Mr Than was an Australian relative, that is a ‘relative’ as defined in reg 1.03 (an uncle) who is also an Australian citizen, permanent resident or eligible NZ citizen.

33. The Tribunal is satisfied that the applicant satisfied the requirements of cl 836.212 of Schedule 2 to the Regulations at the time of application.

    Are the sponsorship requirements met?

34. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

35. The Tribunal is satisfied that Ms Myat is sponsored by Ms Thin, the Australian relative. At the time of application, Ms Thin was over 18, was a settled Australian permanent resident, and usually resident in Australia per cl 836.213(a). There is no suggestion that the sponsorship has not been approved by the Minister pursuant to cl 836.227.

36. Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl 836.213 of Schedule 2 to the Regulations.

    Whether the applicant is a carer

37. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

38. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative, Ms Thin, is identified as the applicant’s sister. Documentary evidence was provided in the application including a photocopy and translation of the list of household members in Myanmar identifying Ms Thin and Ms Myat as the daughters of U Thar Naig and Daw Than Shin. Ms Thin is an Australian permanent resident. Regulation 1.03 provides a definition of ‘relative’ which includes ‘close relative’ which is defined to include siblings.

39. Ms Myat is therefore a relative of the Australian relative, having regard to the definitions of ‘relative’ and ‘close relative’ in reg 1.03 ‘usually resident’ in Australia.

40. Therefore, as the applicant is the sister of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

1. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit 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; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

2. For a certificate to meet reg 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 (see Legislative Instrument IMMI 14/085).

3. The Tribunal is satisfied that there is such a certificate in place.

4. Initially, a certificate dated 16 December 2020 from Bupa Medical Services was provided. The summary comments stated, ‘Mrs. Naing Is a 46-year-old lady with chronic low back pain, which has unfortunately become more severe following an epidural block under radiological guidance in July 2020. Since that time. her pain has not abated, in fact has worsened to include constant severe occipital headaches, severe low back pain, and bladder complications of incontinence. She has tried all reasonable therapy for these conditions with no meaningful improvement. While there is scope for some improvement in the future. it is likely, given 5 months has already elapsed with no improvement, that her pain and functional impairment may persist for foreseeable future. Her ability to carry out her activities of daily living have been Impaired. and she satisfies the requirements for a carer visa at today's assessment.’ The Certificate provided that she required assistance to rise from her wheelchair, her gait is antalgic and very slow, with small steps. She took several minutes to get comfortable sitting on edge of bed, then needed to stand to relieve pain. It was also stated ‘tenderness over occipital prominence and over L5 and the sacral body in the midline. Some radiation to thighs bilaterally. Unable to perform any lumbar flexion/extension due to pain’. Further, ‘wearing pad and also seated on wheelchair seat pad. Bladder palpable and faceal loading of descending colon also noted’.

5. It was stated that she had back pain onset 10 years ago when caring for elderly uncle, pain has increased over 5 years, L3/4 and L5/S1 disc bulge and facet joint arthropathy, had facet joint injection 5 years ago with good effect but ED admission to investigate occipital headache post steroid epidural block injection to lumbar spine. Pain has persisted since then. Immediately following the injection, she developed urinary incontinence with a mixed stress/urge component. Pelvic floor exercises have not had a major improvement, nor a trial of Ditropan and trimethoprim. Wears pads at all times and avoids drinking when she is to be away from the house. Physio slightly helpful, but headache and back pain are persistent. Other medical conditions: asthma, knee pain since 2009 (right – osteoarthritis and 2016 (left – meniscetomy), hyperthyroidism, and gout.’

6. An updated certificate dated 16 August 2023 was provided to the Tribunal on the date of hearing. The impairment rate was updated to 60. The summary comments stated that: ‘Mrs. Mi Thin Thin Naing is a 51 y/o F who had a chronic back pain which required an epidural injection and resulted to an unfortunate adverse affect and has significantly affected the activities of her daily life. She has a documented severe detrusor instability which requires her to wear a pad 24 hours a day. Additionally. after the incident, she developed PTSD and depression resulting to a marked decrease in her activities and according to her psychiatrist has made a big impact on her, causing moderate functional impairment. During assessment, she presents on a wheelchair and is unable to bend over and required assistance transferring in and out of her wheelchair. Over-all, in my assessment, she would require direct daily assistance with most of her personal activities of daily living and has met the requirements for a Carer for a Carer visa application’.

7. The Tribunal is satisfied that the certificate dated 16 August 2023 meets the requirements of reg 1.15AA (2) as it is signed and issued in in relation to a medical assessment carried out on behalf of a health provider specified by the Minister - see Legislative Instrument IMMI 14/085.

8. Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv) Accordingly, the requirements of reg 1.15AA(1)(b) are met.

   Residency status of person with medical condition – reg 1.15AA(1)(ba)

9. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

10. In the present case, the person with the medical condition, Ms Thin, is an Australian permanent resident as confirmed by Departmental records.

11. Accordingly, the requirements of reg 1.15AA(1)(ba) are] met.

    Impairment rating – reg 1.15AA(1)(c)

12. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126.

13. In the present case, the impairment rating specified in the certificate is 60. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

14. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.

15. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

    Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)

16. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

17. The type of assistance to be considered is the assistance referred to in the certificate provided by the health service provider, namely direct assistance in attending to the practical aspects of daily life which is needed because of an identified medical condition (reg 1.15AA(1)(b)(iv)). The BUPA Certificate in August 2023 certified that the applicant will require direct daily assistance with most of her personal activities of daily living.

    Can assistance reasonably be provided by relatives?

18. Ms Thin’s parents, husband and her three siblings reside in Australia as well as her three sons. She has one brother and two sisters. The Tribunal questioned why these relatives could not provide the assistance required. Ms Thin submitted that her parents could not care for her as they are too old and other relatives were unable to assist her due to family and financial commitments. These submissions are set out below.

19. It was submitted that Ms Thin’s husband, Nai Aie Oatsomm, could not care for her as he works full-time. He provided a Statement dated 10 August 2023 in which he confirmed this, stating that he cannot afford to give up his work to provide the necessary care, as they have a mortgage and school fees to pay. He said that Ms Myat takes care of his wife as he is not in a position to do so. He provided copies of his CSR Employee Payslip showing that he works as an operator level 4 with a monthly salary of $5472.

20. The Tribunal accepts that the applicant’s husband works full-time and could not reasonably provide the complex 24-hour care required. The Tribunal also notes that their children are too young to provide the care needed.

21. It was also submitted that Ms Thin’s siblings were unable to provide the type of care needed due to their employment and family commitments. Ms Thin’s sister, Mi Sen Yin, provided a Statement dated 10 August 2023. She said that she lives in Mount Druitt with her husband who has chronic liver disease. She claimed that her husband cannot wash, clean or prepare food. She looks after him and she works full-time for Botton Clarke. She said that sometimes when not working she visits her sisters and helps them. She said that she could not provide the 24-hour care required for Ms Thin.

22. Another sister, Ms Banyar Naing Shwe Paing provided a Statement dated 10 August 2023. She said that she has a partner and two children, and they live in Brinsmead, Queensland. She is employed as a support worker in the disability and mental health sector in Cairns on a permanent part-time basis. She said that they own their own house. She provided enrolment records for her children’s schools and payslips from her place of employment.

23. Mr Nai Nyan Layeh, the brother of Ms Thin also provided a statement. He said that he works in IT for his company, Infinet Service Solutions Company on a full-time permanent basis. He said that he sometimes works overtime as well. He provides for his three children’s education and takes them to activities.  He said that for this reason he cannot look after his sister although he visits once a week.

24. At hearing Ms Myet submitted that collectively her relatives could not provide the care needed for Ms Thin. She said that they all work full-time. Her brother has a family business and must look after the children. They could not jointly care for her as they do not have the time available. She explained the kind of activities she does for Ms Thin on an average day, which explains why the other siblings could not look after Ms Thin. She said that she does all the cooking, cleaning and travelling. She also arranges Ms Thin’s treatment from a machine. She said that when she wakes up, she cleans and then prepares food for children including their school lunchboxes and then they leave for school. After that she attends to her sister, helping her wash herself and clean the house. She said that she prepares lunches and helps the children on the computer. She also takes them to school at 8.30am. After that at 9.20 pm she has a break then helps her sister with her exercises. She makes her father breakfast and helps him. Then she buys groceries, makes meals and helps her father to have a shower. After that she does exercises with her sister, and she picks up the children. She organises dinner. About 5.30 she helps her sister do exercises. About 6’ o’clock, she helps feed them. She has her meal quickly. She then helps her sister with toileting, bathing, and then exercises and then around 8 pm she rests for the day. Occasionally she wakes during the night to assist her sister. She said that she also takes her sister to medical appointments and pushes the wheelchair.

25. The kind of care she described is confirmed in the letter dated 3 August 2023 from Dr Anantharaman, who said that the applicant had been suffering for a very long time following the injury to her back 10 years ago. She said that for the last four years the pain has gradually increased and in 2020 it became severe and Ms Thin could no longer stand. She said that Ms Thin had lost the control of her bladder and developed a speech impairment. This had led to depression. She said that Ms Thin’s speech is slurry currently and she cannot stand or walk independently.

26. The Tribunal is satisfied that due to the high intensity assistance required by Ms Thin, as described in the BUPA Certificate, the assistance could not reasonably be provided by the siblings. One sister is living in Queensland and works full-time. The other sister also works and cares for her husband, who has liver disease. Her brother works in his business and has other family commitments. Each of the relatives either lives too far away or have too many other financial, health and family commitments to be able to provide the level of care required.

27. The Tribunal is also not satisfied that collectively the relatives could reasonably provide the care needed, given the level of these commitments, and the fact that one sister lives in Queensland.

    Could services be obtained from welfare, hospital or nursing or community services?

28. In submissions dated 10 August 2023 the representative claimed that Ms Thin requires care around the clock which cannot be obtained by welfare, hospital, nursing or community services in Australia. Ms Thin said that they had asked for assistance from NDIS but were told funding was not available for the 24/7 assistance that she requires. She said that she had also made requests of ‘Settima’ services, where she had volunteered. The community leader had told her that they could not provide the personal care needed on a 24 hour basis, but could only provide transport services. She said that she requires personal care such as showering and toileting and help with nappies, which she would prefer be provided by a relative.

29. Ms Myet submitted that Ms Thin’s legs are weak and she assists her with walking and and she needs to be watched for a fall. She said that Ms Thin needs assistance if she has an asthma attack or pain at night. She must also keep Ms Thin mobile through exercise and therapy and muscle exercise with an electrical machine. She said that she helps her set up the machines and then during the night if Ms Thin has an attack she gets water for her. According to the Bupa Certificate Ms Thin requires assistance with mobility, bathing, toileting, dressing, eating, transportation and supervision for personal safety. She submitted that this type of care could not be provided by care services on a 24 hour basis.

30. Ms Thin’s psychiatrist, Dr Way, in a letter dated 28 February 2023 reported that Ms Thin is ‘seriously disabled by her mental health condition’ and ‘will benefit from the assistance provided by NDIS services’. He provided a letter in support of her NDIS application.  He said that she had presented to him with a two-year history of PTSD since a bad reaction to a selective epidural injection in 2020 which left her with acute dystonic reaction with pain in her neck, tightness in chest, weakness in legs and loss of bladder control, requiring treatment from a neurologist and gynaecologist. He noted that she had reported flashbacks and startle responses and had a needle phobia. It was reported that she had chronically depressed mood with bouts of crying, forgetfulness and other symptoms. She was diagnosed with PTSD and major depression and was being treated with anti-depressants and psycho-education. She had also benefitted from treatment by a clinical psychologist and counselling. He said that she had been socially isolated.

31. Dr Tan of Campbell Street Family Medical Practice in a letter dated 20 February 2023 stated that he had treated Ms Thin since 2007. It was reported that she suffers from PTSD with chronic depression, asthma, hypothyroidism sinusitis, severe urinary incontinence, chronic knees and lower back pain. Dr Tan said that she requires regular psychotherapy, physiotherapy and assistance with self care and household chores, especially when there is acute exacerbation of back pain and depressed mood. In an updated report on 29 August 2023 Dr Tan said that she requires 24/7 care on a live-in basis and that even if she received National Disability Insurance Scheme (NDIS) funding, she would not be able to get care from a community carer because of her medical conditions.

32. It was submitted that NDIS on its website states that support to provide assistance should generally be limited to a maximum amount of 6 hours per day. At home hospital care services are not available.[5] On 21 March 2023 a delegate of the CEO of the National access and Reassessment Branch of the NDIS notified Ms Thin of the decision to refuse her NDIS access. A copy of the letter was provided to the Tribunal. It was submitted that the price of 24-hour care without NDIS funding was out of reach for the applicant.

    [5] National Disability Insurance Scheme, <National Disability Insurance Scheme (NDIS)>.

33. Furthermore, the applicant submitted that it was important for her to have a Burmese carer who was familiar with her language, culture and food. The applicant submitted that she had searched for a Burmese carer as her Burmese culture was important to her. She said that the only Burmese carer was not available 24 hours a day and was in the Shoalhaven area. Documents were provided to the Tribunal to demonstrate that searches had been made of residential respite care services in the area. It was submitted that Ms Thin is of Mon ethnicity and there are only about 300 Mon people in Australia, mainly in Canberra. Ms Myat gave evidence that she prepares Mon dishes daily for Ms Thin. She also helps Ms Thin maintain her connection to her Mon culture, which is very important to her. According to Ms Thin’s statement dated 24 August 2023 they speak Mon together and sometimes Burmese. She said that her children only speak Mon and English. She said that maintaining her connection to Mon culture, one of the oldest cultures in the world, is very important to her. She said that before she became ill she regularly attended Mon events. She said that her sister, Ms Myat helps decorate the house in Mon designs and they eat Mon food. For breakfast they have Mon Mohegan, traditional rice noodles and fish soup or Mon fried rice. She also listed a number of other Mon food varieties that Ms Myat prepares. She said that maintaining the connection with Mon culture helps her with her anxiety and depression. Furthermore, they are also Buddhists and treasure their prayer sessions before Buddha. They wear traditional Buddhist clothing at home. Ms Thin claimed that there are no carers she knows of who share her Burmese and Mon heritage and speak Mon. She provided a number of photographs taken before she was ill to show her connection to Mon ethnicity. She also provided traditional photographs of Mon food taken at home.

34. Dr Zareena Anatharaman in a report dated 3 August 2023 suggested that Ms Thin requires the kind of constant personal care that only a family member could provide. She was also concerned that Ms Thin’s depression would increase if her sister’s visa application is not approved. Dr Tan confirmed on 28 July 2023 that she sees a psychiatrist, psychologist, neurologist and uro-gynaecologist. Dr Tan confirmed that she needed someone to care for her 24 hours a day and there was no-one in the Burmese community who could care for her.

35. The Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service (Biyiksiz v MIMIA [2004] FCA 81). The Tribunal has taken into consideration as to whether services are obtainable, cultural factors (for example the ability to provide a specific cultural diet as in Lin v MIMIA or appropriate ethnic and linguistic services as in Biyiksiz v MIMIA). The Tribunal notes that courts have held that an applicant’s mere preference for a particular service is to be distinguished from a cultural reason. In Hon Anh Vuong v MIAC the Court found that applicant’s mere preference to be cared for by his children rather than by strangers was not a barrier to his obtaining welfare assistance and therefore was not a matter that the Tribunal was required to consider further in its determination of reg 1.15AA. The Tribunal is satisfied that in this case the cultural factors are more than a mere preference, as they involve language, food, traditions and religion – all aspects of the applicant’s ability to function normally and have some quality of life.

1. As there are no Burmese and in particular Mon carers able to provide the care specified in the certificate and the applicant has not been granted NDIS funding and cannot afford the private care required all day, the Tribunal is satisfied that the assistance cannot be reasonably provided by another Australian relative, or obtained from welfare, hospital or nursing or community services.

2. The Tribunal is satisfied that the applicant meets the requirements of reg 1.15AA(1)(e).

   Willing and able – reg 1.15AA(1)(f)

3. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

4. The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition. The Tribunal has considered whether the applicant is willing and able to provide the level of assistance set out in the certificate on a continuing basis.

5. Ms Myat has a Bachelor of Science in Zoology and a three-year Diploma of Nursing. She said that in Myanmar she was offered work in a hospital but had to take care of her mother who had a prolapsed uterus and she also helped care for others in her village. It was submitted by the representative in submissions dated 10 August 2023 that Ms Myat is single and has had care training. It was submitted that she is willing to provide the care, as is demonstrated by the fact that she has been providing care for some time. Mr Nai Ale Oatsomm, Ms Thin’s husband provided a Statement dated 10 August 2023. He said that Ms Myat was the most appropriate person to take care of Ms Thin as they are siblings and she has the right qualifications. In a Statement of Ms Myat dated 10 August 2023, Ms Myat stated that she lives with Ms Thin and her husband, their three children and their father. She cooks, washes, cleans, does all the housework, looks after the children and father, and helps the children get ready for school. When her sister is unwell, she helps with showering, dressing, toileting and pushing the wheelchair. She helps her sister during the night when she has acute asthma, back and knee pain. She said that she needs attention three to four occasions each night. She changes, her and gives her medicine and water. Ms Thin in a Statement dated 10 August 2020 confirmed that she received this assistance from her sister. She said that Ms Myat has the skills and qualifications to help her and her children at school.

6. Mr Nai Ale Oatsomm, Ms Thin’s husband provided a Statement dated 10 August 2023. He said that Ms Thin is gentle and loves the family. Ms Banyar Naing Shwe Paing, the applicant’s other sister said that in her opinion, Ms Myat is the best candidate for caring for Ms Thin as she understands her needs as she and Ms Thin have had a close bond since childhood. She also has a nursing diploma and extensive knowledge and experience with illness, medication and safety issues as well as mental health issues. She also loves and cares for the family. Their brother, Nai Nyan Layeh also confirmed that Ms Thin has a ‘lot of knowledge of medicine and care’ and has a ‘strong physical body’. Dr Anantharaman in a letter dated 3 August 2023 confirmed that Ms Thin is dependent on Ms Myat, who also looks after her three boys.

7. The evidence sets out above establishes that the applicant has both nursing qualifications and directly relevant experience in caring for her sister and carrying out the complex care needs required (as set out in the BUPA certificate). She also has a close connection with her sister, the caree, and the appropriate cultural and personal familiarity. She clearly wishes to help her sister and is currently doing so. Therefore, the Tribunal is satisfied that the applicant is willing and able to provide to the Australian relative, Ms Thin, the substantial and continuing assistance of the kind needed. The applicant therefore meets the requirements of reg 1.15AA(1)(f).

   Conclusion on ‘Carer’ criterion

8. Given these findings, the Tribunal is satisfied that at the time of decision, the applicant, Ms Myat. is a carer of an Australian relative, being the sponsor, Ms Thin, and therefore satisfies cl 836.221 of Schedule 2 to the Regulations.

   CONCLUDING PARAGRAPHS

9. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa

   DECISION

   The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

   Cl 836.212, cl 836.213, cl 836.221 and 836.227 of Schedule 2 to the Regulations

   Jane Marquard

   Member

   Jane Marquard
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   1.15AA Carer

   1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

   (a)the applicant is a relative of the resident; and

   (b)according to a certificate that meets the requirements of subregulation (2):

   (i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and

   (ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

   (iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

   (iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

   (ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

   (d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

   (e)the assistance cannot reasonably be:

   (i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

   (ii)obtained from welfare, hospital, nursing or community services in Australia; and

   (f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

   (2)A certificate meets the requirements of this subregulation if:

   (a)it is a certificate:

   (i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

   (ii)signed by the medical adviser who carried it out; or

   (b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

   (3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.