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

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
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.
Ms Myat applied to the Department of Home Affairs (the Department) for the visa the subject of this review on 29 June 2016.
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.
A delegate of the Department again refused the visa application on 25 November 2020, on the basis that the person stated to require care…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Naing (Migration)

Details

AGLC: Naing (Migration) [2023] AATA 3648
Case: [2023] AATA 3648
Decision Date: 29 September 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse Ms Myat Myat Naing, a citizen of Myanmar, an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). Ms Naing had applied for the visa to care for her uncle, Be Than. However, by the time of the delegate's decision in November 2020, Be Than had passed away. Ms Naing then sought to care for her sister, Ms Mi Thin Thin Naing, who was also the sponsor. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant could be considered a carer for a different caree at the time of the decision than the one nominated at the time of application.

The primary legal issue before the Tribunal was whether the criteria for a Subclass 836 (Carer) visa, specifically clauses 836.212 and 836.221 of Schedule 2 to the Migration Regulations 1994 (Cth), required the applicant to be caring for the same Australian relative at the time of the decision as was claimed at the time of application. Clause 836.212 requires the applicant to claim to be the carer of an Australian relative at the time of application, while clause 836.221 requires the applicant to be a carer of a person referred to in clause 836.212 at the time of the decision. The Tribunal considered whether the person referred to in clause 836.212 at the time of decision could be any Australian relative, or must be the specific relative nominated at the time of application.

The Tribunal found that the wording of clause 836.221, requiring the applicant to be a carer of "a person referred to in clause 836.212," did not mandate that the person be the same individual as nominated at the time of application. The Tribunal reasoned that the critical element was that the applicant must be a carer of an Australian relative who meets the criteria outlined in clause 836.212. Given that the applicant's sister, Ms Thin, was an Australian relative and the evidence indicated she had a permanent or long-term need for assistance, the Tribunal concluded that the applicant could indeed be considered a carer for Ms Thin. Consequently, the Tribunal remitted the decision to the Department for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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 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. Ms Myat applied to the Department of Home Affairs (the Department) for the visa the subject of this review on 29 June 2016. 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. 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. 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. The matter is now before the Tribunal for review.RELEVANT LAW 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. 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’. 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.’ 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

Evidence

Evidence Before The Court

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 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. 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 TRIBUNALWhether the caree must be the same person at the time of application and time of decision Clause 836.212, which is a time of application criteria, provides that ‘the applicant claims to be the carer of an Australian relative’. 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. Clause 836.221 requires that at the time of decision, ‘the applicant is a carer of a person referred to in Clause 836.212.’ 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

Decision

Reasons for decision

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 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.’ 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. 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. 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 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. 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 TRIBUNALWhether the caree must be the same person at the time of application and time of decision

Ratio Decidendi

Legal Principle Established

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