Naing (Migration)

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.