Godoy Velasquez (Migration)

[2018] AATA 3294

Godoy Velasquez (Migration) [2018] AATA 3294 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Melissa Del Carmen Godoy Velasquez
Mr Jorge Alexis Saavedra Dazarola
Mr Jorge Andres Saavedra Godoy
Miss Constanza Alejandra Saavedra Godoy

CASE NUMBER:  1611270

DIBP REFERENCE(S):  CLF2015/79468

MEMBER:Kira Raif

DATE:17 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 17 July 2018 at 2:14pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Whether the applicant is the carer of an Australian relative – Where the sponsor is living with her claimed former partner – Insufficient evidence to establish that the sponsor and her partner have separated – Assistance can be reasonably provided by another relative in Australia – Assistance can be obtained from community services in Australia – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA, Schedule 1, Item 1123B, Schedule 2, cls 836.221, 836.321

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 Immigration on 12 July 2016 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of Chile. The first named applicant (the applicant) was born in June 1981. She applied for the visa on 14 December 2015. The application includes her spouse and two children. The delegate refused to grant the visas on the basis that cl.836.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the delegate was not satisfied the applicant was a carer of an Australian relative. The applicants seek review of the delegate’s decision.

3. The applicants appeared before the Tribunal on 16 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the applicant’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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 Regulations. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations.

5. Clause 836.221 requires that at the time of decision, the applicant is the carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations.

   Whether the applicant is a carer

6. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s father and evidence of the relationship has been submitted with the application.

7. As the applicant is the daughter of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

8. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.

9. For a certificate to meet r.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 specified health provider in relation to a review of such an opinion.

10. The applicant provided with her application a copy of the Certificate issued by Bupa Medical Visa Services in April 2015. The Certificate specifies that the sponsor is a person who has a medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life. The certificate indicates that there is a need for direct assistance in attending to the practical aspects of daily life because of the medical condition and that the need for direct assistance will continue for at least two years. The Certificate indicates that an impairment rating of 30 has been assigned.

11. The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.

12. 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. The sponsor is an Australian citizen and the requirements of r.1.15AA(1)(ba) are met.

13. 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. In the present case, the impairment rating specified in the certificate is 30. This rating meets the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

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

15. 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.

16. The applicant indicated on the application form and various documents submitted throughout the application process that the sponsor’s spouse and two adult children reside in Australia. The sponsor claims to be separated from his spouse but continues to reside with her, and their daughter, at one address. The sponsor’s son lives about 25 kilometres away. The delegate notes that the sponsor’s spouse also has a number of relatives in Australia, including her mother and siblings, but the Tribunal is mindful that these are not ‘relatives’ of the sponsor for the purpose of r.1.15AA(1)(e).

17. Each of the sponsor’s relatives provided statements as to why they are unable to care for the sponsor.

18. The sponsor’s son, Carlos Manuel Godoy Velasquez, provided a declaration in which he states that he cannot provide full-time care to his father because he works on a casual basis 3-4 days a week and is studying towards a Certificate course, which requires full-day attendance once a week. Mr Velasquez states he intends to seek full-time employment upon completion of the course. He states he lives with his wife and two and a half year old daughter. His wife works long hours and he looks after the child on the days she does not attend childcare. He also states he lives some distance away from his parents’ home (the delegate noted the distance was about 25 km).

19. The sponsor’s daughter Jessica Maria Godoy Velasquez provided a declaration in which she states that she cannot provide full time care to her father because she is a single mother of a nine year old and works night shifts five days per week from 10 pm to 6 am. She also has a casual job during some mornings and drops off her daughter at school and the rest of the time she sleeps. Ms Velasquez states that she lives with her parents and due to work commitments, she cannot provide the required care and assistance.

20. The sponsor’s former spouse, Silvia Ines Velasquez Figueroa provided a declaration in which she states that she is unable to provide full time care to her husband. She refers to her employment as a cleaner five days a week for 2.5 hours. She refers to her own health problems with her right knee and left shoulder. Ms Figueroa states she does not feel qualified to be able to deliver the care that her husband requires because due to his diabetes and depression and other illnesses, his mood ‘became annoying’ and he blames her for everything. Ms Figueroa states that she and the sponsor have separated despite living together as they ‘cannot even speak to each other’. The parties provided evidence of having separate bank accounts and evidence that Ms Figueroa last received carer pension in 2015 but the delegate noted that the separate bank accounts were arranged before the claimed separation and the delegate was not satisfied that the couple have separated.

21. With respect to assistance from other sources, the applicant provided with her application general information and marketing materials from care facilities. The applicant also provided a statement from the Spanish Latin American Welfare Centre and a number of other documents.

22. The applicant confirmed in oral evidence to the Tribunal that the sponsor has two children in Australia and no other adult relatives. With respect to the sponsor’s relationship with his wife, the applicant said they separated in 2014. They lived together prior to separation but since she came to Australia, her parents have been living separately. The applicant said that since she found a place to rent around 2016, she has been living with her family and her father while her mother and sister live in another place. The applicant said her parents have not divorced even though they claim to have been separated for a number of years and the applicant could not explain why divorce proceedings have not commenced. The applicant said her parents have a ‘good relationship’ and they talk to each other during family functions but they do not speak to each other every day. The applicant said that her parents have separate bank accounts but she said they had separate accounts before the separation so their financial arrangements have not changed. The applicant said her parents have no friends, so she cannot tell how others view her parents’ relationship. The Tribunal accepts that the applicant’s parents live in different households but the applicant’s evidence is that the two places are ten minutes apart and that they get together for family functions.

23. Following the hearing, the applicant provided a statement from her mother, who claims her relationship with the sponsor ended. The Tribunal acknowledges that evidence but the Tribunal does not consider there is sufficient evidence to establish that the sponsor and his spouse are no longer in a relationship. The Tribunal is mindful that the applicant provided with her application a statement from her mother indicating that she and the sponsor live separately under one roof and it appears that the parties started to live separately only after the visa application was refused. The applicant has not produced evidence that the couple’s financial arrangements have changed or that they no longer represent themselves to others as being in a relationship or that they are no longer committed to the relationship. While the sponsor told the Tribunal they constantly argued, the applicant’s evidence to the Tribunal is that they get along well and attend family functions. The applicant could not explain why her parents did not seek formal divorce, despite the claimed separation.

24. The Tribunal considers the evidence concerning the parents’ claimed separation inadequate. Nevertheless, the Tribunal has decided to give the parties the benefit of the doubt and accepts, for the purpose of this application, that the sponsor and his former partner are no longer in a spousal relationship. The Tribunal finds that the spouse is not a ‘relative’ for the purpose of r. 1.15AA(e)(i).

25. The applicant told the Tribunal that her sister works as a security guard 12 hours a day and she works different shifts. A copy of the sister’s employment contract has been provided to the Tribunal. The applicant said that her sister works every day and other family members take care of the child. The Tribunal accepts that this relative cannot provide the assistance to the sponsor.

26. The applicant told the Tribunal that her brother does not work but takes care of his five year old daughter while his wife works. When asked why he cannot take care of the sponsor, the applicant said that her brother lives separately and visits from time to time. The sponsor told the Tribunal that his son lives far away, about half an hour drive. The Tribunal does not consider that such distance precludes the sponsor’s son from providing a level of care. Both the applicant and her father told the Tribunal that the son does not help and does not care for his father. The Tribunal is mindful that in his declaration, which the applicant provided with her primary application, the sponsor’s son did not express his unwillingness to support their father, nor his lack of care. Similarly, in the updated declaration of 15 July 2018 Mr Godoy Velasquez refers to his unavailability, rather than unwillingness, to act as a carer. The brother was not available to give oral evidence to the Tribunal and the Tribunal has not had the opportunity to test his evidence.

27. The Tribunal is not satisfied that the applicant’s brother is unwilling to provide any care to his father. While the Tribunal acknowledges that he has a small child, that in itself is not sufficient to exclude the brother’s availability. The applicant’s own evidence is that she takes care of her two children and her small niece and these children do not affect her capacity to act as a carer and in the same way, the Tribunal does not consider that the presence of a child – who would be going to school or kindergarten – would preclude the applicant’s brother from acting as a carer. The Tribunal accepts that he may not be able to do it on a full-time basis but in the Tribunal’s view, the applicant’s brother – who has no work commitments – is able to provide a substantial level of care to his father. The Tribunal does not accept he is unwilling to do so. The Tribunal considers that the assistance can reasonably be provided by this relative.

28. The Tribunal also explored with the applicant the possibility of the sponsor obtaining assistance from other sources. The applicant and the sponsor both told the Tribunal that the sponsor would not be willing to be placed in a nursing home and that it would be culturally inappropriate for him to go to a nursing home. The applicant provided with her application some evidence of having explored the possibility of a nursing home although it is not apparent from the presented evidence that adequate inquiries have been made. Even if the Tribunal were to accept that placing the sponsor in an aged care facility would not be appropriate, the Tribunal is not satisfied that the family have explored other arrangements such as in-home care. The applicant told the Tribunal that the sponsor has not been assessed by an Aged Care Assessment team. There is no evidence that the family have explored the option of hiring a professional health care worker or that they otherwise sought help from organisations that could provide in-house care. Such assistance would not preclude the sponsor from staying at home and living with his family, as is his preference.

29. On the evidence before it, the Tribunal is not satisfied that the assistance cannot reasonably be provided by another relative (the sponsor’s son) or obtained from welfare, hospital, nursing or community services in Australia. The Tribunal is also of the view that a combination of such assistance – from a relative and from other organisations – would be adequate and suitable in the sponsor’s circumstances. The Tribunal is not satisfied the requirements of r.1.15AA(e) are met.

30. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221. The secondary applicants do not meet cl.836.321 and there is nothing to suggest they meet the primary criteria for visa grant.

31. The applicant is not old enough to be granted the aged pension and she is not an Aged Dependent Relative of an Australian relative. The applicant stated on the form that her spouse has parents and siblings in Chile and the Tribunal finds they are near relatives, so that the applicant does not meet the requirements for the grant of the Remaining Relative visa.

    Conclusion

32. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

33. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Kira Raif
    Senior Member