Godoy Velasquez (Migration) - [2025] ARTA 808

Godoy Velasquez (Migration) [2025] ARTA 808 (30 April 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Melissa Del Carmen Godoy Velasquez
Mr Jorge Alexis Saavedra Dazarola
Mr Jorge Andres Saavedra Godoy
Miss Constanza Alejandra Saavedra Godoy
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2319471

Tribunal:Senior Member M Ison
Place:Melbourne
Date: 30 April 2025
Decision:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, in accordance with the order that the first named applicant meets the following criteria for a Subclass 836 (Carer) visa:
· clauses 836.212, 836.213 and 836.221 of Schedule 2 to the Regulations.

Statement made on 30 April 2025 at 5:15pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) –applicant was sponsored as required by the legislation – applicant is the daughter of the Australian relative – certificate provided meets the requirements of reg 1.15AA – assistance cannot reasonably be provided by other relatives – rating exceeds the impairment rating specified by the relevant instrument – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 348
Migration Regulations 1994 (Cth), rr 1.03, 1.15, Schedule 2, cls,836.212, 836.213, 836.221,

CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 12 July 2016 to refuse to grant the visa applicants Other Family (Residence) (Class BU) Subclass 836 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The application for review was made to the Administrative Appeals Tribunal (AAT). The AAT was abolished, effective on 13 October 2024, by the repeal of the Administrative Appeals Tribunal Act 1975 (Cth) by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). On 14 October 2024 the Administrative Review Tribunal (the Tribunal) was established by the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
Under the transitional provisions in the Transitional Act, applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Background
The primary visa applicant in this review is Mrs Melissa Del Carmen Godoy Velasquez who is a 43-year-old Chilean national. Mrs Godoy Velasquez is referred to as the applicant in these reasons for decision.
There are three secondary visa applicants in this review:
·Mr Jorge Alexis Saaverda Dazarola, aged 46, who is the applicant’s husband;
·Mr Jorge Andres Saaverda Dazarola, aged 19, who is the applicant’s son; and
·Miss Constanza Alejandra Saaverda Dazarola, aged 11, who is the applicant’s daughter.
The secondary applicants are referred to individually as the second, third or fourth named visa applicant or collectively as the secondary applicants in these reasons for decision.
The applicants were represented in this review by Mr Emad Fuad Khraim of Bardo Lawyers which changed its name to Bardo Le Noureddine Lawyers during this review.
The person requiring care is Mr Carlos Enrique Godoy Mazoz, aged 77, who was born in Chile and acquired Australian citizenship on 25 March 2014. Mr Godoy Velasquez is the applicant’s father and is referred to in these reasons for decision as the sponsor.
The applicant was granted a Student visa on 24 December 2008 and first arrived in Australia as the holder of that visa on 31 December 2008 and departed on 12 September 2010.
The applicant was granted a Visitor visa on 3 February 2015 and arrived in Australia as the holder of that visa on 21 May 2015, departing Australia on 6 June 2015.
The applicant returned to Australia on 16 September 2015 as the holder of the Visitor visa.
On 14 December 2015 the applicant applied for the Subclass 836 Carer visa.
On 18 December 2015 the applicant was granted a Bridging A (Subclass 010) visa. The applicant’s Bridging A visa did not have any conditions from Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations) attached.
On 12 July 2016 a delegate of the Minister refused the applicant’s application for the Subclass 836 Carer visa.
The applicant was granted a second Bridging A visa on 25 February 2016 and a third Bridging A visa on 16 August 2018, which the applicant continues to hold at the time of this decision. The applicant’s second and third Bridging A visas also did not have any conditions from Schedule 8 to the Regulations attached.
The second named visa applicant has an identical Australian immigration history to the applicant and their children, the third and fourth named visa applicants, have identical Australian immigration histories from their arrival in Australia on 16 September 2015. The secondary applicants also continue to hold Bridging A visas without any conditions attached at the time of this decision.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
The applicants applied for the visas on 14 December 2015. At that time, 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 applicants are 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. Relevantly to this matter, the primary criteria to be met includes cl 836.221.
The delegate refused to grant the visas on the basis that the applicant did not meet cl 836.221 of Schedule 2 to the Regulations which provides:
The applicant is a carer of a person referred to in clause 836.212.
Clause 836.212 of Schedule 2 to the Regulations provides:
The applicant claims to be the carer of an Australian relative.
The term ‘carer’ is defined in reg 1.15AA of the Regulations which is reproduced in the Attachment to these reasons for decision.
The delegate of the Minister was not satisfied that the sponsor had fully disclosed to the Department all relevant family living in Australia and was also not satisfied that the assistance required by the sponsor could not be provided collectively or individually by his wife Mrs Silvia Ines Velasquez Figueroa, and their Australian resident children Ms Jessica Maria Godoy Velasquez and Mr Carlos Manuel Godoy Velasquez.
Mrs Velasquez Figueroa’s first name is spelled as Silvia in her 2016 statutory declaration and as Sylivia in her 2025 statutory declaration. The spelling Silvia is used in the applicant’s visa application and supporting documents.
At the time of the primary decision the sponsor and his wife, the applicant’s parents, claimed to be separated, but they were still living together.
Mrs Velasquez Figueroa also has Australian resident relatives living in Australia including her mother, a sister and brother, each of whom she claimed estrangement from.
The delegate was also not satisfied a full investigation on the availability of residential care for the sponsor or the availability of welfare, hospital, nursing or community services to the sponsor in Australia had been undertaken.
The above concerns caused the delegate to find that there was insufficient evidence provided to demonstrate that the assistance the sponsor needs could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
This led the delegate to conclude that as the applicant had not provided sufficient evidence that the assistance the sponsor requires cannot reasonably be provided by any other relevant relative of the resident, or could not be reasonably obtained from welfare, hospital, nursing or community services in Australia, or a combination of the two, the applicant did not meet the requirements of either reg 1.15AA(1)(e)(i) or reg 1.15AA(1)(e)(ii).
As the applicant was assessed as not meeting the requirements of the definition of carer in reg 1.15AA the delegate found the applicant did not meet cl 836.221 of Schedule 2 to the Regulations.
The Minister for Immigration and Multicultural Affairs is listed as the respondent in this review on the cover sheet to this decision. Section 348A(1) of the Act provides:
The Minister is taken to be a non‑participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act.
Therefore, the Respondent did not participate in this review.
Decision of the AAT in review 1611270
The applicant applied to the AAT on 25 July 2016 to review the primary decision.
The AAT, differently constituted, heard the applicant’s application for review on 16 July 2018.
On 17 July 2018, by written decision, the AAT affirmed the decision under review.
The Tribunal found that it had not been demonstrated that the assistance the sponsor requires could not be provided from an Australian relative, being his son Mr Carlos Manuel Godoy Velasquez and a combination of welfare, hospital, nursing or community services in Australia.
Decision of the Federal Circuit and Family Court of Australia
The applicant sought judicial review of the AAT decision made on 17 July 2018 by the Federal Circuit and Family Court of Australia (Court).
By order made by judgment of his Honour Judge Forbes on 27 October 2023, the Court quashed the AAT decision and ordered the AAT to rehear and determine the application for review according to law: see Velasquez v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 952.
Review before the Tribunal: initial administrative hearing
This remitted review was constituted to the Tribunal as presently constituted on 20 November 2024.
On 2 December 2024 the Tribunal held an administrative hearing with the representative only, by video. No evidence was taken during the administrative hearing.
The purpose of the administrative hearing was stated in the hearing invitation to be for the representative to update the Tribunal on the following:
1. Obtain an update on the living circumstances of the visa applicants, the sponsor and the sponsor’s Australian citizen or permanent resident family members;
2. Confirm when the last Carer Visa Assessment Certificate (CVAC) was obtained for the sponsor. The last CVAC on the Department file appears to be the CVAC dated 10 April 2015;
3. Obtain an update on the health circumstances of the sponsor, including whether any up to date or recent medical reports are available;
4. Discuss who may be available or required to give evidence in addition to the primary visa applicant and sponsor if a Tribunal hearing is required; and
5. Discuss when a hearing before the Tribunal may be appropriately scheduled.
Pre-hearing information provided to the Tribunal
The applicants, through the representative, provided several submissions prior to the substantive Tribunal hearing, which attached documents including:
·A table of addresses in Australia for the applicant and the sponsor;
·Recent medical reports and documents for the sponsor;
·Statutory declarations declared by:
othe applicant;
othe second named applicant;
othe third named applicant;
othe sponsor;
othe applicant’s mother Mrs Velasquez Figueroa;
othe applicant’s sister (and sponsor’s daughter) Ms Jessica Maria Godoy Velasquez; and
othe applicant’s brother (and sponsor’s son) Mr Carlos Manuel Godoy Velasquez; and
·Personal identity information.
On 3 February 2025 the Tribunal received an updated CVAC for the sponsor, the details of which are addressed below.
These submissions were of considerable assistance to the Tribunal in the conduct of this review.
Tribunal hearing
The applicants appeared before the Tribunal on 3 March 2025 to give evidence and present arguments.
The Tribunal received oral evidence from:
·The applicant;
·The second named applicant;
·The third named applicant;
·The sponsor;
·Ms Jessica Godoy Velasquez; and
·Miss Fernanda Maria Morales Godoy who is Ms Jessica Godoy Velasquez’s daughter and the applicant’s niece.
The fourth named visa applicant attended the hearing but being aged only 11 years was not required to give evidence.
The applicant’s brother and sponsor’s son, Mr Carlos Manuel Godoy Velasquez did not want to attend the hearing in the presence of his father, the sponsor, but made himself available to give evidence by telephone. After the Tribunal had taken the evidence of the applicant and five family members the Tribunal decided it did not need to take evidence from Mr Carlos Manuel Godoy Velasquez.
The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
Post hearing information provided to the Tribunal
The applicants, through the representative, provided several submissions after the substantive Tribunal hearing, which attached documents including:
·Aged care information for the sponsor;
·Education information for the third named applicant;
·Payslip and tax information for the applicant, the second and third named applicants and for Ms Jessica Godoy Velasquez; and
·A four-page legal submission from the representative.
These submissions were also of considerable assistance to the Tribunal in the conduct of this review.
Outcome of this review
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the carer, as that term is defined in reg 1.15AA of the Regulations, of the sponsor.
Whether the applicant is a carer of the sponsor
Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’).
Background
The applicant and sponsor explained in their 2016 and 2025 statutory declarations and oral evidence the assistance the sponsor needs to attend to the practical aspects of the sponsor’s daily life. The Tribunal notes that 2025 CVAC has increased the impairment rating assigned to the sponsor since the 2015 CVAC from 30 to 40.
The sponsor explained that the applicant has been his primary carer, supported by the secondary applicants, since September 2015. The sponsor explained the assistance the applicant provides to him on a daily basis, including managing his [medications] . In his 2025 statutory declaration the sponsor explained his daily routine, including his participation with his daughter Ms Jessica Godoy Velasquez each Friday night at Amigos Unidos, a Spanish community centre.
The sponsor told the Tribunal about a recent fall and that without the applicant being in Australia he would not feel safe and expects he would have to go into a nursing home where people would mainly speak English not Spanish and he would die.
The sponsor also spoke about his excellent relationship with his daughter Ms Jessica Godoy Velasquez and his estrangement from his son Mr Carlos Manuel Godoy Velasquez which the sponsor told the Tribunal arose because his son ‘picked his mother’s side’ when the sponsor and his wife separated.
The Tribunal also discussed with the sponsor the support he receives from the secondary applicants.
The Tribunal discussed in detail with the applicant her and the second named applicant’s work commitments and how the sponsor is assisted and supported when they are working. The applicant provided a detailed 2025 statutory declaration setting out the assistance primarily she and the second named applicant provide to the sponsor including her daily routine with the sponsor in detail. The Tribunal accepts this evidence.
The applicant believes the sponsor’s health has improved through the care and companionship she and her family provide to the sponsor, even as his medical conditions have become more complex and the impairment rating assigned to him has increased. The applicant believes those gains would be quickly reversed if she and her family are not in Australia to assist the sponsor.
The Tribunal discussed with the applicant her brother’s relationship with her father, the sponsor. The applicant told the Tribunal when she and her family moved to Australia she hoped her extended family would be the family they were in their home country of Chile, but that has not turned out to be the case and is not something the applicant can control.
The applicant demonstrated a detailed knowledge of the sponsor’s medical conditions and medication, as the Tribunal would expect when the applicant has now been caring for the sponsor for over nine years.
The sponsor provided documents after the Tribunal hearing showing that he has a level 2 home care package as part of the Commonwealth Home Support Program. Publicly available information shows that this level of package attracts AUD18,793 in funding per annum, which is expected to fund approximately five and a half to eight hours of support per fortnight. This support can include personal care, social support, household help, transport and nursing care. A level 2 home care package is considered a low to moderate level of home care assistance.
The documents provided to the Tribunal included a comprehensive My Aged Care needs assessment completed in November 2022, My Aged Care plan, an initial in-home occupational health and safety assessment conducted by [a named] City Council conducted in November 2019, a 19-page National Screening and Assessment Form – Comprehensive Assessment completed in October 2022, a screen capture of the sponsor’s online support portal and a 45-page Home Care Agreement between the sponsor and the Spanish Latin American Welfare Centre trading as United that was signed and commenced on 28 April 2023.
The second named applicant gave oral evidence consistent with that of the applicant in relation to the assistance both he and the applicant provide to the sponsor, his employment history and the ability or willingness of the applicant’s brother, Mr Carlos Manuel Godoy Velasquez, to contribute to the assistance the sponsor needs.
The Tribunal also took oral evidence from the third named applicant who is 19 years of age at the time of this decision. The third named applicant explained to the Tribunal his taking a gap year after finishing secondary school and his work and financial history and circumstances during and after that gap year, including his intention to commence post-secondary school study and his dependence on his parents. The Tribunal makes no findings in relation to the third named applicant’s evidence save to note that his evidence about the working days and hours of his parents and the coordination of care for the sponsor was broadly consistent with particularly the applicant’s oral evidence.
Applicant is a relative of the resident – reg 1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident (sponsor) 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 is identified as the sponsor.

The Tribunal is satisfied, based on the personal identification documents provided by the applicants and the sponsor that the applicant is the daughter of the sponsor.
As the applicant is the daughter of the Australian relative, the Tribunal finds the applicant is a ‘relative’ of the sponsor and resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a)
Certification – reg 1.15AA(1)(b)
Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (sponsor) 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.
For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument and be signed by the medical adviser who carried it out. At the time of application and time of the primary decision IMMI 14/085 applied. At the time of this decision, LIN 24/040 – which repealed IMMI 14/085 – applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services (Bupa).
Two CVAC’s have been issued in this case. The first CVAC is dated 10 April 2015, assigned the sponsor an impairment rating of 30 and stated the sponsor was then partially dependent in self-care and did not state the sponsor required full-time 24 hour, seven day a week assistance.
The most recent CVAC has been issued by a registered medical practitioner employed or contracted by Bupa who signed the most recent certificate on 18 January 2025.
According to the CVAC dated 18 January 2025, the sponsor has been assessed as having an impairment rating of 40 under the relevant Impairment Tables. The doctor who completed the CVAC stated that the resident has been diagnosed with the following medical conditions which cause the impairments set out below:
·Chronic kidney disease
·Diabetes type 2
·Hypertension
·Diabetic neuropathy
·Diabetic retinopathy
·Obstructive sleep apnoea.
The examining doctor described the sponsor’s impairments as follows (errors in the original):
Table 1: Conditions limiting exertion and stamina
Details of impairment: Mr Godoy suffers from diabetes type 2, obstructive sleep apnoea, chronic kidney disease, hypertension which limit his exertion and stamina. This is on a background of coronary artery stents in September 2023 for diffuse atherosclerosis causing severe stenoses of the LAD and diagonal and moderate stenosis in the distal RCA He is on multiple medications which his daughter Melissa manages - [details deleted]. He reports using a CPAP machine at night. He reports using either a walking frame, wheelchair, or walking stick for mobility. He reports that when his daughter takes him to the shops, he either waits in the car or uses a mobility scooter.
Table 3: Conditions impacting lower limbs
Details of impairment: Mr Godoy suffers from diabetic neuropathy which impact lower limb function . He reports that putting on his shoes is difficult. He reported pain and swelling of both feet and says has to frequently elevate his legs at home. On examination, he had deformity of both feet, which were swollen. Peripheral pulses were weak. He had reduced sensation and poor sharp/dull discrimination in both lower limbs in a glove and stocking distribution up to the level of mid-shins. On examination today, Mr Godoy appeared tired and had difficult in standing up from a seated position. He mobilised slowly using a walking stick and appeared unsteady on his feet whilst walking on flat ground to the assessment room from the waiting room.
Table 12: Vision and the eyes (visual function)
Details of impairment: Mr Godoy suffers from diabetic retinopathy which impact his visual function. He also has had bilateral cataract surgery. Mr Godoy reports that his vision is not good and that it has been getting worse. He wears glasses for watching television. On examination today, he had difficulty in reading the signs on the wall. He appeared to have reduced peripheral vision in his left eye on visual field testing.
The examining doctor stated the sponsor’s medical condition has resulted in the need for personal care and attention on a daily basis to carry out routine bodily functions and the resident is in need of constant supervision or monitoring because he may be a danger to herself of others. The doctor diagnosed those care needs as being permanent (at least 2 years).
The Tribunal finds that the Certificate dated 18 January 2025 meets the requirements of reg 1.15AA(2). 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)
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.
In the present case, the person with the medical condition is the sponsor who the Tribunal accepts is an Australian citizen.
Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Impairment rating – reg 1.15AA(1)(c)
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. Clause 5 of IMMI 17/126 states that for the purposes of reg 1.15AA(1)(c) of the Regulations the impairment rating is 30.
In the present case, the impairment rating specified in the CVAC dated 18 January 2025 is 40. This rating exceeds the minimum impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
The Tribunal finds that the requirements of reg 1.15AA(1)(c) are met.
Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)
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.
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)
Regulation 1.15AA(1)(e) requires that the assistance required by the sponsor cannot reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen; or
(ii)obtained from welfare, hospital, nursing or community services in Australia.
Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to the second limb of reg 1.15AA(1)(e) 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 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, a sponsor’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].
Assistance cannot be obtained by any other relative of the resident
For the purposes of reg 1.15AA(1)(e)(i) [and other purposes] the terms ‘relative’ and ‘close relative’ are defined in reg 1.03 as follows:
relative, in relation to a person, means:
…
(b)      in any other case:
(i)       a close relative; or
(ii)a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.
close relative, in relation to a person, means:
(a)     the spouse or de facto partner of the person; or
(b)    a child, parent, brother or sister of the person; or
(c)     a step-child, step-brother or step-sister of the person.
The visa application reveals that the sponsor has a brother and sister who both reside in Chile. The Tribunal accepts that they are not relatives of the sponsor for the purposes of reg 1.15AA(1)(e)(i).
The delegate who made the primary decision found the sponsor has his wife, daughter Jessica and son Carlos as well as his wife’s Australian relatives as relevant relatives for the purposes of reg 1.15AA(1)(e)(i).
The delegate of the Minister did not accept that the sponsor and his wife, Mrs Velasquez Figueroa, were separated because at the time of the primary decision the delegate found they continued to cohabit together. This was significant because it meant the delegate considered Mrs Velasquez Figueroa and her Australian relatives to be relatives of the sponsor for the purposes of 1.15AA(1)(e)(i).
This is turn led to the delegate finding the delegate was not satisfied that the sponsor had fully disclosed to the Department all relevant family living in Australia and was also not satisfied that the assistance required by the sponsor could not be provided collectively or individually by his wife, children already in Australia and the Australian relatives on his wife’s side of the family.
The Department file provided to the Tribunal includes copies of the following statutory declarations:
·The applicant declared on 26 April 2016;
·The second named applicant declared on 26 April 2016;
·Mrs Velasquez Figueroa declared on 26 April 2016;
·Mr Carlos Manuel Godoy Velasquez declared on 22 April 2016; and
·Ms Jessica Godoy Velasquez declared on 26 April 2016.
There are statutory declarations from other extended family members on the Department file but these are not relevant for present purposes.
The delegate of the Minister did not accept that the sponsor and his wife, Mrs Velasquez Figueroa were separated at the time of the primary decision because the delegate found that the 2016 statutory declarations of the applicant, sponsor, Mrs Velasquez Figueroa and Ms Jessica Godoy Velasquez all stated they reside at a common address. Only Mr Carlos Manuel Godoy Velasquez’s statutory declaration stated he resided at a different address at that time.
Mrs Velasquez Figueroa claims in her 2025 statutory declaration that she separated from the sponsor in December 2015 and moved out of their shared house and moved into separate accommodation with her daughter Ms Jessica Godoy Velasquez and has not lived with the sponsor since.
The sponsor in his 2025 statutory declaration states that his daughter Ms Jessica Godoy Velasquez moved out of the family home in December 2015 and his wife moved with her.
Ms Jessica Godoy Velasquez states in her 2025 statutory declaration only that she moved out of her parents’ house into separate accommodation “towards the end of 2015” and her mother joined her “when she got separated from my father”.
The representative provided tables of addresses for the applicant and the sponsor that shows when and where they lived and who lived with each of them at each property they have lived at in Australia. Both tables state that Mrs Velasquez Figueroa moved out of the family home with her daughter Ms Jessica Godoy Velasquez in December 2015.

100. The Tribunal finds, based on the relevant 2016 statutory declarations, the sponsor and his wife were still living together at the time of the June 2016 primary decision.
101. The AAT in its July 2018 decision in review 1611270 found:
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).

102. Similarly, the Tribunal as presently constituted did not find the evidence about the timing or nature of the claimed separation of the sponsor and Mrs Velasquez Figueroa to be convincing. The Tribunal has not been provided with evidence of leases or other documents evidencing a shared address to support the claims that Mrs Velasquez Figueroa and Ms Jessica Godoy Velasquez have lived together but separately from the sponsor since December 2015.
103. The sponsor and Mrs Velasquez Figueroa provided bank statements for bank accounts in their separate names for the period August 2015 to February 2016 for Mrs Velasquez Figueroa and to April 2016 for the sponsor. Those bank statements show shared addresses throughout that period, although there is a delay in Mrs Velasquez Figueroa changing the address on her bank account at one stage.
104. Ms Jessica Godoy Velasquez provided 14 pages of bank statements for a bank account in her name for the period 26 February 2016 to 14 April 2016. That statement shows Ms Jessica Godoy Velasquez’s address as a shared address with both her mother and father during that period.
105. Ms Jessica Godoy Velasquez’s evidence is that in January 2022 she purchased land in a suburb of Melbourne and had a house constructed on that land, occupying the completed house from December 2022 with her mother and daughter. For present purposes, without formally finding, the Tribunal accepts this evidence.
106. The Tribunal also accepts for present purposes without formally finding that Mrs Velasquez Figueroa is no longer in a married or de facto relationship with the sponsor. This causes the Tribunal to find that Mrs Velasquez Figueroa is no longer a relative of the sponsor for the purposes of reg 1.15AA(1)(e)(i). This also means Mrs Velasquez Figueroa’s Australian relatives are not relatives of the sponsor for the purposes of reg 1.15AA(1)(e)(i).
107. Ms Jessica Godoy Velasquez describes herself as a single mother to her 18-year-old daughter Ms Morales Godoy and the primary support person for her mother, 68-year-old Mrs Velasquez Figueroa. Her evidence is that her daughter’s father remains in Chile but does not have an active role in their daughter’s life and provides no financial assistance in raising their daughter.
108. Ms Jessica Godoy Velasquez in her oral evidence described Ms Morales Godoy’s present circumstances including being diagnosed with epilepsy and her history of seizures, Ms Jessica Godoy Velasquez’s own working arrangements including to pay the mortgage on the house she owns, her relationship with and support of her mother and her relationship with and support of both her father, the sponsor, and her sister, the applicant.
109. The Tribunal asked Ms Jessica Godoy Velasquez about the ability of her brother to assist the sponsor. The applicant told the Tribunal her brother will not want to have anything to do with their father. This is consistent with the evidence of the applicant and sponsor.
110. Mr Carlos Manuel Godoy Velasquez provided a detailed 2025 statutory declaration setting out his arrival in Australia, living with his parents, subsequent marriage and 2019 separation from his wife when he initially moved to live with Ms Jessica Godoy Velasquez, her daughter and their mother. Mr Carlos Manuel Godoy Velasquez described his more recent and current accommodation and working history and financial and personal difficulties arising in the main from Family Court proceedings with his ex-wife and unsuccessful attempts to gain access to and have contact with their daughter.
111. Mr Carlos Manuel Godoy Velasquez claims he has no relationship with the sponsor and it has been more than eight years since he has spoken to him because of the way Mr Carlos Manuel Godoy Velasquez perceives the sponsor treated Mrs Velasquez Figueroa toward the end of their relationship. The Tribunal observes that the narrative presented now by Mr Carlos Manuel Godoy Velasquez’ is not consistent with his April 2016 statutory declaration, in which no mention of these issues is made.
112. The Tribunal notes that Mr Carlos Manuel Godoy Velasquez’ 2016 statutory declaration was declared approximately four months after the sponsor claims he separated from Mrs Velasquez Figueroa.
113. This caused the Tribunal great concern. Claims of estrangement are often made in Tribunal reviews of the refusal of a Carer visa application and are easily made but are notoriously difficult to prove or disprove. The Tribunal notes that in 2016 Mrs Velasquez Figueroa and other family members also claimed estrangement from Mrs Velasquez Figueroa’s side of the family.
114. When arranging the Tribunal hearing the Tribunal insisted on Mr Carlos Manuel Godoy Velasquez giving evidence, preferably in person. This caused significant concern for Mr Carlos Manuel Godoy Velasquez and angst for other family members, including the sponsor. Ultimately, the Tribunal agreed to Mr Carlos Manuel Godoy Velasquez giving evidence by telephone rather than by in-person.

115. However, the collective and consistent evidence of the witnesses given in-person including from the applicant, the sponsor and Ms Jessica Godoy Velasquez during the Tribunal hearing satisfied the Tribunal that the claimed estrangement of Mr Carlos Manuel Godoy Velasquez is genuine and whilst he has the physical ability to provide some assistance to the sponsor, that would not be practical or possible in any meaningful sense.
116. After the Tribunal hearing Ms Jessica Godoy Velasquez provided copies of her Notices of assessment of income tax from the Australian Taxation Office for the past three completed financial years showing she earned:
·1 July 2021 to 30 June 2022 – AUD[amount]
·1 July 2022 to 30 June 2023 – AUD[amount]
·1 July 2023 to 30 June 2024 – AUD[amount].

117. After the Tribunal hearing Ms Jessica Godoy Velasquez also provided copies of her last three pay slips for her full-time employment with Wilson Security and her part-time employment with Serco Facilities. The Tribunal found the information in these documents was consistent with the oral evidence of Ms Jessica Godoy Velasquez.
118. The Tribunal is satisfied from the oral evidence of Ms Jessica Godoy Velasquez and the documentary evidence provided of her employment and income, her personal and financial responsibilities are such that Ms Jessica Godoy Velasquez is not in a position now or likely into the reasonable future to meaningfully contribute to the assistance required by the sponsor.
119. At the time of the Tribunal hearing Miss Morales Godoy was 18 years of age and therefore a ‘near relative’ within the definition of that term in reg 1.03 for the purposes of reg 1.15AA(1)(e)(i).
120. Miss Morales Godoy attended the hearing to support her mother and the applicants but was requested by the Tribunal to give evidence when the Tribunal realised that Ms Morales Godoy was now aged over 18 years.
121. Miss Morales Godoy explained to the Tribunal that she lives at home, had enrolled but not been accepted into a post-secondary school course at the time of hearing and spoke about her future study and career plans and hopes. Ms Morales Godoy told the Tribunal she has been diagnosed as suffering epilepsy but her medication is stable and she has been seizure free for over two years, enabling her to obtain a learners permit to drive a motor vehicle.
122. Ms Morales Godoy explained to the Tribunal that she visits the sponsor and the applicant and her family once every two weeks or so and assists where she can but intends to focus on her studies. The Tribunal accepts this evidence and finds Ms Morales Godoy is not in a position to provide other than occasional assistance to the sponsor.
123. The Tribunal finds that the assistance required by the resident cannot reasonably be provided by a relevant relative and therefore the requirements of reg 1.15AA(1)(e)(i) are met.
Assistance cannot be obtained from welfare, hospital, nursing or community services in Australia
124. The applicant has provided evidence to the Tribunal’s satisfaction that the sponsor has made appropriate enquiries and applications to receive assistance from welfare, hospital, nursing and community services in Australia.
125. The sponsor has been granted a level 2 Commonwealth home care package under which he receives physiotherapy and other support services. Those home care services are provided by a culturally and linguistically suitable organisation for the sponsor’s specific cultural needs. There is also evidence of the sponsor receiving inpatient and outpatient services in relation to his various medical conditions over time, including as described in a November 2024 medical report from the sponsor’s general practitioner.
126. It is clear to the Tribunal that for the sponsor to be able to continue living as independently as possible in his own home the assistance the sponsor requires cannot be obtained from welfare, hospital, nursing or community services in Australia either on its own or in combination with the assistance of the sponsor’s Australian relatives.
127. The Tribunal finds that the assistance required by the resident cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e)(ii) are met.
Willing and able – reg 1.15AA(1)(f)
128. 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.
129. 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.
130. The applicant and second named applicant provided financial evidence to the Tribunal after the Tribunal hearing to support their respective evidence about their work history in Australia. The applicant’s Notices of assessment of income tax from the Australian Taxation Office for the recent completed financial years and her tax return for 2023-2024 show she earned:
·1 July 2021 to 30 June 2022 – AUD[amount]
·1 July 2022 to 30 June 2023 – AUD[amount]
·1 July 2023 to 30 June 2024 – AUD[amount].

131. The Tribunal has concerns that the applicant is working extensive hours rather than caring for the sponsor and notes the comprehensive My Aged Care screening and assessment completed in October 2022 records:
Carlos is separated and lives with his daughter Melissa, her partner and their kids in their rented home. Carlos reported that he finished school at the age of 18 y.o., completing high school. He worked as a ship mechanic in Chile and moved to Australia from Chile 12 years ago with his wife and has 3 children (now all living in Australia), but only Melissa provides support. Melissa has two kids – 17 year old son and 9 year old daughter and Carlos has a good connection with them. Carlos' other daughter has a poor relationship with Melissa and rarely visits; son also visits infrequently. Melissa moved to Australia approx. 7 years ago and her English is limited.
…
Melissa does not work and is full-time carer for Carlos, completing all domestic and community activities and attending his personal care.

132. It is clear to the Tribunal that the applicant is not a full-time carer for the sponsor, the sponsor has some but limited (and possibly declining) independence, the applicant has been working since at least 2021 and the claimed poor relationship with her sister was not repeated before the Tribunal or evident during the Tribunal hearing.
133. The applicant told the Tribunal she has to continue to work as the school fees for her daughter are very expensive.
134. The second named applicant’s tax returns (not Notices of assessment) show he earned:
·1 July 2021 to 30 June 2022 – AUD[amount]
·1 July 2022 to 30 June 2023 – AUD[amount]
·1 July 2023 to 30 June 2024 – AUD[amount].

135. The applicant and second named applicant provided their last three pay slips from their employers in support of their evidence about their work histories in Australia.
136. Despite the Tribunal’s concerns it recognises that the applicant has been the primary support person or carer for the sponsor for over nine years now. It is evident to the Tribunal that the sponsor is very happy with and grateful for the assistance the applicant provides to him, although this is not the test for the grant of a Carer visa.
137. The Tribunal also recognises that while the applicant is the primary carer for and provider of assistance to the sponsor, each of the secondary applicants contribute to the assistance the sponsor receives in their own ways and within their own capabilities. The Tribunal accepts that both the sponsor and the applicant wish for this care arrangement to continue.
138. Therefore, the Tribunal finds that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).
Conclusion – first named applicant Mrs Melissa Del Carmen Godoy Velasquez
139. Given the findings above, the Tribunal finds that at the time of this decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221 of Schedule 2 to the Regulations.
140. As a result of this finding the appropriate course of action is for the Tribunal to remit the application of the first named applicant for a Subclass 836 Carer visa to the Minister to consider the remaining criteria for a Subclass 836 Carer visa.
Conclusion secondary applicants - Mr Jorge Alexis Saavedra Dazarola, Mr Jorge Andres Saavedra Godoy and Miss Constanza Alejandra Saavedra Godoy
141. As the Tribunal has found the first named applicant meets the requirements of cl 836.221 of Schedule 2 to the Regulations the appropriate course of action is for the Tribunal to order that the secondary applications of the secondary applicants also be remitted to the Minister for reconsideration.
DECISION
142. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, in accordance with the order that the first named applicant meets the following criteria for a Subclass 836 (Carer) visa:
·clauses 836.212, 836.213 and 836.221 of Schedule 2 to the Regulations.

Dates of hearings: Administrative hearing 2 December 2024
Substantive hearing 3 March 2025

Representative for the Applicant: Mr Emad Fuad Khraim, Bardo Le Noureddine Lawyers

ATTACHMENT ONE
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.