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,…

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 Godoy Velasquez (Migration)

Details

AGLC: Godoy Velasquez (Migration) [2025] ARTA 808
Case: [2025] ARTA 808
Decision Date: 30 April 2025

CaseChat Overview and Summary

In the matter of Godoy Velasquez, the applicants, comprising Mrs Melissa Del Carmen Godoy Velasquez and her family, sought review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse their applications for Subclass 836 Carer visas. The applicants, all Chilean nationals, argued that Mrs Godoy Velasquez is the primary carer of her father, Mr Carlos Enrique Godoy Mazoz, an Australian citizen. The Tribunal, under the Transitional Act, was tasked with reviewing the delegate's decision and determining whether the application should be remitted for reconsideration.

The primary legal issue before the Tribunal was whether Mrs Godoy Velasquez met the definition of a carer as outlined in regulation 1.15AA of the Migration Regulations 1994. Specifically, the Tribunal had to consider if the assistance required by Mr Godoy Mazoz could not reasonably be provided by other relatives or obtained from available welfare services. The delegate had refused the application based on concerns that the sponsor had not disclosed all relevant family members living in Australia and that sufficient evidence was not provided to show that the sponsor’s needs could not be met by other relatives or services.

The Tribunal found that the evidence provided by the applicant and her family demonstrated that Mrs Godoy Velasquez has been the primary carer for her father since September 2015, providing essential daily assistance. The Tribunal accepted the evidence that the sponsor’s health has improved with the care provided by Mrs Godoy Velasquez and her family and that without their support, he would likely need to enter a nursing home. The Tribunal also found that the sponsor's wife, who resides with him, and their other children are estranged or unable to provide the necessary care. Consequently, the Tribunal concluded that the delegate's decision was flawed and that the matter should be remitted for reconsideration.

In light of the findings, the Tribunal remitted the matter to the delegate for reconsideration, taking into account the evidence presented regarding the care provided by Mrs Godoy Velasquez and her family, and the sponsor's specific needs.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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