Garcia Callaba (Migration)

[2024] AATA 3134

Garcia Callaba (Migration) [2024] AATA 3134 (26 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rolando Garcia Callaba

REPRESENTATIVE:  Mr Christian Cifuentes

CASE NUMBER:  2201077

HOME AFFAIRS REFERENCE(S):          CLF2014/12323

MEMBER:Kate Millar

DATE:26 August 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Statement made on 26 August 2024 at 10:47am

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – relationship ceased – genuine relationship prior to alleged family violence – evidence from specified occupations – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cl 100.221; r 1.21, 1.23-1.25

CASES

Hasran v MIAC [2010] FCAFC 40
Minister for Immigration v Gupta [2022] FACFC 51              

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision to refuse to grant Mr Garcia Callaba a Partner (Migrant) (Class BC) visa.

2. The grant of a partner visa occurs in two stages, and Mr Garcia Callaba was granted a temporary Partner (Provisional) (Subclass 309) visa on 13 August 2015 because of his relationship with Ms Christina Callaba.  This review is about his application for a permanent Partner (Migrant) visa.

3. On 23 January 2020, Mr Garcia Callaba was asked for further information in support of his application for a Partner (Migrant) (Class BC) visa.  On 17 October 2020, Ms Christina Callaba notified the Department that they were no longer living together and had separated.

4. On 16 August 2021, Mr Garcia Callaba was advised that the Department had received information that the relationship had ended and was invited to comment on this information.  Mr Garcia Callaba requested an extension of time to respond but did not respond within the extension granted.  On 26 November 2021, he was again invited to comment on this information.  Mr Garcia Callaba failed to respond, and a decision was made that he did not meet the requirements for the visa.  Mr Garcia Callaba has applied to the Tribunal for a review of this decision.

5. The issue before me is whether Mr Garcia Callaba is the spouse or de facto partner of Ms Callaba and, if he is not, whether any of the exceptions apply that allow him to otherwise meet the criteria for the visa.

   TRIBUNAL HEARING

6. On 31 August 2022, Mr Garcia Callaba, through his representative, was sent a notice issued under s 359(2) of the Migration Act 1958 (the Act).  The notice was sent to the email address of his representative specified on his application for review as his authorised representative.  The notice invited Mr Garcia Callaba to provide information to show he was the spouse of his sponsor, or met one of the exceptions under which he could be granted a partner visa.  The notice advised that if he did not respond or request an extension of time by 14 September 2022 that he would lose any entitlement he might otherwise have to appear before the Tribunal to give evidence and present arguments. 

7. Mr Garcia Callaba did not respond to this notice within the prescribed period and no extension was granted.

8. In these circumstances s 359C applies, and under s 360(3) of the Act Mr Garcia Callaba is not entitled to appear before the Tribunal.  The effect of s 363A of the Act is that if he has no entitlement to a hearing, the Tribunal has no power to permit him to appear (Hasran v MIAC [2010] FCAFC 40 (‘Hasran’) at [25] to [32]).

9. On 16 September 2022 Mr Garcia Callaba’s representative wrote to the Tribunal claiming that the response was not provided in the prescribed period due to ill health of Mr Garcia Callaba and the ill health of the representative and requesting an extension.  No evidence was presented in support of the claimed ill health of either Mr Garcia Callaba or his representative.

10. The Tribunal has no power to grant an extension of time to respond to the notice if this is requested after the expiration of the prescribed period (Hasran at [47]) and has no power to permit Mr Garcia Callaba to appear before it.

11. On 19 September 2022, Mr Garcia Callaba provided a statutory declaration claiming he had suffered family violence and indicating he sought further time to provide statements by three other witnesses.  On 11 October 2022, a statutory declaration was provided from his current de facto partner Ms Iona Ursache. Statutory declarations were provided from a friend Ms Sara Verastegui, and a friend Mr Freddy Aguilar on 14 October 2022, and a statutory declaration was provided from Mr Daniel Rojas Cruz on 17 October 2022.  

12. Despite the loss of his right to attend a hearing, Mr Garcia Callaba was again invited to provide information to show he had made a valid claim of family violence in accordance with the Migration Regulations 1994 (Cth) (the Regulations) and legislative instrument LIN23/026. This was provided by email his representative and authorised recipient.

13. Mr Garcia Callaba’s representative advised that he no longer acted for him, and that the invitation to provide further information had been provided to Mr Garcia Callaba at his nominated email address.

14. The Tribunal wrote to Mr Garcia advising that his representative no longer acted for him and inviting him to nominate another representative.  As the Tribunal is required to send correspondence to his authorised recipient (s 3679G of the Act), this was sent to his representative with a copy to the email address specified by Mr Garcia Callaba at his personal address on his application for review.

15. No response was received within the time requested, however on 21 August 2024, an email was received from an email address that was not Mr Garcia Callaba’s email address with an attached “Change of Contact Details – MR Division” form notifying that Ms Lidia Ursache is now his authorised recipient and withdrawing his previous authorisation of his representative.  This form is not signed or dated and did not originate from Mr Garcia Callaba’s email address.  As it did not come from Mr Garcia Callaba’s email address, was not signed and dated, and did not provide any information requested of him to show he has made a valid claim of family violence, I have decided to proceed on the information available to me. 

    CERTIFICATE ISSUED UNDER S 376 OF THE ACT

16. The Department file contained a certificate issued under s 376 of the Act.  If a valid certificate is issued under this section, the Tribunal may have regard to any document or information that is the subject of the certificate and may, after having regard to advice of the Secretary about the significance of the document or information, disclose it to the applicant or any other person (s 376(3) of the Act).

17. A valid certificate must certify in writing that the disclosure of the information or document would be contrary to the public interest for a reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding and must not include a statement that the document or information is only disclosed to the Tribunal. 

18. In this case, the certificate is electronically signed and dated and specifies a public interest reason why disclosure would be contrary to the public interest and is a valid certificate. 

19. The information and documents that are the subject of the certificate are either known to Mr Garcia Callaba, as he acknowledges the relationship with Ms Callaba has broken down, or are not relevant to the question before me, which is whether he had made a non‑judicially determined claim of family violence. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The decision under review is a decision by a delegate of the Minister for Home Affairs on 6 January 2022 to refuse to grant Mr Garcia Callaba a Partner (Migrant) (Class BC) visa under s 65 of the Act.

21. Mr Garcia Callaba applied for the visa on 23 January 2014. At that time, Class BC contained one subclass: Subclass 100 (Partner). The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Regulations, and Mr Garcia Callaba must satisfy the primary criteria in Part 100 to be granted the visa.

22. The primary criteria include cl 100.221 which requires the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor(cl.100.221(4)(b) and (c)(i))

23. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 100.221 of Schedule 2 to the Regulations because the delegate was not satisfied that Mr Garcia Callaba was the spouse of Ms Callaba.  In his statutory declaration dated 19 September 2022, Mr Garcia Callaba does not dispute the relationship has broken down, but claims the relationship ended due to family violence. 

24. The first question before me is whether Mr Garcia Callaba was in a spouse relationship with Ms Callaba that has ceased (Minister for Immigration v Gupta [2022] FACFC 51).  The information before me supports that they were in a spouse relationship, and I am satisfied that there was a spousal relationship as defined by the Act and the Regulations.  I am also satisfied this relationship has ceased. 

25. Relevant family violence is defined in reg 1.21. The violence, or part of the violence, must have occurred during the relationship (reg 1.23(12)).  Under reg 1.23 of the Regulations, a person is taken to have suffered or committed family violence if:

    ·     there is evidence tested before a court; or

    ·     the visa application includes a non-judicially determined claim of family violence; and

    o   either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence; or

    o   an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence.

26. These Regulations, as relevant to this decision, are extracted in the attachment to this decision.

27. There is no evidence before me of evidence tested before a court, and I have considered whether Mr Garcia Callaba has made a non-judicially determined claim of family violence.

    Has a claim of family violence been made under the Regulations?

28. Under reg 1.23(9)(c), a visa application is taken to include a non-judicially determined claim of family violence where evidence in accordance with reg 1.24 is provided.

29. Regulation 1.24 requires:

    ·     a statutory declaration under reg 1.25; and

    ·     the type and number of items specified by the Minister by an instrument in writing.

30. Where, as in this case, the family violence is alleged to have been suffered by Mr Garcia Callaba from Ms Callaba, the statutory declaration under reg 1.25 must be made by Mr Garcia Callaba and set out the allegation of family violence and name the person alleged to have committed the relevant family violence.

31. The statutory declaration of Mr Garcia Callaba dated 19 September 2022 names Ms Callaba as the person alleged to have committed relevant family violence and set out his allegations of family violence.  This meets the requirements of reg 1.25.

32. Mr Garcia Callaba must also provide the number of types of evidence set out in the legislative instrument Migration (Specification of evidentiary requirements for family violence) Instrument (LIN23/026) 2023 (‘the Instrument’).

33. The Instrument requires a minimum of two items of evidence mentioned in the Schedule to the Instrument to be provided.  The items of evidence must be from people who are in specified occupations being medical practitioners (including a registered nurse or midwife), police officer, child welfare officer, family violence support worker, social worker, psychologist, family consultant or family relationship counsellor and education professional evidence.

34. Mr Garcia has provided a statutory declaration from his current de facto partner and statutory declarations from two friends.  His de facto partner declares she is a claims officer with an insurance company, Ms Verastegui declares she knows Mr Garcia Callaba through the Latin dance community, Mr Aguilar declares he is an accountant, and Mr Rojas Cruz declares he is a rope access technician. None of these statutory declarations are from people who practice a specified occupation and the statutory declarations provided do not meet the requirements of the Instrument. As a result, Mr Garcia Callaba has not provided evidence in accordance with reg 1.24 of the Regulations and has not made a non‑judicially determined claim of family violence under reg 1.23(9) of the Regulations.

35. As Mr Garcia has not made a claim of family violence, it is unnecessary to go on to consider whether he has suffered relevant family violence.

    CONCLUSION

36. Given the above conclusion that the claim of family violence has not been established, Mr Garcia Callaba does not meet the requirements of cls 100.221(4)(b) and (c) for the grant of the visa. There is no evidence before the Tribunal that the applicant meets any of the alternative subcriteria.

37. As Mr Garcia Callaba does not meet cl 100.221 of Schedule 2 to the Regulations which is necessary for him to be granted the visa, the decision under review is affirmed.

    DECISION

38. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

    Kate Millar
    Deputy President

    
    

    ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    1.21 Interpretation

    In this Division:

    independent expert means a person who:

    (a)is suitably qualified to make independent assessments of non-judicially determined claims of family violence; and

    (b)is employed by, or contracted to provide services to, an organisation that is specified, in a legislative instrument made by the Minister, for the purpose of making independent assessments of non-judicially determined claims of family violence.

    non-judicially determined claim of family violence has the meaning given by subregulations  1.23(8) and (9).

    relevant family violence means conduct, whether actual or threatened, towards:

    (a)the alleged victim; or

    (b)a member of the family unit of the alleged victim; or

    (c)a member of the family unit of the alleged perpetrator; or

    (d)the property of the alleged victim; or

    (e)the property of a member of the family unit of the alleged victim; or

    (f)the property of a member of the family unit of the alleged perpetrator;

    that causes the alleged victim to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety.

    statutory declaration means a statutory declaration under the Statutory Declarations Act 1959.

    violence includes a threat of violence.

    …

    1.23     When is a person taken to have suffered or committed family violence?

    (1)For these Regulations, this regulation explains when:

    (a)a person (the alleged victim) is taken to have suffered family violence; and

    (b)another person (the alleged perpetrator) is taken to have committed family violence in relation to the alleged victim.

    Note     Schedule 2 sets out which visas may be granted on the basis of a person having suffered family violence. The criteria to be satisfied for the visa to be granted set out which persons may be taken to have suffered family violence, and how those persons are related to the spouse or de facto partner of the alleged perpetrator mentioned in this regulation.

    Circumstances in which family violence is suffered and committed — injunction under Family Law Act 1975

    (2)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if, on the application of the alleged victim, a court has granted an injunction under paragraph 114(1)(a), (b) or (c) of the Family Law Act 1975 against the alleged perpetrator.

    (3)For subregulation (2), the violence, or part of the violence, that led to the granting of the injunction must have occurred while the married relationship between the alleged perpetrator and the spouse of the alleged perpetrator existed.

    Circumstances in which family violence is suffered and committed — court order

    (4)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)a court has made an order under a law of a State or Territory against the alleged perpetrator for the protection of the alleged victim from violence; and

    (b)[…] order was made after the court had given the alleged perpetrator an opportunity to be heard, or otherwise to make submissions to the court, in relation to the matter.

    (5)For subregulation (4), the violence, or part of the violence, that led to the granting of the order must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — conviction

    (6)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if a court has:

    (a)convicted the alleged perpetrator of an offence of violence against the alleged victim; or

    (b)recorded a finding of guilt against the alleged perpetrator in respect of an offence of violence against the alleged victim.

    (7)For subregulation (6), the violence, or part of the violence, that led to the conviction or recording of a finding of guilt must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    Circumstances in which family violence is suffered and committed — non-judicially determined claim of family violence

    (8)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim and the alleged perpetrator have made a joint undertaking to a court in relation to proceedings in which an allegation is before the court that the alleged perpetrator has committed an act of violence against the alleged victim.

    (9)For these Regulations, an application for a visa is taken to include a non-judicially determined claim of family violence if:

    (a)the applicant seeks to satisfy a prescribed criterion that the applicant, or another person mentioned in the criterion, has suffered family violence; and

    (b)the alleged victim is:

    (i)       a spouse or de facto partner of the alleged perpetrator; or

    (ii)      a dependent child of:

    (A)the alleged perpetrator; or

    (B)the spouse or de facto partner of the alleged perpetrator; or

    (C)both the alleged perpetrator and his or her spouse or de facto partner; or

    (iii)     a member of the family unit of a spouse or de facto partner of the alleged perpetrator (being a member of the family unit who has made a combined application for a visa with the spouse or de facto partner); and

    (c)the alleged victim or another person on the alleged victim’s behalf has presented evidence in accordance with regulation 1.24 that:

    (i)       the alleged victim has suffered relevant family violence; and

    (ii)      the alleged perpetrator committed that relevant family violence.

    (10)If an application for a visa includes a non-judicially determined claim of family violence:

    (a)the Minister must consider whether the alleged victim has suffered relevant family violence; and

    (b)if the Minister is satisfied that the alleged victim has suffered the relevant family violence, the Minister must consider the application on that basis; and

    (c)if the Minister is not satisfied that the alleged victim has suffered the relevant family violence:

    (i)       the Minister must seek the opinion of an independent expert about whether the alleged victim has suffered the relevant family violence; and

    (ii)      the Minister must take an independent expert’s opinion on the matter to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the applicant for the visa, or another person mentioned in the criterion, to have suffered family violence.

    (11)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is satisfied under paragraph (10)(b) that the alleged victim has suffered relevant family violence.

    (12)For subregulation (11), the Minister must be satisfied that the relevant family violence, or part of the relevant family violence, occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.

    (13)The alleged victim is taken to have suffered family violence, and the alleged perpetrator is taken to have committed family violence, if:

    (a)an application for a visa includes a non-judicially determined claim of family violence; and

    (b)the Minister is required by subparagraph (10)(c)(ii) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant family violence.

    (14)For subregulation (13), the violence, or part of the violence, that led to the independent expert having the opinion that the alleged victim has suffered relevant family violence must have occurred while the married relationship or de facto relationship existed between the alleged perpetrator and the spouse or de facto partner of the alleged perpetrator.