Garcia Callaba (Migration)

This matter concerned an appeal by Mr Garcia Callaba against a decision by a delegate of the Minister for Home Affairs to refuse to grant him a Partner (Migrant) (Class BC) visa. Mr Garcia Callaba had applied for the visa in 2014. The primary criteria for the visa included being the spouse or de facto partner of the sponsor, unless the relationship had ceased and certain circumstances existed, such as the applicant having suffered family violence committed by the sponsor. The delegate refused the visa because they were not satisfied that Mr Garcia Callaba was the spouse of the sponsor. Mr Garcia Callaba contended that the relationship had ended due to family violence.

The court was required to determine two principal issues: first, whether Mr Garcia Callaba had been in a spousal relationship with the sponsor that had since ceased, and second, whether he had made a non-judicially determined claim of family violence in accordance with the Migration Regulations 1994. The court noted that the information before it supported the existence of a spousal relationship which had ceased. The central question then became whether the requirements for a non-judicially determined claim of family violence under the Regulations had been met.

The court found that there was no evidence of violence tested before a court. It then considered whether Mr Garcia Callaba had made a non-judicially determined claim of family violence. Regulation 1.23(9) of the Migration Regulations 1994 outlines the circumstances in which a visa application is taken to include such a claim, requiring evidence in accordance with regulation 1.24 that the alleged victim has suffered relevant family violence and that the alleged perpetrator committed it. The court concluded that Mr Garcia Callaba had not presented evidence in accordance with regulation 1.24 to establish a non-judicially determined claim of family violence.

Consequently, as Mr Garcia Callaba did not satisfy the primary criteria for the visa, specifically clause 100.221 of Schedule 2 to the Regulations, the decision under review to refuse the visa was affirmed.