Al-Magsoosi (Migration)

[2022] AATA 1949

Al-Magsoosi (Migration) [2022] AATA 1949 (2 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Naeem Mohammed Radhi Al-Magsoosi

VISA APPLICANT:  Miss Sedigheh Yaber Hossein Pour

CASE NUMBER:  2009855

HOME AFFAIRS REFERENCE(S):          BCC2019/1323283

MEMBER:P. Maishman

DATE:2 June 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

Statement made on 02 June 2022 at 2:00pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – genuinely intend to live together as spouses – advice that the sponsor is deceased – evidence of marriage – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 362, 379
Migration Regulations 1994, Schedule 2, cls 300.211, 300.214-300.216, 300.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 15 March 2019. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl 300.216 and cl 300.221.

3. The delegate refused to grant the visa on 11 June 2020 on the basis that the visa applicant did not satisfy cl 300.216 or cl 300.221 of Schedule 2 to the Regulations because the delegate was not satisfied the visa applicant and review applicant (the sponsor) genuinely intended to live together as spouses.

4. On 16 May 2022 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 2 June 2022. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

5. No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal had before it a copy of the Department’s file containing the visa application and documents received in support of the application.

8. The Department’s file contains a certificate pursuant to s 375A of the Act indicating the release of information on Trim Reference ADD2018/75388 on file BCC2019/1323283 would be contrary to the public interest. The Department’s file received by the Tribunal does not contain the document to which the certificate purports to apply. The Tribunal accordingly does not consider the certificate to be valid.       

9. The review applicant gave the Tribunal a copy of the delegates decision record with his application for review. The history of the visa application is outlined in the delegate’s decision record. In summary the visa applicant and the sponsor first met in Iran in December 2018. They became engaged to be married on 15 December 2018 and intended to marry on 18 April 2020.

10. On 13 and 14 April 2022 the Tribunal received written information from Hussein Pour who identified himself as the visa applicant’s brother. Mr Pour said the review applicant and the sponsor married in Iran and that the sponsor had died in Iraq. Mr Pour provided copies of an untranslated document he identifies as the marriage certificate from Iran. Despite his attempts, Mr Pour was unable to obtain any supporting evidence that the sponsor was deceased.  

11. The Tribunal is unable to test the veracity of the information and documents provided by Mr Pour. Mr Pour has indicated he is unable to obtain a death certificate, locate family members of the sponsor or identify an Executor of the sponsor’s estate. There is no probable evidence before the Tribunal that the sponsor is deceased.

12. The Tribunal attaches no weight to the document identified as a marriage certificate as it is not translated and not provided by the parties to the review. The Tribunal is unable to test the circumstances of the marriage Mr Pour claims occurred or the authenticity of the document. The Tribunal is not satisfied the visa applicant and sponsor have entered into a marriage recognised as valid for the purposes of the Act.

13. The Tribunal does not consider the information that the sponsor has died or that the parties’ married is adverse information such that it requires disclosure in accordance with s 359A of the Act. For the reasons explained in this decision the Tribunal does not consider the information to be the reason, or part of the reason, to affirm the decision under review. The Tribunal has not taken the information into account when making its decision.       

14. Immigration records obtained by the Tribunal indicate the sponsor departed Australia on 31 March 2021 and has not returned.          

15. The issue in the present case is whether the parties genuinely intend to live together as spouses.

16. Clause 300.221 requires that, at the time of decision, the visa applicant continues to satisfy the criteria in cls 300.211, 300.214, 300.215 and 300.216. Those criteria require that, at the time the visa application was made, the visa applicant intends to marry an Australian citizen, permanent resident or eligible New Zealand citizen; the parties have met and are known to each other personally; the parties genuinely intend to marry and intend to do so during the visa period; and the parties genuinely intend to live together as spouses.

    Do the parties continue to meet time of application requirements?

17. Clause 300.221 requires that at the time of decision, the visa applicant continues to satisfy the criteria in cl 300.211, 300.214, 300.215 and 300.216.

18. The Tribunal received no relevant evidence or submissions following the lodgement of the review application. The sponsor, as the review applicant, did not attend the hearing to give oral evidence.

19. Accordingly the Tribunal is unable to be satisfied that at the time of this decision the applicant continues to satisfy any of the criteria in cl 300.211, cl 300.214, cl 300.215 or cl 300.216.   

20. Accordingly, cl 300.221 is not met.

21. For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

    P. Maishman
    Member