Russo (Migration)

[2021] AATA 1561

Russo (Migration) [2021] AATA 1561 (1 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Aldo Russo

VISA APPLICANT:  Ms Hasnae Sarnane

CASE NUMBER:  1801343

DIBP REFERENCE(S):  BCC2016/3825361 OSF2016030564

MEMBER:P. Wood

DATE:1 April 2021

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 1 April 2021 at 6:22pm

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa - Subclass 300 – not a genuine relationship – limited evidence of relationship including – sponsor’s marriage to another person – applicant’s relationship with another person – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 375A
Migration Regulations 1994, Schedule 2, cls 300.216 and 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 Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 15 November 2016. 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 (the Regulations). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on 21 November 2017 on the basis that the visa applicant did not satisfy cl.300.216 and 300.221 of Schedule 2 to the Regulations because they were not satisfied that the applicant and the sponsor genuinely intended to live together as spouses.

4. The review applicant was represented in relation to the review by his registered migration agent.

5. The review applicant appeared before the Tribunal by telephone on 31 March 2020, 9 September 2020 and 30 September 2020 to give evidence and present arguments. Unfortunately, the hearings on 31 March 2020 and 9 September 2020 had to be adjourned due to technical issues outside of the control of the applicants and the Tribunal. The Tribunal also received oral evidence from the visa applicant. The Tribunal was convened with the assistance of an interpreter in the Arabic and English languages.

6. On 19 August 2020 the Tribunal wrote to the applicant’s migration agent advising that the Department file contained a certificate issued by a delegate of the Minister under s 375A on 14 February 2018 restricting the disclosure of certain information on the Department file. The Tribunal stated that it had formed the view that the certificate was valid and had decided not to release the information. The Tribunal provided a copy of the certificate to the applicant’s migration agent and invited them to make submissions relating to the validity of the certificate. In the same letter, pursuant to s 359A, the Tribunal invited the applicant to comment or respond to a ‘dob-in’ allegation on the Department file which alleged that the relationship between the parties was not genuine. The letter explained that the information was relevant to whether or not the parties where in a genuine and continuing relationship and had a genuine intention to live together as spouses. The letter stated that if the Tribunal were to rely on this information in making its decision, it may find that the parties did not have the requisite genuine intention, which would be part of the reason for affirming the decision under review.

7. On 1 September 2020 the applicant’s migration agent provided a response to the Tribunal’s correspondence, including the following documents, which the Tribunal has read and had regard to:

   ·     A statement by the visa applicant’s sister

   ·     A statement by the review applicant

   ·     An untranslated Moroccan police report related to the visa applicant’s brother dated 26 August 2020

8. On 8 September 2020 the Tribunal contacted the applicant’s migration agent to request recent evidence of communication between the sponsor and the visa applicant. On the same day, the applicant’s migration agent provided a text log showing communication between the parties between 8 August 2020 and 4 September 2020. The Tribunal has read and had regard to this.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the parties have a genuine intention to live together as spouses.

11. The visa applicant, Ms Hasnae Sarnane, was born in September 1979. She is a citizen of Morocco. She applied for a subclass 300 visa on 15 November 2016.

12. The sponsor and review applicant Mr Aldo Russo was born in October 1965. He is a national of Italy and an Australian permanent resident.

13. The review applicant is a friend of the visa applicant’s brother in law. The visa applicant’s sister lives in Australia.

14. According to the submissions, the parties met each other on 15 March 2016 at the residence of the visa applicant’s sister in Australia. The visa applicant had travelled to Australia on a tourist visa following her sister giving birth. The sponsor claims to have proposed to the visa applicant soon after, and the parties claim to have become officially engaged on 5 August 2016. On his own admission, the review applicant said in his oral testimony that the visa applicant was “shocked” by his proposal. In any event, the parties claim that they had a small engagement ceremony in Australia and later a traditional engagement party in Morocco during the sponsor’s visit there in August 2018.

15. In addition to that discussed above, the Tribunal has read and had regard to:

    • Tax invoices for jewellery dated May 2017 and April 2018
    • Money transfer receipts from the sponsor to the visa applicant dated between 2017 and 2020
    • Airline tickets from Melbourne to Casablanca in the name of the sponsor departing Australia on 5 June 2018 and returning to Melbourne on 27 June 2018
    • Photos of the parties together and with others in indoor and outdoor settings, including celebrations and holidays
    • An undated letter from the sponsor to the visa applicant
    • Records of messages, photos and audio messages between the parties dating from September 2019 – October 2019
    • Message logs between ‘Aldo’ and a phone number recorded as [phone] dated March 2018 to November 2018
    • Airline tickets from Melbourne to Istanbul in the name of the sponsor
    • A letter from the sponsor addressed to ‘Australian immigration’ dated 8 April 2019
    • Call logs between the parties
    • Form 888 Statutory Declarations from Vincenzo Russo and Alex Russo, the sponsor’s brother and nephew attesting to the genuineness of the relationship between the parties
    • Submissions from the applicant’s migration agent in support of the application for review
    • A discharge summary from Eastern Health for the sponsor dated 2 April 2019
    • A notarised letter dated 17 October 2019 signed by the visa applicant’s mother, Sernan Taher, attesting to the genuine relationship between the parties, translated from Arabic by a NAATI certified translator
    • A letter from the visa applicant to the sponsor translated from Arabic by a NAATI certified translator on 17 November 2019
    • Digital logs of online money transfers to the visa applicant dated from November 2019 to January 2020
    • A Cbus superannuation binding death nomination form assigning the visa applicant as a beneficiary of 50% of the sponsor’s superannuation, signed and witnessed on 3 March 2020
    • A letter from Cbus superannuation to the sponsor dated 3 March 2020 confirming the visa applicant as a non-binding beneficiary of 50% of the sponsor’s superannuation
    • Court papers for a family violence complaint made by the visa applicant against her former partner
    • A statement by the visa applicant about the circumstances of her relationship with her ex-partner translated from Arabic by a NAATI certified translator on 4 May 2020

    Does the visa applicant intend to marry an eligible person?

16. Clause 300.211 requires that at the time of application the visa applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In this case, the sponsor is an Australian citizen. Accordingly, the requirements of cl.300.211 are met.

    Was the visa applicant 18 at the time of application?

17. Clause 300.212A requires that the visa applicant has turned 18. On the evidence before it, the Tribunal is satisfied that the visa applicant was born in 1979 and has therefore turned 18 years of age. Accordingly, the Tribunal finds that cl.300.212A is met.

    Is the visa applicant sponsored as required?

18. Clause 300.213 requires that at the time of application the visa applicant is sponsored by the review applicant, and that the review applicant has turned 18.

19. On the basis of the evidence, the Tribunal is satisfied that the sponsor was born in 1965 and therefore has turned 18 years of age. Accordingly, cl.300.213 is met.

20. Clause 300.222 requires that the sponsorship referred to in cl.300.213 has been approved and is still in force. Approval of sponsorship is subject to a number of limitations contained in the Regulations including the following: r.1.20J sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship; r.1.20KA limits the period before which certain Parent visa holders can sponsor another person for a Partner visa; r.1.20KB limits sponsorship by persons charged with, or convicted of, certain offences (where the visa application was made on or after 27 March 2010); r.1.20KC limits sponsorship by persons convicted of a relevant offence in relation to which they have a significant criminal record (where the visa application was made on or after 18 November 2016).

21. The Tribunal is satisfied on the basis of the evidence before it that the sponsorship is in force and accordingly the requirements of cl.300.222 are met.

    Have the applicants met in person and are they known to each other personally?

22. Clause 300.214 requires that the parties have met in person since each of them turned 18 and that they are known to each other personally. The Tribunal accepts that the applicants first met in person in 2016. Therefore, at the time of application, the requirements of cl.300.214 were met.

    Do the parties genuinely intend to marry?

23. Clause 300.215 requires that at the time of application the parties have a genuine intention to marry, and that the marriage is intended to take place within the visa period.

24. Whilst the Tribunal acknowledges the obvious difficulties associated with making wedding plans when living in different countries, it notes that they were supposedly able to overcome similar challenges in order to hold what was described as a traditional engagement party in Morocco during the sponsor’s visit in August 2018.

25. The claims of the applicants in this respect are discussed further below.

    Do the parties genuinely intend to live together?

26. Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as valid for the purposes of the Act; there must be a mutual commitment to a shared life as a married couple to the exclusion of all others; the relationship must be genuine and continuing; and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out in r.1.15A(3) for spousal relationships: r.1.15A(4). While it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.

27. The delegate’s decision record, a copy of which was provided by the applicant to the Tribunal, detailed the following findings of the delegate with respect to the elements in s 5F:

    Financial aspects of the relationship

    The delegate found that the parties had provided no real evidence regarding the financial aspects of the relationship. The visa applicant claimed that the sponsor transferred money to her on a weekly basis, but no supporting information was submitted to the Department. Given the parties resided in different countries, the delegate placed little weight on this aspect of the relationship.

    Nature of the household
    
    The delegate noted that the parties did not provide evidence, apart from a few photos that they had spent time in each other’s company. The delegate noted that while the parties did provide some evidence of communication with each other through online chats, this did not indicate extensive or regular communication and did not substantiate regular contact or the maintenance of a relationship while the parties were living apart. As a result, the delegate was not satisfied that the parties had established a joint household, however they acknowledged the difficulties of doing so while the parties resided in separate countries, and cultural and religious reasons.  

    Social aspects of the relationship

    The delegate considered the visa applicant’s claims to have become engaged in 2016 during a small family gathering. The delegate noted that the only photos provided depicted the parties in casual attire.

    The delegate found no evidence that the wider community was aware of the parties’ engagement. The delegate found that only one of the photos provided depicted the parties amongst another person and gave them little weight. The delegate accorded little weight to the supporting statements of the visa applicant’s brother in law and relative as they had not had lengthy exposure to the relationship. The delegate placed significant weight on the absence of supporting information from the sponsor’s family and were concerned that no evidence had been submitted to indicate the sponsor’s family have ben involved or notified of the union between the parties.

    Nature of the commitment

    The delegate noted that there was no real evidence the parties had shared quality time to get to know each other better in a manner that would lead to a long term relationship. The delegate noted that the parties claims of regular contact with one another were not supported by the evidence they had submitted which showed minimal contact lacking in depth that did not indicate a meaningful courtship. The delegate also placed significant weight on the fact that the visa applicant did not appear to possess in-depth knowledge about the sponsor at interview.

    The delegate was concerned that the parties’ engagement was orchestrated by the visa applicant’s sister who lives in Australia. The delegate was concerned that the parties’ engagement occurred shortly before the applicant’s departure from Australia to Morocco. The delegate observed that they strongly believed that the application was lodged to provide an opportunity for the visa applicant to migrate to Australia to be with her sister, rather than due to a genuine spousal relationship with the sponsor.

28. Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings.

    Financial aspects of the relationship

29. The review applicant told the Tribunal that he works as a concreter. The visa applicant works as a hairdresser and beautician. The review applicant told the Tribunal that the visa applicant doesn’t earn a lot of money and is financially supported by the review applicant.

30. Overall, the Tribunal had before it limited documentary evidence pertaining to the financial aspects of the relationship. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence with respect to the financial aspects of the relationship. The aforementioned documentary and oral evidence is afforded limited weight.

31. The Tribunal finds that there is no joint ownership of real estate or other major assets, no joint liabilities, limited pooling of financial resources (and certainly none with respect to major financial commitments), no legal obligations are owed between the parties, and only limited sharing of day to day household expenses took place when the parties were together overseas.

    Nature of the household

32. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.

33. The review applicant told the Tribunal about briefly cohabiting with the visa applicant when he has travelled overseas to meet the visa applicant. This was confirmed by the visa applicant in her oral testimony.

34. Overall, the Tribunal had before it limited documentary evidence pertaining to the nature of the household. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence. The aforementioned documentary and oral evidence is afforded limited weight.

35. The Tribunal finds that there is no evidence of joint responsibility for the care and support of children, limited evidence of living arrangements by way of brief cohabitation overseas, and limited evidence of brief sharing of responsibility for housework.

    Social aspects of the relationship

36. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

37. When questioned by the Tribunal, the visa applicant demonstrated only basic knowledge of the review applicant’s son.

38. The Tribunal had before it limited documentary evidence pertaining to the social aspects of the relationship including, but not limited to, travel documentation, statements in support of the relationship and photographs. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence with respect to the social aspects of the relationship. The aforementioned documentary and oral evidence is afforded limited weight.

39. The Tribunal finds that there is limited evidence that the parties represent themselves to other people as being engaged to each other, there is limited evidence of family, friends and acquaintances recognising the parties as being engaged to each other, and there is limited evidence that the parties have undertaken joint social activities.

    Nature of the commitment

40. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see the relationship as a long term one is all aspects to be considered in determining the nature of the person’s commitment to each other.

41. The Tribunal has already found, above, that the parties met in early 2016. The circumstances of the inception and development of the claimed relationship after that is less clear. When the Tribunal questioned the review applicant about the ‘dob-in’ allegation, he said that he thought that the allegation had been made by a male person from Sydney who was in a relationship with the visa applicant, before the review applicant. The review applicant also provided a statement from the visa applicant’s sister to this effect. The review applicant’s evidence was that the visa applicant was estranged from this individual prior to he commencing a relationship with her. The Tribunal was surprised by this as the review applicant provided the Tribunal with a copy of an intervention order application which states that the visa applicant the former partner from Sydney were spending time together at various locations in Victoria on 17 July 2016, just a fortnight or so before the review applicant and visa applicant claim to have got engaged to each other on 5 August 2016. Further, the Tribunal observes also that, according to correspondence from Lobb & Kerr solicitors provided to the Department by the review applicant, the review applicant was still married to another person, Parigina Russo, for all of 2016 (acknowledging that the review applicant claims that this relationship ended in 2014).

1. The Tribunal finds that there is limited evidence that the parties’ have represented themselves as being in a relationship with each other, there is limited evidence that they have cohabitated together during the review applicant’s travel overseas, there is limited evidence that they draw some degree of companionship and emotional support from each other, as there is limited evidence that the parties see the relationship as a long term one.

2. The Tribunal had before it documentary evidence, as outlined above, pertaining to the nature of the persons’ commitment to each other. The Tribunal has paid due regard to such documentation. Further, the Tribunal has duly considered the oral evidence of the review and visa applicant with respect to the nature of the persons’ commitment to each other. The aforementioned documentary and oral evidence is afforded limited weight.

3. Significantly, the Tribunal does not accept the applicants’ claims regarding the inception and development of the claimed relationship. Overall, the Tribunal did not find either of them to be convincing witnesses and the Tribunal does not accept their accounts of the inception and development of their claimed relationship.

4. The Tribunal finds that the evidence before it suggests that although the parties have expressed an intention to marry if the visa is granted, they do not intend to live together as spouses.

5. It is important to observe that the mere fact that a person makes a claim does not establish the genuineness of that claim. It remains for an applicant to satisfy the Tribunal that all of the statutory elements are made out,[1] although the concept of an ‘onus or burden of proof’ has no application to administrative decision-making.[2] While it is inappropriate for the Tribunal to require particular evidence as a precondition for accepting that an applicant’s claims are true,[3] there is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[4] Rather, it is for an applicant to provide evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts.[5] In this case, the applicants have failed to adequately advance their case in sufficient detail to enable the Tribunal to overcome what concerns it does have and establish the relevant facts.

   [1] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

   [2] Sun v MIBP [2016] FCAFC 52 (Sun v MIBP) at [63] per Flick and Rangiah JJ. Also see Sun v MIBP at [6] per Logan J and [65] per Flick and Rangiah JJ; SZLVZ v MIAC at [24] per Middleton J citing Yao-Jing v MIMA (1997) 74 FCR 275 at 288.

   [3] Machmud v MIMA [2001] FCA 1041.

   [4] Sun v MIBP at [69] per Flick and Rangiah JJ; SZLVZ v MIAC citing Prasad v MIEA (1985) 6 FCR 155 at 170.

   [5] Aporo v MIAC (2009) 113 ALD 46; [2009] FCAFC 123 Spender, Moore and Foster JJ and Sun v MIBP at [69] per Flick and Rangiah JJ; SZLVZ v MIAC citing MIMIA v Lat (2006) 151 FCR 214.

6. Having regard to the considerations for a spousal relationship in s.5F and r.1.15A(3) to the degree that those factors may be applied in determining the couple’s future intentions, the Tribunal is not satisfied on the evidence provided that at the time of this decision the couple continue to genuinely intend to live together as spouses. Therefore, the visa applicant does not continue to meet cl.300.216 at the time of this decision. Accordingly, cl.300.221 is not met.

   Is there any impediment to the marriage?

7. Clause 300.221A requires that at the time of decision there is no impediment to the marriage in Australian law. If the applicant or prospective spouse is under 18, the Minister must be satisfied that they will turn 18 before the end of the period within which the intended marriage is to take place, or have an Australian court order issued under s.12 of the Marriage Act authorising the parties to marry. In the latter case, the Minister must be satisfied the marriage will take place: cl.300.221B.

8. There is no evidence before the Tribunal which suggests:

   ·     the parties are in a prohibited relationship; or

   ·     the parties are not of marriageable age; or

   ·     one of the parties to the marriage is under the age of 18 and the requisite court order authorising the parties to marry has not been obtained or is no longer in force.

   ·     the visa applicant is a party to another marriage that is recognised as valid in Australia.

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

   DECISION

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

    P. Wood
    Senior Member