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

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

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.

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Details

Case: [2021] AATA 1561
Decision Date: 1 April 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant Ms Hasnae Sarnane, a Moroccan citizen, a Prospective Marriage (Temporary) (Class TO) visa (subclass 300). The sponsor was Mr Aldo Russo, an Italian national and Australian permanent resident. The core dispute before the Tribunal was whether the parties had a genuine intention to live together as spouses, as required for the visa.

The Tribunal was required to determine if the evidence presented established a genuine and continuing relationship between Ms Sarnane and Mr Russo, and whether they genuinely intended to marry and live together as spouses. This involved assessing the credibility of the parties' claims and the weight to be given to the documentary and other evidence provided in support of their application.

The Tribunal affirmed the decision to refuse the visa. It noted that Mr Russo had admitted Ms Sarnane was "shocked" by his proposal, and that despite the parties claiming an engagement ceremony in Australia and a traditional party in Morocco, the evidence presented was insufficient to establish a genuine relationship. Crucially, the Tribunal highlighted that Mr Russo was married to another person, and Ms Sarnane was in a relationship with another person, which cast significant doubt on the genuineness of their claimed intention to marry each other. The Tribunal concluded that the visa applicant did not satisfy the criteria for the grant of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the parties have a genuine intention to live together as spouses. 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. The sponsor and review applicant Mr Aldo Russo was born in October 1965. He is a national of Italy and an Australian permanent resident. The review applicant is a friend of the visa applicant’s brother in law. The visa applicant’s sister lives in Australia. 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. 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 +212 697-634742 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?

Decision

Reasons for decision

For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.P. WoodSenior Member

Ratio Decidendi

Legal Principle Established

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