Ganab (Migration)

[2023] AATA 3764

Ganab (Migration) [2023] AATA 3764 (8 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jorge Ganab

REPRESENTATIVE:  Mrs Teresita Alivio

CASE NUMBER:  2120192

HOME AFFAIRS REFERENCE(S):          BCC2019/6828809

MEMBER:Warren Stooke AM

DATE:8 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 8 November 2023 at 5:04pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – dependant family member husband – applicants separated – primary applicant wife’s withdrawal of application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 485.311

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 on 14 December 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 23 December 2019. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 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.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.311 of Schedule 2 to the Regulations because the delegate was satisfied that the primary applicant had withdrawn their Temporary Graduate (class VC) ( Post Study Work Stream ) (subclass 485) visa, and the applicant is not a person who satisfies, or has satisfied, the relevant primary criteria. Accordingly, the delegate determined that the dependant applicant does not meet the criteria for the grant of a dependant Temporary Graduate (class VC) ( Post Study Work Stream).

4. The applicant appeared before the Tribunal on 1 November 2023 to give evidence and present arguments.

5. The applicant confirmed to the Tribunal that a copy of the delegate’s decision was provided to the Tribunal with the application for review.

6. The applicant stated that the visa application was refused because he understood the visa of the main applicant was withdrawn and that he was no longer included or a family member.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is a member of a family unit, who is the holder of a 485 visa in accordance with the requirement of cl 485.311.

10. The Tribunal explained to the applicant the requirements of cl. 485.311, as follows:

    (a)  is a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and made a combined application with that person; or

    (b)  is a member of the family unit of a person who holds a Skilled (Provisional) (Class VC) visa on the basis of satisfying the primary criteria for the grant of a Subclass 485 visa.

11. The Tribunal asked the applicant if he understood the requirements of cl. 485.311 and he responded: “Yes”.

12. The Tribunal asked the applicant if he was a member of a family unit of the primary applicant, Ms Arlette Ganab, and the applicant responded: “Yes, Member, I am her husband”.

13. The Tribunal asked the applicant, if he was aware that Ms Ganab had withdrawn her 485 Graduate Temporary visa application on 29 September 2021 and the applicant responded: “Not aware that she withdrew her visa on that date”.

14. The Tribunal asked the applicant if he understood the change in marriage status to ‘separated’ and the applicant responded: “Yes understand but not informed about it”.

15. The Tribunal asked the applicant if he was currently separated or divorced and he responded: “We are not living together, but not yet get a divorce”.

16. The Tribunal asked the applicant if there was anything he wanted to submit to the Tribunal and he responded that on 24 March 2019 he fought with his wife (the primary applicant) and he separated, but continued to support her to finish her studies.

17. The applicant stated that on 15 December 2021 he received the refusal and was surprised, as he was not expecting this and stated: “If only she had told me about the withdrawal, I would have applied as I am a Nurse in the Philippines and I want to study here”.

18. The Tribunal informed the applicant that the Tribunal only has jurisdiction on matters subject to the appeal and that any other matters would need to be taken up with the Department.

19. The applicant stated that he just wanted to say that he was caught unawares and empty handed and that his mother has stage 4 cancer. He also stated that he was the only support for their child in the Philippines.

20. The applicant stated that he has been hurt and that he is in an unfortunate situation, when he caught his wife being unfaithful and that he let her finish her studies with support.

21. Whilst the Tribunal has empathy for the plight of the applicant, the Tribunal finds that the applicant does not satisfy cl 485.311 for the grant of a 485 visa, as the primary applicant does not hold such a visa.

22. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Warren Stooke AM
    Member