Matharu (Migration) - [2023] AATA 4444

Matharu (Migration) [2023] AATA 4444 (1 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tarsem Singh Matharu
REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)
CASE NUMBER:  2115094
HOME AFFAIRS REFERENCE(S):          BCC2019/6937313
MEMBER:Warren Stooke AM
DATE:1 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 1 November 2023 at 12:20pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – member of the family unit – primary applicant’s 485 visa ceased – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 October 2021 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 20 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.
The delegate refused to grant the visa because the applicant did not satisfy cl 485.311 on the basis that the applicant is a member of the family unit of a person holding a 485 visa (DHALIWAL, Mandeep Kaur), to whom a 485 visa was issued on 20 August 2019 and which was due to cease on 20 February 2021. As such, the delegate’s decision was based on not having met the criteria for the grant of a Temporary Graduate (Graduate Work Subsequent Entrant) visa.
The applicant was invited to appear before the Tribunal on 31 October 2023, however on 25 September 2023 the applicant requested that the matter be determined without a recourse to a hearing on the basis of the documents that had been submitted by the applicant.
The applicant was represented in relation to the review.
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 applicant pursuant to cl. 485.311 is a member of a family unit where the primary applicant has been granted and is the holder of a 485 Graduate Temporary visa.
The applicant was granted a Bridging Visa A on 31 December 2019 that has an obligation to maintain health insurance in accordance with condition 8501.
The Tribunal was provided with evidence of a Relationship Certificate, Registered…

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: [2023] AATA 4444
Decision Date: 1 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Tarsmen Singh Mathuru, who sought review of a decision not to grant him a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate). The applicant had applied for this visa as a subsequent entrant, relying on his relationship with Ms Mandeep Kaur Dhaliwal, the primary applicant. Ms Dhaliwal had been granted a subclass 485 visa, but this visa subsequently ceased.

The central legal issue before the Tribunal was whether the applicant qualified as a member of a family unit in relation to the primary applicant, Ms Dhaliwal, at the time of the decision, as required by clause 485.311 of the Migration Regulations. This clause mandates that a subsequent entrant must be a member of the family unit of the primary applicant who holds a subclass 485 visa. The applicant contended that his former agent failed to notify him of requests for further documentation, leading to his inability to provide necessary information before the primary applicant's visa ceased.

The Tribunal acknowledged the applicant's circumstances but found that the critical factor was the status of the primary applicant's visa at the time of the decision. As Ms Dhaliwal's subclass 485 visa had ceased, the applicant could no longer satisfy the requirement of being a member of the family unit of a current subclass 485 visa holder. Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a subclass 485 visa. The Tribunal affirmed the decision not to grant the applicant 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 applicant pursuant to cl. 485.311 is a member of a family unit where the primary applicant has been granted and is the holder of a 485 Graduate Temporary visa. The applicant was granted a Bridging Visa A on 31 December 2019 that has an obligation to maintain health insurance in accordance with condition 8501. The Tribunal was provided with evidence of a Relationship Certificate, Registered in Victoria on 2 December 2019 between the applicant Mr Tarsmen Singh Mathuru (DOB: 21.10.1995) and Mandeep Kaur Dhaliwal (DOB: 15 October 1992) with Registration No: 5029009/19 and a common address of Craigieburn, Victoria. The Departmental file contained information, that has been confirmed by the applicant, that the primary applicant, Ms Dhaliwal, was granted a 485 Graduate Temporary Visa on 20 August 2019 that ceased on 20 February 2021. On 25 September 2023, the applicant provided a submission to the Tribunal that included the following information:“a) I applied for a Temporary Graduate Subclass 485 subsequent entrant visa on 31December 2019.b) Further, as my application was assessed, the department had requested for further documents and evidence in regards to my application and sent two requests in April 2020 and September 2020.c) However, I was not notified by my former agent about these requests. I was in the belief that my agent is working on my application, and I need not worry about it.d) Later, as I myself enquired about my visa with my agent, then he informed about the request. However, by the time I found out about the requests, it was already too late.e) Consequently, the primary applicant’s 485 visa ceased on 20 February 2021. As such, my visa got refused on 12 October 2021. Therefore, I was not able to submit any documents further.” Whilst the Tribunal can empathise with the plight of the applicant, matters pertaining to the behaviour of the applicant’s agent, can be referred to the Office of the Migrations Agents Registration Authority, by the applicant. On the basis that the applicant is not a member of a family unit, where the primary applicant is the holder of a Skilled Temporary Graduate visa 485, at the time of decision, the Tribunal is satisfied that the required criteria for the grant of a 485 visa has not been met. The Tribunal finds that the applicant does not satisfy cl 485.311 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 The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Warren Stooke AMMember

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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