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

1. 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).

2. 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.

3. 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.

4. 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.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. 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.

10. 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.

11. 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 31

    December 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.”

12. 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.

13. 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.

14. The Tribunal finds that the applicant does not satisfy cl 485.311

15. 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

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

    Warren Stooke AM
    Member