ADABALA (Migration)

[2023] AATA 1495

ADABALA (Migration) [2023] AATA 1495 (23 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Surya

Chandra Rao Adabala

Ms Geetha Adabala
Miss Kavyasree

Adabala

Master Saketram Adabala

REPRESENTATIVE:  Mr Manoj Nanda (MARN: 1568823)

CASE NUMBER:  2002459

HOME AFFAIRS REFERENCE(S):          BCC2019/5687020

MEMBER:Alison Mercer

DATE:23 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

Statement made on 23 May 2023 at 11:09am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – systems administrator – subject of approved position nomination – related nomination application refused and no jurisdiction to review – no response to tribunal’s invitation to comment – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 1, item 1240(3)(f), Schedule 2, cl 482.212(1)

CASES
Hasran v MIAC [2010] FCAFC 40
MIAC v Li (2013) 249 CLR 332

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 22 January 2020 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 11 November 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Systems Administrator.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations, which required that he was the subject of an approved nomination by his Australian employer. The delegate found that the nomination of the applicant by his employer had not been approved. The delegate therefore found that the applicant did not meet the requirements for a subclass 482 visa in the Short Term (or any other) stream. The delegate also refused to grant the second, third and fourth named applicants subclass 482 visas as the delegate found that they could not satisfy the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 482 visa, and there was no evidence that they met the primary visa criteria in their own right.

4. The Tribunal received a review application from the applicants on 10 February 2020. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Manoj Nanda, as their representative and authorised recipient for correspondence.

5. On 27 April 2023, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 25 May 2023.

6. On 28 April 2023, the Tribunal wrote to the applicants again via their agent to invite them, pursuant to s.359A of the Act, to comment on or respond to potentially adverse information held by the Tribunal. The Tribunal advised the applicants that the particulars of the information were that:

   ·at the time the applicant made his visa application on 11 November 2019, he was nominated by his employer, Arvensys Technologies Pty Ltd, as a Systems Administrator, and the second, third and fourth named applicants were included as members of his family unit;

   ·the Department rejected this application on 22 January 2020 because the delegate found that the applicant did not meet cl.482.212 of Schedule 2 to the Migration Regulations as he was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that the applicant’s employer’s nomination of him for the occupation of Systems Administrator had not been approved by the Department;

   ·the delegate refused to grant the second, third and fourth named applicants subclass 482 visas as they did not meet the secondary visa criteria requiring them to be  members of the family unit of a person who held a subclass 482 visa;

   ·they applied to the Tribunal on 10 February 2020nfor review of the Department’s decision to reject their subclass 482 visa applications;

   ·the Tribunal’s records indicated that Arvensys Technologies Pty Ltd lodged an application for review of the decision to refuse its nomination with the Tribunal, but that the Tribunal made a decision on 30 June 2021 that it had no jurisdiction to review the Department’s decision to refuse to approve the employer’s nomination of the applicant because the employer company withdrew its review application on 30 June 2021; and

   ·accordingly, there was currently no approved nomination of the applicant by Arvensys Technologies Pty Ltd, and the decision to refuse the nomination was not under review by the Tribunal.

7. The Tribunal advised the applicants that this information was relevant to the review because, subject to their comments or response, it indicated that:

   ·the applicant was not the subject of an approved nomination, as required by cl.482.212(1) and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the primary applicant met cl.482.212(1) at the time of decision;

   ·the second, third and fourth named applicants were not family unit members of a person who held a subclass 482 visa; and

   ·there was no evidence that they met the criteria in the other streams of the subclass 482 visa other than the Short Term stream.

8. The Tribunal further noted that a subclass 482 visa application was linked to the original nomination, and therefore cl.482.212(1) could not be met on the basis of a subsequently lodged and approved nomination, either by the original employer, or a new nomination by another employer. It invited the applicants to give comments or respond to the above information by 12 May 2023. The Tribunal advised the applicants that if it did not receive their comments or response within the period allowed or as extended, the Tribunal might make a decision on the review without taking any further action to obtain their views on the information, and they would also lose any entitlement they might otherwise have had to appear before the Tribunal to give evidence and present arguments, and the hearing scheduled for 25 May 2023 would be cancelled.

9. The Tribunal did not receive a response or comments from the applicants or their agent by 12 May 2023, nor did it receive a request for an extension of time to provide these. The Tribunal has received no further communication from them to date. The Tribunal is satisfied that its s.359A letter of 28 April 2023 was sent to the email address nominated by the applicants in their review application. There is no evidence from the Tribunal’s records that its email was not delivered or was undeliverable.

10. The applicants have not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3), the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal therefore cancelled the hearing scheduled for 25 May 2023.

11. The Tribunal has considered whether to defer its decision for a further period, but – in view of the confined nature of the criterion in dispute, the fact that the Tribunal sent the applicants a s.359A letter about the criterion in dispute, and the fact that the applicants did not respond to the s.359A letter despite being advised that they would lose their entitlement to a hearing and having the assistance of a registered migration agent – the Tribunal has elected not to do so and instead has proceeded to make its decision on the available evidence. It considers it reasonable to do so in these circumstances, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

12. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    Requirement for an approved nomination

13. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

14. Specifically, the above subclause requires that the nomination identified in the application has been approved under s 140GB. In effect, this means the visa application is linked to the one nomination (the original nomination), and this criterion could not be met on the basis of a subsequently lodged and approved nomination. Only nominations relating to the applicant for a subclass 482 visa are capable of satisfying this requirement.[1] 

    [1] The application requirements in Sch 1 item 1240(3)(f) require identification of a nomination application in relation to the applicant for a Subclass 482 visa in a stream.

15. In this case, it is not disputed that the applicant is not the subject of an approved nomination by his original nominating employer, Arvensys Technologies Pty Ltd, as that nomination application was not approved by the Department, and the Tribunal (differently constituted) made a decision that it had no jurisdiction to review that refusal decision on 30 June 2021 as the company had withdrawn its review application.

16. Given these reasons, the Tribunal finds that the requirements of cl 482.212(1) are not met and the applicant does not meet the criteria for a subclass 482 visa.

17. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

18. The Tribunal must also affirm the decision not to grant the second, third and fourth named applicants subclass 482 visas, as they do not meet the secondary visa criteria requiring them to be members of the family unit of a person who holds a subclass 482 visa, and there is no evidence that they meet the primary visa criteria in their own right.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Alison Mercer
    Member