Nanayakkara Vasan Godakandage (Migration)

This matter concerned an application for review before the Tribunal concerning subclass 407 (Training) visas. The primary applicant, Ms. Nanayakkara Vasan Godakandage, had initially applied for the visa based on a nomination by Clearword Holdings Pty Ltd, which subsequently withdrew its nomination. The Department refused the visa on 6 October 2022, as there was no approved nomination at that time, nor was there a pending application for review of a decision not to approve a sponsor or nomination. The Tribunal noted that while another employer, Clover Fresh Food Pty Ltd, had offered a nomination, this had not been lodged by the date of the refusal. The second and third applicants, who were family members, could not meet the secondary visa criteria as they were not members of the family unit of a subclass 407 visa holder, nor did they meet the primary criteria in their own right.

The primary legal issue before the Tribunal was whether it had jurisdiction to review the decision to refuse the subclass 407 visa to the first applicant. This depended on whether the application for review was validly made under section 338 of the Migration Act 1958 (Cth) and regulation 4.02(4) of the Migration Regulations 1994 (Cth). Specifically, the Tribunal had to determine if the first applicant was "sponsored" by an "approved sponsor" at the time of the primary refusal, or if a review of a decision not to approve a sponsor was pending. A further issue was the fate of the applications for the second and third applicants, who were family members.

The Tribunal reasoned that for the application for review to be valid in relation to the first applicant, the requirements of section 338(2)(d) of the Act had to be met. As there was no approved nomination by an approved sponsor at the time of the refusal, and no pending review of a decision not to approve a sponsor, the Tribunal found that the delegate's decision was not a reviewable decision. Consequently, the application for review was not properly made in relation to the first applicant, and the Tribunal lacked jurisdiction. For the second and third applicants, the Tribunal affirmed the decisions to refuse their visas, as they failed to meet the criteria for being family members of a subclass 407 visa holder and did not meet the primary criteria themselves.

Despite lacking jurisdiction over the primary applicant's review, the Tribunal considered the applicants' request for Ministerial intervention. The Tribunal noted that section 351 of the Act provides the Minister with a personal, non-compellable discretion to intervene. Accordingly, the Tribunal considered it appropriate to refer the matter for Ministerial intervention consideration.