Sanam (Migration) - [2024] AATA 396

Sanam (Migration) [2024] AATA 396 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sarika Goud Sanam
Mr Hari Prasad Thalla
Miss Adhithi Krishna Thalla
Miss Jahnavi Thalla
REPRESENTATIVE:  Mr John Preston Young (MARN: 9251554)
CASE NUMBER:  2302452
HOME AFFAIRS REFERENCE(S):          BCC2021/298667

MEMBER:R. Skaros
DATE: 26 February 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision under review.

Statement made on 26 February 2024 at 10:50am

CATCHWORDS
MIGRATION – Skilled Employer Sponsored Regional (Provisional) (Class PE) visa – Subclass 494 - Skilled Employer Sponsored Regional (Provisional) – no approved nomination – no hearing for the nomination review application – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140, 351, 359, 363
Migration Regulations 1994, Schedule 2, cl 494.213; r 2.75
CASES
Hasran v MIAC [2010] FCAFC 40
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 18 February 2023 to refuse to grant the applicants Skilled Employer Sponsored Regional (Provisional) (Class PE) Subclass 494 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 1 March 2021. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy the requirement in cl 494.213(1) as the nomination in relation to her had not been approved. The secondary applicants were refused because they were not members of the family unit of a person who holds a Subclass 494 visa. A copy of the delegate’s decision record was provided with the application for review.
The applicants were represented in relation to the review.
On 14 November 2023, the Tribunal wrote to the applicants pursuant to s 359A of the Act and invited them to comment on or respond to adverse information. The applicant responded by way of a statement.
On 9 January 2024, the Tribunal wrote to the review applicants by letter advising that it had considered all the material before it relating to their application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 29 January 2024.
On 22 January 2024 the Tribunal was advised in writing that the review applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This advice was from the applicant’s authorised representative. The representative attached the statement from the applicant and requested the Tribunal, if it was minded doing so, to refer the matter to the Minister under s 351 of the Act.
This matter has been determined on the evidence available to the Tribunal.
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 satisfies the requirements of cl 494.213(1) which requires that; the nomination identified in the application has been approved under s 140GB of the Act; the person who made the nomination was an approved work sponsor at the time the nomination was approved; and the approval of the nomination has not ceased under reg 2.75B.
The applicant in this case applied for the visa on the basis of a nomination lodged with the Department by SAAS Value Pty Ltd in the Employer Sponsored stream. The nomination was refused by the Department on 15 December 2022 as the delegate found there was adverse information known to Immigration about the nominator or a person associated with the nominator. The nominator applied for review of that decision, however, on 14 November 2023, the Tribunal affirmed the Department’s decision to refuse the nomination.
On 14 November 2023 the Tribunal wrote to the applicants, pursuant to s 359A of the Act, informing them of decision in relation to the nomination which the Tribunal explained was relevant to the issue of whether the nomination identified in the visa application had been approved. In response to this information, the applicant provided a statement in which she stated the following:
·She accepts that to be granted the Subclass 494 visa she needs an approved nomination by SAAS Value Pty Ltd.
·She accepts that the Tribunal has affirmed the Department’s decision to refuse the nomination.
·As the nominee she was not invited to attend a formal hearing for the review of the nomination by SAAS Value Pty Ltd and she believes that this was a denial of procedural fairness.
·The delegate made a decision to refuse the visa application on the basis that she did not meet cl 494.213 for the grant of the Skilled Employer Sponsored (Regional) Provisional visa.
·She does not want to withdraw her review application and the Tribunal should make a recommendation to the Minister under s 351 of the Act.
·She was sponsored by SAAS Value Pty Ltd as a Management Organisation Analyst (224712). She is a specialist in this field and a recommendation could be made the Minister grant her the Subclass 494 visa.
The applicant’s response indicates that she understands the issue in the review, being that the nomination by SAAS Value Pty Ltd identified in the visa application must have been approved for her to satisfy the requirement in cl 494.213. The applicant has conceded that she cannot satisfy that requirement.
The applicant contends that she was denied procedural fairness because she was not invited to attend the hearing for the review application made by SAAS Value Pty Ltd in relation to the refusal of the nomination. The Tribunal notes, however, that no hearing was conducted in relation to that review as SAAS Value Pty Ltd had lost their right to a hearing. The application for review of the decision to refuse the nomination was lodged by SAAS Value Pty Ltd, being the applicant that had standing to lodge that review. SAAS Value Pty Ltd failed to respond to an invitation to comment on or respond to information which was sent to them pursuant to s 359A of the Act. Consequently, s 359C applied and, pursuant to s 360(3), SAAS Pty Ltd was not entitled to appear before the Tribunal. The effect of s 363A of the Act is that SAAS Pty Ltd had no entitlement to a hearing and the Tribunal had no power to permit them to appear.[1] The decision to refuse the nomination by SAAS Pty Ltd was ultimately affirmed by the Tribunal, and the applicant was informed of the outcome and invited to comment on that information. The Tribunal is satisfied that any procedural obligations owed to the applicant have been duly complied with. In the circumstances, the Tribunal does not consider that the applicant has been denied procedural fairness.
[1] Hasran v MIAC [2020] FCAFC 40
As noted above, the issue in this review relates to whether the nomination identified in the application has been approved. The evidence before the Tribunal, which the applicant has conceded, is that that the nomination made by SAAS Pty Ltd which relates to her has not been approved. Consequently, the applicant cannot satisfy the requirement in cl 494.213(1)(a) for the grant of the visa. Therefore, cl 494.213(1) is not met and the decision under review must be affirmed.
The secondary applicants applied for their visas on the basis of being members of the family unit of the first named applicant. As the first named applicant does not satisfy a criterion for the grant of the visa, it follows that the secondary applicants are unable to satisfy the secondary criteria for the grant of the visa.
The applicant has requested the Tribunal to consider referring the matter to the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The Tribunal has considered the applicant’s request, however, other than the applicant’s submission about her specialist skills as a Management Organisation Analyst, there is limited information before the Tribunal about the applicant’s circumstances and whether they would come within the types of circumstances set out in the ministerial guidelines relating to the discretionary power under s 351 in the Act. For these reasons, the Tribunal will not refer the matter to the Minister. However, the Tribunal notes that it is open for the applicant to make a request directly to the Minister, for which she can provide comprehensive submissions and supporting documents about her and her family’s circumstances.
DECISION
The Tribunal affirms the decision under review.
R. Skaros
Senior Member