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Sponsored Visas: Can You Substitute Nomination from Different Employer?

Hooray! Or “boo”!

I wasn’t sure if there would be another opportunity for a quiz. But there is!

And no, you cannot have a break to fashion a hat out of aluminum foil to protect yourselves from surveillance from televisions, microwave ovens or smart phones while you mull over the answer  (fortunately for all of us here in Australia that form of surveillance is only happening at Trump Tower in New York City!)

So here is the quiz:

Suppose you have a client who has applied for a Subclass 187 visa, a Regional Employer Nomination (Permanent) visa.

Suppose further that the applicant is nominated for a position by an employer. The nomination is refused on the basis that incorrect information was provided in the nomination application. An application for review of the refusal of the nomination is then made to the Tribunal.

The visa application is then refused by the Department, on the basis that sub-clause 187.233(b) of Schedule 2 has not been satisfied.  This sub-clause requires that the position to which the application relates must be the position to which the “declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.  (A declaration of this kind is one in which it is stated that the position to which the application relates is a position that has been nominated under 5.19 of the Migration Regulations.

The Tribunal then holds (first!) a hearing concerning the refusal of the visa application.  At this hearing, the applicant informs the Tribunal that he is no longer working for the business that originally “sponsored” him through an employer nomination, and that business has in fact not been operating for some time.  He also tells the Tribunal that his new employer is perfectly happy to lodge a new employer nomination for the applicant “in the near future”.

Then, shortly after the hearing concerning the refusal of the visa application, the Tribunal affirms the refusal of the original employer nomination.

Then, the Tribunal provides the applicant with an opportunity to comment on the information that the refusal of the employer nomination has been refused.

The applicant responds by saying that his new employer has lodged a new employer nomination with the Department. The applicant asks the Tribunal for further time to lodge a new visa application relating to the new employer nomination.

The Tribunal refuses the applicant’s request for more time and affirms the Department’s decision to refuse the visa application.

In short: the employer nomination is refused by the Department and that refusal is affirmed by the Tribunal. The visa application is refused, and review is sought before the Tribunal. The applicant tells the Tribunal that he has a new employer who is prepared to lodge a new nomination. The applicant wants more time to lodge a new application relating to this new nomination.

Can that save the situation?

According to the Federal Circuit Court, the answer is “No!”.  (If you skipped down to this answer, then shame on you!)

Why? What is the basis of this decision?

The answer, as given by the Tribunal and as affirmed by the Federal Circuit Court (see Deepti & Ors v Minister for Immigration & Anor (2017) FCCA 449 (10 March 2017) is that a visa application cannot be granted on the basis of a new nomination lodged by a different employer.

In other words, the employer nomination and the visa application must “match up”.  If a visa applicant wants to rely on a nomination from a new employer, the applicant must make a fresh visa application based on that nomination (which of course must be approved).

A second decision from the Federal Circuit Court to the same effect of Deepti  was Hasan & Ors v Minister for Immigration & Anor  (2016) FCCA 1049 (13 May 2016).

For those of you who had this all figured out, you may take this opportunity to congratulate yourselves for your knowledge of the Migration Regulations.

And for those of you who felt compelled to put on a hat made of aluminum, it’s your choice to decide whether or not to keep wearing it!

Questions: This email address is being protected from spambots. You need JavaScript enabled to view it.  

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Comments

  • Guest
    James Wednesday, 15 March 2017

    There is a frequent situation where the employer closes down or no longer has a need for them prior to the 8-9 months it is taking to obtain a decision by DIBP. Unlike the 457 program where the applicant can seek a refund of the VAC there doesn't appear to be much joy for 186/187 applicants. Interested to know if anyone has obtained a refund of the 186/187 VAC where the applicant has withdrawn following a nomination withdrawal/refusal.

  • Guest
    Preeti Friday, 17 March 2017

    I want to ask about 489 skilled visa. I applied my permanent residence and my file was opened two weeks ago.
    Is any affect of on my file?

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Guest Thursday, 21 September 2017
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