Readers of this blog may be aware that in the weekly newsletter that our sister organization, the Migration Institute of Australia, released on 24 February, it reported that it was receiving a large number of complaints from RMAs that nominations of occupations for  457 visas are being refused on the basis that the position for which the sponsoring employer has nominated  is “not genuine”. 

It is therefore timely to review a recent decision of the Federal Court of Australia that dealt with the question of how the “genuineness” of a position is to be determined.  That case was Cargo First Pty Ltd v Minister for Immigration and Border Protection (2016) FCA 30 (3 February 2016). 

(I would like to note that our colleague at the Migration Alliance, Chris Levingston, acted for the sponsoring company in these proceedings at the Federal Circuit Court level, and thus presumably also before the Federal Court!) 

The AAT has asked Migration Alliance to distribute the following message:

AAT registry services have moved to Level 6 at 83 Clarence Street, Sydney

Registry services at our 83 Clarence Street office are now available from Level 6. 

What is the story if you submit an application for merits review to the Administrative Appeals Tribunal, and there is some “irregularity” relating to payment of the prescribed fee? 

For example, what is the situation if the application is made on a “paper form” and the part of the form calling for the signature of the credit card holder to authorize payment of the fee is not actually signed? 

What happens if your client is granted a reduction of the application fee on grounds of financial hardship but fails to pay the fee within the time specified by the Tribunal? 

DIBP has warned that sc457 applications including sponsorship, nomination and the visa application must be decision-ready or risk refusal.

Responding to Migration Alliance enquiries, a spokesperson for the Department of Immigration has stated that because the lodgement of incomplete applications has been an ongoing issue for the 457 processing network, the department has ‘adopted the approach of making decisions on incomplete applications at time of initial assessment.’

This means an application could be refused the very next working day, after lodgement.

Migration Alliance enquired with the DIBP upon seeing a report that an applicant who lodged their visa late on Friday was refused the Sponsorship application on midday Monday as the required evidence was not uploaded with the application.

The latest response from the DIBP to the Migration Alliance is contrary to a report which said that “The MIA [who also enquired on the matter]…was advised that [the sponsorship application refusal] may have occurred as new staff were working on SBS applications.”

Article by RMA Michael Jeremy

Partner visas make up approximately 25% of the permanent visas granted in Australia, each year. In the last migration program year this was about 48,000 places.

For Australia, that would be a sizeable inland town.