A recent decision by Judge Street of the Federal Circuit Court has provided clarification concerning the circumstances when the Administrative Appeals Tribunal has jurisdiction to hear appeals against the Department's refusals to grant 457 visas. 

It is essential that all RMAs who are assisting clients who have received such refusals, and who are considering whether or not to seek review before the AAT, be aware of this case, Kandel v Minister v Immigration & Anor, (2015) FCCA 2013 (7 August 2015). 

It appears that it has been the case that the AAT and its “predecessor”, the Migration Review Tribunal, has been taking the view, based on the decision of Judge Nicholls in the case of Minister for Immigration v Lee & Ors  (2014) FCCA 2881 (10 December 2014) that it did not have jurisdiction to accept appeals in cases where either there was 1) not, at the time that the application for review is made to the AAT, either an approval of the nomination of an occupation in relation to the 457 applicant in force, or, alternatively, 2)an application for review of a Departmental decision not to approve the nomination made by the sponsor pending before the MRT/AAT.  It also seems to have been the case that the MRT/AAT has been sending out what might be referred to as “Lee letters” when the nomination has not been approved and in force, or a refusal of a nomination has not been the subject of an application for review to the AAT/MRT, informing review applicants of its views that it does not have jurisdiction in these situations.

At least 3 unions who represent some of Australia’s lowest-paid workers are relying on foreign talent to promote their cause.

United Voice employ nine people on 457 visas while two other unions — the Australian Education Union and the Shop Distributive and Allied Employee's Association - have also hired staff on the temporary skilled work visas, according to a report in The Australian.

 “The revelation that multiple unions have employed subclass 457 visa holders is an act of incredible hypocrisy and duplicity given the long-term campaign the union movement has waged against the 457 program,"Assistant Minister for Immig¬ration and Border Protection Michaelia Cash told The Australian.

The Immigration Department has revealed that “workplace relations adviser is the most frequently sponsored occupation’’ among unions, “with the other sponsored occupations being copywriter, organisation and methods analyst, database administrator, and training and development professional’’.

Most of those on union-sponsored 457 visas are from Britain and the US, with workers also coming from India, The Netherlands, Canada and Singapore, answers¬ to a Senate inquiry into Australia’s temporary work visa programs revealed.

The Fairwork ombudsman is trying to make ‘inroads’ into migrant communities through its newly appointed team of Community Engagement Officers, whose aim is to protect foreign workers on the one hand and help deport illegal workers they find along the way, on the other.

The FWO says its recently launched program aims to “foster new relationships with international student bodies and multicultural communities…to ensure migrant workers, overseas workers, international students and employers are aware of their workplace rights and responsibilities,” declared the statement from the FWO.

The program will also be used to uncover illegal workers. In June, the Fair Work Ombudsman joined with the Department of Immigration and Border Protection (DIBP) to form Taskforce Cadena to jointly combat the incidence of fraud and exploitation involving foreign workers in Australia. One of the stated aims of Taskforce Cadena is to utilise intelligence from a range of sources to identify and investigate major targets of interest.

The FWO statement noted that visa-holders now account for 11 per cent of all requests for assistance received by the Fair Work Ombudsman. Last financial year, the Fair Work Ombudsman recovered $1.6 million in underpaid wages and entitlements for visa-holders – up from $1.1 million in 2013-14.

FWO Ombudsman, Ms Natalie James said that the Fair Work Ombudsman has been active in this area for many years and understands that visa holders can face a number of barriers to understanding and enforcing their workplace rights.  “Youth, language and cultural differences, concerns about their visa status all contribute to these barriers and can also make them more vulnerable to exploitation,” she said.

The school which generated about $1million in revenue per year from students was found to have had extensive breaches of regulations governing overseas students, according to a report on the ABC.

It remains unclear what will happen to the visas of 70 students of the school - some who reportedly paid $18,600 per year in tuition fees.

According to the ABC, documents filed with Victorian Civil and Administrative Tribunal (VCAT), indicated the failure of some students to sign in for classes for weeks at a time was not investigated by the school, despite visa requirements that stipulate they must sign in twice a day. It said that the teaching of English language was also a particular concern, with audits from 2010 to 2014 revealing the school failing to comply with VCAA standards.

The Victorian Registration and Qualifications Authority (VRQA) ordered the Melbourne Senior Secondary College (MSSC) to shut down because it failed to comply with a number of matters in the Education Services for Overseas Students Act which included the following:

•Inadequate records on working with children checks for adults overseeing, living with up to 14 students under 18

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