Christopher Levingston Blog

I have been approached by a colleague who has slipped through the looking glass and is now stuck at the mad hatters tea party for eternity and is destined to cycle back and forth between the MRT and DIBP.

Here is the story so far ( we have the permission of the client to publish these details):

Dear XXXX,

I represent MMMMMMMM Pty Ltd in various S/C 457 Nominations and the associated Visa Applications for their employees. Undoubtedly you are aware that the current determination by the DIBP is that the YYYYYYYYY Restaurants operated by MMMMMMM Pty Ltd are Fast Food outlets. Consequently they are excluded from nominating the occupations of Cook or Restaurant Manager under the 457 Program.

Last year 6 matters (2 nominations and their 2 associated visa applications + 2 visa applications) regarding this specific 'fast food' policy classification were taken to the Migration Review Tribunal for review. In August and September 2014 these matters were reviewed by the Tribunal and it was determined:-

1.       the 2 nomination decisions were set aside with a substituted decision that the nominations are approved (on the determination that MMMMMMM Pty Ltd was operating restaurants)

2.       the associated 2 visa applications for those nominations were remitted for further consideration in light of the approval of the nominations

3.       the other 2 visa applications were remitted with the consideration that MMMMMMM Pty Ltd was operating restaurants

Having received a confirmation from the Tribunal that MMMMMMM was operating Restaurants (except for one of their establishments which is considered a fast food outlet) I requested that the DIBP reconsider their classification of MMMMMMMM Pty Ltd. Last week it was communicated to me via email '... We have confirmed with our Policy colleagues that the MRT decisions are not judicial decisions which bind the Department in any future applications'.

Today the following developments occurred in relation to the matters which were remitted by the Tribunal:-

1.       the 2 nominations which were approved by the Tribunal were refused by the DIBP and the associated visa applications refused for not having an associated approved nomination

2.       the 2 visa applications which were remitted received a letter in relation to the pending nominations raising the issue that MMMMM Pty Ltd is operating fast food establishments and  are excluded from the 457 Program. It is expected that although the fast food issue was addressed in the visa applications that were remitted to the DIBP,  as the 'nominations' are new applications (obviously because the original approved ones had expired during the period of the appeal) the decisions of the MRT will not be taken into account and the nominations and therefore the visa applications will be refused.

Additionally another 457 visa application which was originally refused based of 'skill/qualification requirements' which was remitted earlier this year also received a refusal in relation to the associated nomination on the 'fast food' issue and the associated visa was of course also refused.

It is adamantly clear that although the Tribunal have on four separate occasions determined that MMMMMM Pty Ltd is operating Restaurants Departmental Policy does not share the same sentiment and does not want to take into consideration the decisions of the Tribunal.

In one of the refusals received today the Delegate referred to various social media articles in support of the Departments classification that MMMMMMM Pty Ltd is operating  fast food outlets. It is comforting that weight is placed on social media articles as opposed to four unanimous decisions from the Migration Review Tribunal.

The manner in which the DIBP is managing this 'fast food' issue specifically with my client and in light of the determinations of the MRT is disgraceful. It undermines the Tribunal, the process of appeal and the rule of law. Importantly, it wastes the resources of the Commonwealth. It is expected that after four decisions the Policy classification of MMMMMMM Pty Ltd would be changed to reflect the Tribunals decisions. I respectfully request that this matter be considered further. I am open to liaise with the DIBP in finding a resolution to this matter otherwise appeals will have to be lodged on every application refused on this point and the discontent in regards to the management of this issue voiced.

I think it is fair to say that DIBP has locked itself into what in judicial terms is referred to as “Application of a rule or policy without regard to the merits of the case”

What concerns me is that Brisbane seems to have dug a policy hole for itself where it simply cannot admit they have got it wrong.

The role of policy is not to supplant the relevant statutory provisions but to act as a guide to decision makers so as to ensure that there is consistency in the decision making process.

The policy is not a licence to be stupid or irrational.

Whilst I accept that the doctrine of stare decisis (policy of courts to abide by or adhere to principles established by decisions in earlier cases) does not underpin the decisions of the MRT, they can neverthess inform DIBP to such an extent that the relevant policy position may be varied.

Can someone please get Brisbane DIBP to wake up to itself?

Do you have any examples of Brisbane getting it wrong and then your client wins at the MRT and then DIBP (Brisbane) refuses to in effect implement the findings of the MRT?