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A 457 case from the Federal Circuit Court that all RMAs need to know about
Toward the end of last year, in December 2014, the Federal Circuit Court (per Judge Nicholls) handed down an important decision concerning the scope of the MRT’s jurisdiction to review decisions of the Department concerning applications for 457 visas. The Court’s judgment was delivered in the case of Minister for Immigration v Lee & Ors (2014) FCCA 2881 (10 December 2014) and can be reviewed at the following link:
http://www.austlii.edu.au/au/cases/cth/FCCA/2014/2881.html
It is essential that all RMAs consider the implications of this decision when advising their clients whether to proceed with an appeal in the MRT against the refusal of a 457 application.
The outcome of the case turned on the operation of clause 2.75 of Schedule 2 of the Migration Regulations. This clause contains provisions which govern the period during which the “nomination” or “sponsorship” of an applicant for a 457 visa remains in force. The sub clause of clause 2.75 which was relevant in the Lee case was sub clause 2.75((2) (b), which provides that a nomination may cease “12 months after the day on which the nomination is approved”.
In the particular circumstances of the Lee case, clause 2.75 had the effect of causing the prospective sponsoring employer’s nomination of the visa applicant to work in the occupation of a “Marketing Specialist” to cease. The evidence in the case was that the nomination of the visa applicant had been approved on 8 July 2010. The application for the 457 visa was submitted to the Department by the visa applicant on 28 June 2010. However, on 23 October 2012, the application was refused by a delegate of the minister on the basis that the nomination had expired on 8 July 2011 (12 months after it had been approved).
An appeal was taken to the MRT against the refusal of the 457 application. The result of that appeal was that the Tribunal member found that the nomination of the applicant had been granted for a period of 4 years. On the basis of that conclusion, the MRT found that the applicant met the criteria for the grant of the 457 visa, and remitted the matter to the Department with a direction to that effect. The Department then appealed to the Federal Circuit Court for review of the Tribunal’s decision.
On appeal, the Federal Circuit Court concluded that the MRT had erroneously concluded that the sponsorship nomination had remained in force for a period of 4 years after grant. The Court’s judgment recites that the evidentiary basis on which the Tribunal relied for making its finding that the sponsorship nomination was in force for a period of 4 years was not clear from the record of the MRT proceedings. However, the Court found that whatever this evidence may have been, it was ultimately irrelevant, as no evidence could “override” the effect of clause 2.75. On that basis, the Court held that the sponsorship nomination of the visa applicant had ceased on 8 July 2011 – critically, on a date before the appeal was taken to the MRT.
The Court’s determination that the nomination had ceased was fatal to the visa application on 2 separate grounds.
First, the fact that the nomination had ceased effectively deprived the MRT of jurisdiction to review the refusal of the 457 visa application. The Court observed that under section 338(2) (d) of the Migration Act, a decision of the Department is only “MRT-reviewable” if the visa applicant is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made. Since the sponsorship had ceased before the application to the MRT for review of refusal of the grant of the visa was made, the Court held that the MRT had no jurisdiction to hear the case in the first instance. Therefore, the MRT’s decision to remit the matter to the Department was found to be void.
Secondly, the Court found that the MRT’s determination that the visa applicant had satisfied the criteria for the grant of a 457 visa was incorrect. The criteria for the grant of a 457 visa (as provided in clause 457.233(4) (a) (II) specify that the sponsorship nomination must not have ceased under clause 2.75 at the time of decision. Since the visa applicant’s sponsorship had in fact ceased by the time that the case was heard in the MRT, the Court found that the Tribunal member had erroneously concluded that the application satisfied the criteria for visa grant.
It is really the Court’s finding that the MRT did not have jurisdiction to review the refusal of the visa application (again due to the fact that the sponsorship had “lapsed” by the time that the application to the MRT was made) that is the most essential aspect of the judgment in Lee.
As the Federal Circuit Court itself observed, the only way that it could have been found that the MRT did have jurisdiction would have been if the provisions of section 338(2)(d)(ii) had been found to be applicable. This particular section of the Act provides that the refusal of a “temporary” visa (like a 457 visa) is MRT-reviewable in circumstances only if a decision has been made by the Department not to approve a sponsorship, and review of the decision not to approve the sponsorship is pending. In all other circumstances where review of the refusal of a temporary visa like a 457 is sought, the sponsorship nomination must remain valid and in force at the time that the application for review is made to the MRT. In the Lee case, no application for review of a decision not to approve sponsorship of the applicant had been made.
The clear lessons to be taken from the Lee case are two-fold: One, the MRT does not have jurisdiction to hear an appeal against the refusal of a 457 application if the request for MRT review of the Department’s decision is made more than 12 months after the sponsorship nomination is approved; and Two, on its substance, a 457 application will fail to meet the criteria for visa grant if it is made more than 12 months after the approval of the sponsorship nomination.
This article was written by Michael Arch, Concordia Pacific Migration Lawyers, MARN 1386469, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Tel: (02) 8068 8837, Web: www.concordialaw.com.au
Comments
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Monday, 23 March 2015
Thank you for your follow up question!
Under the ruling in the Lee case, the basic "flowchart" would be as follows:
1. The sponsorship nomination must remain in force "at the time of decision" on the substantive 457 visa application. The sponsorship nomination will cease due to the effect of clause 2.75 of the Regulations 12 months after it has been approved. Therefore, the 457 visa must be granted by the Department withing 12 months of the date of approval of the sponsorship nomination. If the visa application is not granted within 12 months of the date that the sponsorship nomination is approved, the primary "time of decision" criteria will not be satisfied and the 457 visa cannot be granted.
2. If the sponsorship nomination is approved but the 457 visa application is refused, an appeal against the refusal of the 457 visa application must be taken while the sponsorship nomination is still in force, that is, within 12 months of the date that the sponsorship nomination is approved. Otherwise, the MRT will have no jurisdiction to hear the appeal.
3. The only exception to 1) and 2) above is in circumstances where the underlying sponsorship nomination has also been refused and an appeal has been taken against the refusal of the sponsorship. In that case an appeal can also be taken against the refusal of the substantive 457 visa application.
Regards,
Michael Arch -
Monday, 23 March 2015Hello Micheal,
Thanks for your reply and clarification
if i am correct this is right.
it means if applicant 457 visa refusal as well nomination refusal file pending on review in this case applicant file is valid for MRT Review. but applicant sponsor business SBS should be valid or SBS refusal file also pending on MRT review.thanks -
Monday, 23 March 2015
That is correct.
However, if the sponsorship nomination was approved less than 12 months prior, and therefore has not ceased, then an appeal can be taken to the MRT and in fact the 457 criteria can be satisfied - the difficulty is that the MRT might not decide the matter before the sponsorship ceases, because the validity of the sponsorship nomination is a "time of decision" rather than a "time of application": criterion.
Regards,
Michael Arch -
Monday, 23 March 2015
Hi Micheal
Thanks for the information passed on to the migration industry community.
What I understood having read the case record is that the application for review on a refusal of visa must have a valid (within12 months) nomination at the time of applying for MRT review.
Can you please correct me if I am wrong. -
Tuesday, 24 March 2015
Hi Sunnil,
I believe you are on the right track! The Lee case holds that if the nomination has ceased (due to the fact that more than 12 months has elapsed since the time the nomination has been approved), it is "double trouble" - the MRT has no jurisdiction to hear an appeal against the refusal of a 457 visa application and further the criteria for grant of a 457 visa cannot be satisfied.
Regards,
Michael Arch -
Wednesday, 25 March 2015
Hi Michael,
In our case we got the letter from MRT about the validity of the visa application.Both the Nomination and 457 visa applications are under review against refusal. Sponsorship of the business is valid till 2017. Can we write to MRT? -
Thursday, 23 April 2015
Hi Kumar,
I'm in the same situation as you are. Did you hear back from the tribunal officer after your reply? And if so what was the outcome?
Thanks
PD -
Wednesday, 25 March 2015
Hi Kumar,
Thank you for your comment. Based on what you have said in your message it appears that the MRT would have jurisdiction top hear the appeal against the refusal of the 457 application under the Lee decision that I have discussed in the blog. I have to say that I would be hesitant to attempt to provide advice about the carriage of the MRT appeals (in reply to your question "Can we write to the MRT?" without knowing more about the correspondence that the Tribunal has sent to you and the matters that you wish to bring to the MRT's attention. I would be happy to discuss these issues with you briefly if you wish to contact me either through the email address or phone number provided with the blog article.
Regards,
Michael -
Thursday, 26 March 2015
Hi Michael
I'm pretty much in the same scenario. I have a letter from MRT for validity of application for review.
My problem is:
i received sponsorship application approval for 20/8/2013 - 20/8/2016 then i
received Nomination refusal on 1/11/2013
and so consequently the visa application was also refused in December 2013.
i've applied for MRT, did the hearing, awaiting for outcome, now they sent me a letter for validity of application response.
does this mean under the Lee case, because i don't have an approve nomination MRT doesn't have jurisdiction?
does this mean then when you receive a nomination refusal, you have to apply for another nomination otherwise you cannot appeal under MRT jurisdiction?
so confused.. -
Thursday, 26 March 2015
Hi Kim,
Thank you for your comment.
As you can imagine I am somewhat reserved about commenting/advising without having seen the correspondence from the MRT. On the face of the situation that you described there does seem to be some confusion about the implications of the Lee case and it appears that the confusion may originate from the MRT (!). The issue in Lee really has nothing to do with the approval of the sponsoring entity as a Standard Business Sponsor. It has to do with the nomination of the visa applicant by the sponsor for the employment in question. What is not clear to me from your question is whether the refusal of the nomination of the applicant has also been appealed to the MRT. The difficulty is that if the refusal of the nomination wasn't also appealed you are almost certainly "out of time" to do so. Of course if you do not have an approved nomination then the criteria for approval of the substantive 457 visa application cannot be met. So without a valid nomination, an appeal against the refusal of the 457 visa application itself cannot succeed.
I hope this answers your questions, would be pleased to discuss with you further either through the blog or through the contact details provided at the end of the article.
Regards,
Michael -
Friday, 27 March 2015Dear Colleagues,
The message in all of this is that we need to keep an eye out for the nomination remaining valid throughout the entire process. Thus, even if the application for review is on foot and the nomination is still valid for what would appear to be 4 years, the simple fact is that a nomination which is not taken up again will in effect "expire' after 12 months.
This timing issue is a problem created by DIBP failing to harmonise the process. My advice is that if your client has an SBS/NOM but a refusal of a visa then the RMA should "refresh" the SBS/NOM at regular intervals to avoid this problem. Further if the SBS/ Nom was valid at the time of the making of the application for review but has subsequently expired and you are now in receipt of a " Lee invalidity letter" then refresh the SBS/Nom to solve the problem.
Now that being the case, why don't you review what fees you are charging for an SBS/NOM. It seems to me that if you have all of this extra work to do then your fees should reflect that. My advice is that you do a realistic assessment of the amount of work that an SBS/NOM takes along with the visa application ( 12 hours from start to finish) and multiply that by your hourly rate...then you will have a ball park figure. If you now have to protect the client against a Lee scenario then I would add another 4 hours to that process and work that into my quote. -
Friday, 22 May 2015
Hi Michael,
Could you please assist me. my case is that
My 457 visa nomination refusal file is still pending review at MRT
MY 457 visa file has been refused by MRT said that according to lee case they have no jurisdiction in my case. because you have no approved nomination and pending any sbs file.
I submit my submission to MRT MENTION there my nomination file is still pending review at MRT ..SO that my visa file is parallel-er to my nomination file...but they said we are don't know about nomination file but your 457 application MRT has no juridiction..
this lee case is raelly ripe off to all genius 457 visa holder if my 457 nomination reconsider and return back to DIBP AND MY NOMINATION IS APPROVED . IT MEANS AFTER THAT AGAIN I PAY TO 457 VISA APPLICATION FEES AND APPLY FOR AGAIN VISA ...BECAUSE MY VISA APPLICATION IS REFUSED BY MRT BECAUSE NO JURISDICTION...
NOW I AM GOING TO FEDREAL CIRCUT COURT TO TAKING THIS MATTER. COULD YOU PLEASE ASSIST ME. THANKS -
Saturday, 30 May 2015
Hi All - 2 questions:
1 - re Christopher's suggestion of refreshing a nomination periodically, if a nomination was in effect when the corresponding 457 visa review application was made to the MRT, but the nomination later expires before the MRT makes a decision, is the suggestion that a new nomination be lodged before or upon expiry of the previous nomination in order for there always to be a nomination "available" for the 457 application upon remittance by MRT to DIBP? If so, is there any guarantee that DIBP will agree to re-link the 457 visa to a new nomination?
2 - It appears from the reports in this thread that if a 457 nom is refused and the related application is refused shortly thereafter, that the MRT Is now saying because of Lee that there is no jurisdiction for review of the 457 visa app, even if the 457 nom and 457 app are both applied for review by the MRT - any clarification on this? -
Tuesday, 02 June 2015
Dear All,
Are you able to shed light on the application for MIBP v LEE to other sponsored visas: 402, 416, 420, etc. This is what I received today from MRT:
"I am writing about the application for review made by you in relation to a decision to refuse to grant a Subclass 402 Training and Research (Class GC) Occupational Trainee Stream visa.
A preliminary view has been formed that your application for review was not valid, and that
the Tribunal does not have jurisdiction to conduct a review.
Following the recent judgment of the Federal Circuit Court of Australia in MIBP v Lee [2014]
FCCA 2881, the Tribunal is of the view that for your application to be valid there must have
been, at the time that application was made, either an approved nomination in force, or an
application for review of a decision to refuse a sponsorship pending before the Tribunal.
Please note the Tribunal’s view is that it does not have jurisdiction where an application
for review of a decision to refuse a nomination was pending at the time you lodged your
review application.
You lodged your review application on 10 February 2015. Departmental records show that on
this date you did not have an approved nomination. It appears that your application was not
valid, because it appears that at the relevant time there was no nomination of an occupation, a program or an activity that was approved under s.140GB of the Migration Act 1958 and in
force."
I am at a loss right now that this decision is spreading to and affecting other visas too...
Thank you in advance for all your help dear colleagues. -
Thursday, 23 July 2015
I am hoping you are able to help me with my query which I am unable to think of a solution for.
Recently, we have received a refusal notification from DIBP for a 457 visa application. The reason for the refusal was because there is no “approved nomination” in place. The SBS has been approved but the nomination is still being considered by DIBP and no decision has been made yet. We have recently received a number of these decisions and the problem we are facing is the right of merits review for these applications. Does any merits review exist for applicants in this situation? Would the 457 decision be eligible for review if the nomination was subsequently refused and a merits review application was lodged?
On DIBP’s refusal notification, they have stated that the decision is not reviewable and is only reviewable if the SBS was refused and a merits review application was lodged for the SBS. It also states that this only applies to sponsorship applications and that it does not apply if your sponsor has sought review of a nomination refusal.
This has devastating effects and it is quite concerning, considering that DIBP now regularly refuse 457 visas on the basis of no approved nomination even when the nomination is still under consideration with DIBP.
Our client does not hold a substantive visa and now has 28 days on a BVA even though his nomination application is still being processed by DIBP.
Is there any pressure group that is advocating the amendment of the Migration Act which as a result, will overturn the Lee case? I don’t believe the consequences of this decision have been greatly considered and I fear that DIBP are now using this decision to put 457 applicants in an unfavourable position. -
Wednesday, 25 November 2015
Hi Michael,
'm pretty much in the same scenario.
My problem is:
i received sponsorship application approval in August 2013
received Nomination approval in january 2014
and then applied for 457 application on July 2014 and get rejected.
Therefore i applied for MRT in July 2014..In March 2015 MRT acces the case and said the nomination has been expired.
So i applied for FCC Appeal.
What my question is if i win the case with Federal Court do i still have to have another nomination approval by the time when the court hearing or?
Can they give the decision with the january 2014 nomination approval?
Thanks -
Wednesday, 25 November 2015
Dear Mr Singh,
It is not possible for legal advice concerning a specific case to be provided through the comments section of the MA blog. I suggest that you consider contacting the convenor of MA, Liana Allan, for referral to a migration lawyer who can advise you concerning your matter.
Immigration blog
Hello Micheal,
My question is that if applicant having valid SBS but Nomination has been refused by DIBP on the basis no nomination then DIBP refused his visa application
After that applicant apply for MRT for review is nomination and visa application. In this case MRT has jurisdiction review his application.. thanks