Australian Immigration Daily News

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.

The Kandel decision makes it very clear that the AAT/MRT was not interpreting the Lee decision correctly and was concluding that it did not have jurisdiction to review Departmental decisions refusing 457 visas when in fact the Tribunal did have jurisdiction. Therefore, RMAs whose clients have received decisions from the MRT/AAT that the Tribunal did not have jurisdiction may very well wish to consider seeking judicial review of those Tribunal decisions on the grounds of “jurisdictional error” (an erroneous interpretation of the law by the AAT/MRT).

It will be helpful to an understanding of the recent Kandel case to first revisit the decision in the Lee case (an article about Lee was posted on the MA site on 20 March 2015). The situation in Lee was that the 457 visa applicant’s approved nomination for sponsorship by his employer had ceased (due to the operation of Regulation 2.75) by the time that the 457 visa application had itself been refused by the Department and was ceased at the time that the application for review of the refusal of the 457 application was lodged with the (then) MRT. 

In Lee, the Federal Circuit Court, per Judge Nicholls, held that the refusal of the 457 visa application was not an MRT-reviewable decision under section 338(2) (d) of the Act on the basis that the visa applicant was no longer sponsored at the time that the application for review of the refusal of the 457 visa application was lodged with the MRT. 

The holding in Kandel (per Judge Street) is that it is not essential that an application for a nomination of an occupation in relation to a 457 visa applicant must be approved at the time that an application for review of refusal of the 457 visa application is made to the AAT.  And, in fact, in its submissions to the Court in Kandel, the Department actually accepted that this is the correct interpretation of the law.

As explained in Judge Street’s decision in Kandel, section 338(2) of the Migration Act, which pertains to the scope of the AAT’s jurisdiction, must be read together with Regulation 4.02(1AA). Section 338(2) provides that the refusal of a temporary visa application (like an application for a 457 visa) is AAT-reviewable “where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor”.  Regulation 402(1AA) in turn provides that for the purposes of section 337 (which relates to interpretation of section 338) that the term “sponsored” means only “being identified” in a sponsorship application by an approved sponsor. Consequently, there is no requirement that the sponsorship application must actually be approved at the time that the application for review of the refusal of a 457 visa is made to the AAT.

It is interesting to note that in the Kandel case, an application for nomination of the occupation in relation to the visa applicant was made at 1:43 p.m. on 21 March 2014, and an application for review of the refusal of the refusal of the 457 visa application was made to the MRT 7 minutes later, at 1:50 p.m. on that same day.  Nonetheless, because the visa applicant had been identified in an application for sponsorship nomination prior to the time that the application for review of refusal of the 457 visa application was made to the (then) MRT, the Court found that the Tribunal did have jurisdiction to undertake a merits review of the refusal.

The critical aspects of the Kandel decision are recapitulated below in bullet point form:

• The AAT does have jurisdiction over an appeal against the refusal of a 457 visa so long as the visa applicant has been identified in a sponsorship application that is made before the application for review is lodged with the AAT.
• There is no requirement that the sponsorship nomination must actually have been approved in order for the AAT to have jurisdiction.

There is one more essential point that RMAs must keep in mind: the Kandel case did not hold that Lee was incorrectly decided insofar as it holds that the MRT/AAT does not have jurisdiction if the sponsorship nomination has ceased due to the passage of time, through the operation of Regulation 2.75. Nor does Kandel specifically address the situation where the sponsorship nomination has been refused.

It is my personal recommendation to RMAs that, before they commence appeals against 457 refusals, they should check to see whether a sponsorship nomination remains in force under Regulation 2.75 before taking an appeal to the AAT. Under Lee, if the nomination has ceased, the AAT will not have jurisdiction.  Likewise, in cases where the sponsorship nomination has been refused by the Department, it will be well to insure that an application for review of the refusal of the nomination has been lodged before the AAT and is still awaiting final determination (either before the AAT or the courts) before going forward with an appeal against refusal of the visa application.

 Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837