Australian Immigration Daily News

Below is information sent by reader Maggie Taaffe last Friday.

Hi Peter

Please see my email to the AAT below and the response.
Cheers

Maggie Taaffe

Maggie’s email to the AAT

The MIA issued the following statement on its website with respect to the Lee case and jurisdiction of the AAT under s 338 of the Migration Act:-

“A decision by Justice Street in Kandel v Minister for Immigration [2015] FCCA 2013 the Federal Circuit Court in Sydney last Friday has brought some resolution to the problems arising from the Lee case. The Lee case resulted in the Migration Review Tribunal deciding it did not have jurisdiction to review a Subclass 457 visa application refusal if an approved nomination was not in force when the review application was lodged. Justice Street’s decision is that the AAT has jurisdiction to consider an application for review of a Subclass 457 visa refusal if there is an application for a review or (?sic ?of) a nomination refusal that identifies the applicant.”

http://www.mia.org.au/newsletters/id/1246/idString/libfoq6437

Given the fact scenario of Kandel (and the ambiguity of the MIA notice), I seek urgent confirmation from the AAT that where a nomination and subsequently a 457 visa application has been refused, the AAT will have jurisdiction to hear a review of the visa application if the nomination review has been lodged in time prior to the visa review application, as the applicant continues to be “named in a nomination” as a result of the nomination review application.

I would be grateful for your urgent consideration of this issue to allow my client to lodge his visa review application within time.

Sincerely Maggie Taaffe

The response she received from the AAT

Dear Ms Taaffe

I acknowledge receipt of your query sent on 3 September 2015 to the Migration & Refugee Division’s national registry mailbox. In summary, I cannot provide you with definitive advice on this issue. It is open to your client to lodge an application. The matter will be constituted to a member for determination. If the tribunal’s decision is that there is no jurisdiction to determine your client’s review, then your client will be advised accordingly and any application fee will be refunded.

Yours sincerely

And more information from Maggie:

I chased up my query too this morning by telephone and another person told me verbally that the tribunal does not know yet whether they have jurisdiction where a nomination and visa have had an application for review lodged, and they are awaiting the Federal Court case outcome in October.

Until that time, they are putting all such dual applications on hold.

Given the advice, and until we have court clarification, a new nomination must be lodged prior to the visa review application as in the fact scenario in Kandel to be “safe” with jurisdiction.

Thank you very much Maggie.

Until this matter is clarified migration agents in this situation should follow Maggie’s advice and lodge a new nomination just before lodging the review application in respect of the refusal of the Subclass 457 visa.