Australian Immigration Daily News

There has been another decision from the Federal Circuit Court which will help to untangle the tangled web surrounding the question of when the Administrative Appeals Tribunal has jurisdiction to hear an appeal against the refusal of a 457 visa application.

Readers of this blog will recall my articles on the decisions of the Federal Circuit Court in the earlier cases of Minister for Immigration v Lee & Ors (2014) FCCA 2881 (10 December 2014) and Kandel v Minister for Immigration & Anor (2015) FCCA 2013.

In the Lee case, Judge Nicholls held that the “MRT” (as it was then known) did not have jurisdiction to hear an appeal against the refusal of a 457 visa because the applicant did not have an approved sponsorship at the time that the appeal was lodged, due to the fact that the sponsorship had “lapsed” (due to the operation of Regulation 2.75, which provides that an approval of a nomination for a 457 visa ceases 12 months after the day on which the nomination is approved.

Subsequently, in Kandel, Judge Street ruled that the MRT does have jurisdiction in circumstances where the 457 visa applicant is “identified in a nomination” that has been made by an approved business sponsor that has been lodged with the Department, even if the Department has yet to decide on the nomination.

As if this area of the law is not already susceptible to enough possible confusion, the latest decision on jurisdiction in 457 cases might also be referred to as "Lee” - the full citation to the case is Lee & Anor v Minister for Immigration & Anor (2015) FCCA 2736 (7 October 2015).

In this latest case, the question that was raised was: “Does the Tribunal have jurisdiction to hear an appeal against the refusal of the 457 visa application in circumstances where an application for standard business sponsorship has been refused by the Department, and no appeal against the refusal of sponsorship approval has been taken?”

The answer to this question that was given in this latest “Lee” case (by Judge Driver) was “No! The Tribunal does not have jurisdiction in that scenario!”

Before examining the facts in Lee, it will be helpful to review the text of section 338 concerning what types of decisions involving “sponsored” visa applications are “reviewable”.

Section 338(2)(d) provides that where it is a criterion for the grant of the visa that the non-citizen be sponsored by an approved sponsor, and the visa is of a “temporary visa” (which of course includes “4567 visas”), then a refusal is subject to review before the Tribunal provided that either: (i) the applicant is sponsored by an approved sponsor at the time the application for review of the decision to grant the visa is made; or (ii) at the time that the application for review of the refusal of the 457 visa application has been made, an application for review of a decision not to approve the sponsor has also been made, but review of the sponsorship decision is still pending (before the Tribunal).

So, what was the situation in this latest Lee case? The applicant had originally lodged a 457 visa application that nominated one employer. However, after the Department wrote to the applicant to inform him that the first employer did not have an approved nomination for him, the applicant changed his nominated business employer to a different employer. This employer had lodged an application with the Department for approval as a standard business sponsor and had nominated the applicant as a sponsored employee.

However, the Department made a decision to refuse the second employer’s application for approval as a standard business sponsor. No appeal against the refusal of approval of the second employer as a standard business sponsor was ever taken to the Tribunal.

After the second employer’s application for approval as a standard business sponsor had been refused, the Department also refused the application for the 457 visa. The applicant then sought review of the refusal of the 457 visa application before the MRT.

The MRT concluded that it did not have jurisdiction to hear the appeal against the refusal of the 457 visa pursuant to section 338(2) because, at the time that the application for review of the visa refusal was made, the applicant was not sponsored by an approved business sponsor, nor was there any application for review against the refusal to approve the second employer as a standard business sponsor pending before the MRT.

For the purpose of clarity, the holdings of these three cases can by synthesize as follows:

The AAT will have jurisdiction to hear an appeal against the refusal of a 457 visa application when:

1) The applicant has been nominated by an approved standard business sponsor and the nomination remains in force (in other words the nomination has not lapsed due to the operation of Regulation 2.75;

2) The applicant has been “identified” in a nomination that has been lodged by an approved sponsor, but the Department has not made a decision concerning the nomination;

3) The Department has refused to grant approval to the employer as a standard business sponsor, but an application for review of that refusal has been made to the AAT and is still pending before the AAT at the time that the application for review of the refusal of the 457 visa application is made.

It’s all perfectly clear now, right?

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