Editor's Blog

An appeal to the Full Federal Court has resulted in the judgement that the Tribunal has jurisdiction to review an sc457 application whilst reviews are pending for the nomination. The court accepted that “it is sufficient at the time of the making of the application for review of the visa decision there is pending an application for review in respect of an adverse nomination decision.”

In its judgement released on 16 December 2015, in the appealed case of Ahmad v DIBP*, the court considered the meaning of the words “sponsored by an approved sponsor” in s 338(2)(d)(i) of the Migration Regulations.

The court found that at the time Mr Ahmad was refused an sc457 visa, he was “sponsored by an approved sponsor” in that his approved sponsor had nominated him in its nomination application; although that nomination application had been refused, his sponsor had applied to review that decision and the decision was pending.

The court noted that acceptance of the Minister’s construction for the relevant provisions would produce some anomalous and harsh results.

“Why should a visa applicant be deprived of his or her right to have the Tribunal review an adverse decision depending on whether the sponsor elected to lodge a fresh nomination application rather than exercise the sponsor’s right under the Migration Act to have the Tribunal review an adverse decision?” Full Federal Court of Australia

The court went further to address the Federal Circuit Courts decision in Lee and held that the “reasoning…is incorrect insofar as it held that there must be an “approved” nomination of an occupation to satisfy s338(2)(d)(i)…”.

The net result of this decision is that sc457 applicants who have had their applications for review with the AAT struck out as invalid, can now pursue the review on the basis of this decision.

*Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182