Australian Immigration Daily News

Under what circumstances does the Tribunal have jurisdiction to hear an application for merits review of the refusal of an application for a 457 visa? 

That is a question that has been the topic of several recent cases that have been decided by the Federal courts. 

And there have several “variations on the theme” of this question! 

First, in December 2014, there was the case of Minister for Immigration v Lee & Ors (2014) FCCA2881. 

In Lee, the Federal Circuit Court held that the Tribunal does not have jurisdiction where the nomination of an applicant in relation to an occupation has “lapsed” due to the operation of Regulation 2.75. 

Subregulation 2.75(2)(b) provides that the nomination of an occupation will cease 12 months after the day on which the nomination has been approved. 

In Lee, the nomination had ceased before the visa applicant sought review of the refusal of his 457 visa application. 

So in that circumstance, the Court concluded that the Tribunal did not have jurisdiction. 

The next permutation came in the case of Kandel v Minister for Immigration & Anor  (2017)FCCA 2013 (7 August 2015).  

In Kandel,  the question was posed as to whether the Tribunal has jurisdiction in circumstances where the visa applicant has been identified in a nomination that has been made by an approved business sponsor, but the application for approval of the nomination has not yet been determined by the Department. 

The Federal Circuit Court held in Kandel  that the Tribunal does have jurisdiction in this scenario. It reasoned that if an applicant is identified in a nomination under section 140GB of the Migration Act, then the applicant is able to satisfy the requirement of section 338(2)((d) of the Act that he be sponsored by an approved standard business sponsor at the time that the application for review of the refusal of the 457 visa application is made. 

The “third” variation on the theme then came in December 2015, in a case that came before the Full Court, Ahmad v Minister for Immigration and Border Protection (2015) FCAFC 182. 

In Ahmad the issue was whether the Tribunal has jurisdiction in circumstances where a decision has been made by the Department not to approve a nomination, and an application for review of the refusal to approve the nomination was pending before the Tribunal at the time that an application for review of the refusal of the 457 visa application was lodged. 

In Ahmad, the Full Court also made the following observations: 

1. Lee was not correctly decided insofar as that case held that there must be an approved nomination in order for there to be jurisdiction under section 338(2)(d)(ii); as held in Kandel,  all that is necessary is that the visa applicant be “identified” in a nomination made by an approved business sponsor, even if that nomination has not yet been approved by the Department; 

2. The Court was not prepared to go so far as to accept that the Tribunal would have jurisdiction in circumstances where a nomination has been refused, but an application for merits review of the refusal to approve the nomination has not been made to the Tribunal by the time that the application for review of refusal of the 457 visa application is lodged. 

All clear? I hope so! No more cases on this issue to make our collective heads spin? No such luck! 

Yep, just when we thought it was “All Quiet on the Western Front” or that it was safe to go back into the water, and we’d never have to think again about when the Tribunal has jurisdiction or about Donald Trump (!!!), yet another case has surfaced on Austlii that presents one more variation on the theme!! 

Sorry, didn’t mean to scare anyone! Keep reading because this one was relatively easy! 

The case was Sharma v Minister for Immigration  Anor (2016) FCCA 1073 (6 May 2016). 

The issue in this case can be stated in the following terms: 

Does the Tribunal have jurisdiction to hear an application by a secondary applicant for a 457 visa against the refusal of her application in circumstances where the employer was no longer sponsoring the secondary applicant’s husband. 

OK, in case you haven’t guessed already, the facts of this case were wacky! 

The story was that all the way back in November 2004, a delegate of the Minister refused a 457 visa application that had been made by Ms Sharma’s husband ; the husband had stated in his application that the proposed employer had not been approved as a standard business sponsor, but that the husband had elected not to withdraw his application. 

However, the delegate did not deal with that aspect of the application made by Ms Sharma as a secondary applicant in 2004. 

It was only ten years after, in 2014, that a delegate got around to formally refusing Ms Sharma’s application, first on the grounds that she did not satisfy the primary criteria for the grant of a 457 visa, and secondly because she was not a member of the family unit of a person who was the holder of a 457 visa. 

Ms Sharma sought review of the refusal of her application. 

However, the Tribunal found that it did not have jurisdiction to hear her application under section 338(2)(d).  In reaching this conclusion, the Tribunal relied on the case of Kim v Minister for Immigration and Citizenship (2007) FMCA 166, in which it was held that the jurisdictional requirements stated in section 338(d)(2) apply not just to primary applicants for 457 visas, but to secondary applicants as well. 

Therefore, in Sharma,  the Federal Circuit Court held that since the primary applicant, Ms Sharma’s husband, was not sponsored by an approved standard business sponsor, her application was also “dead on arrival”:  as it was observed in Kim, the underlying purpose of section 338(d)(2) is to prevent applicants who are not sponsored by an approved sponsor from seeking review of the refusal of their 457 visa application.  In Sharma , the Federal Circuit Court(Judge Manousaridis) found that the same principle applies to secondary applicants. 

Did the fact that the Department had not dealt with Ms Sharma’s application for over 10 years assist her in this case? 

Was the submission that was put on her behalf by her legal representative that she had a “reasonable expectation that the (Department) would act within a timely compass rather than lull her into believing that her visa position was in some  way secure”  of any assistance to her? 

Nope.  This was no help at all! In the Court’s view, the relevant inquiry was limited to whether, at the time that review of the Department’s refusal of the secondary applicant’s application,  there was no approved sponsor for a primary 457 applicant , nor had an application for review of a decision not to approve the sponsor been made.  

On that basis, the case was over, decided adversely to Ms Sharma. End of story.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.