Australian Immigration Daily News

Exactly where do the boundaries of the Administrative Appeals Tribunal’s jurisdiction? 

Or, to put the question in another way, under what circumstances can you seek merits review against the refusal of a 457 visa application? 

This has perhaps been one of the most intensively litigated questions in the Federal courts over the last couple of years.  

And a case that was just decided late last week, Dyankov & Ors v Minister for Immigration & Anor (2016) FCCA 2167 (24 August 2016) has provided further clarification of the answer to this question. 

As followers of this blog may recall, the key issue in the debate concerning the limits of the AAT’s jurisdiction has focused on the interpretation of section 338(2) of the Migration Act. 

This section of the Act provides that a decision of the Department is subject to AAT review where: 

• It is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a visa of a temporary kind prescribed for the purposes of section 338(2) – as are 457 visas;
• The non-citizen is sponsored by an approved sponsor at the time the application for review of the decision not to grant the visa is made; or
• An application for review of a decision not to approve the sponsor has been made, but at the time of the application to review the decision to refuse the grant the visa is made, review of the sponsorship decision is pending. 

So, the critical question for determining how section 338(2) should be interpreted boils down to figuring out exactly what the phrase “sponsored by an approved sponsor” means. 

The series of cases that unfolded around the issue of when the AAT does have jurisdiction to review the refusal of a 457 visa began with the decision of the Federal Circuit Court in Minister for Immigration v Lee & Ors (2014) FCCA 2881 (10 December 2014).  In that case, a nomination of an occupation in relation to the 457 visa applicant had been approved by the Department. However, the 457 visa application itself was refused. By the time that review of the refusal of the visa application was sought, more than 12 months had passed since the nomination had been approved.  Accordingly due to the operation of regulation 2.75(2), the nomination had ceased (as 2.75(2) says that an approval of a nomination ceases 12 months after the day on which the nomination is approved). 

In this scenario, where the approval of the nomination had ceased due, as lawyers love to say, to the “effluxion” (translation: passage) of time, the Federal Circuit Court found that since the approval of the sponsorship nomination was no longer in force, the Tribunal did not have jurisdiction to hear the application for review of the refusal of the 457 visa. 

The next case in the chain was Kandel v Minister for Immigration & Anor (2015) FCCA 2013 (7 August 2015). In Kandel, just as in Lee, it was the case that an approved nomination was not in force at the time that the application for merits review to the AAT against the refusal of the 457 visa application was made.  What was different in Kandel from Lee was that the application for approval of the nomination had not yet been determined by the Department at the time that the application for review of the refusal of the 457 visa application was lodged. 

And in Kandel, it was held that because under regulation 4.02 the term “sponsored” is defined to mean “being identified in a nomination under section 140GB of the Act”, that in circumstances where the visa applicant has been “identified in a nomination”, even one that has not yet been determined or approved by the Department, the visa applicant would be considered legally to be “sponsored by an approved sponsor.  

So, under Kandel, all that is necessary is for the applicant to have been identified in a nomination application that has not yet been determined. 

The third case in this line of decisions came from the Full Court in Ahmad v Minister for Immigration and Border Protection (2015) FCAFC 2167.  In Ahmad, both the application for approval of the nomination and the related 457 visa application had been refused, and an application for refusal of the nomination had been made to the Tribunal. The Full Court found that the phrase “decision not to approve the sponsor” as used in section 338(2)(d)(2) included a decision by the Department not to approve an application for approval of a nomination.  So the Full Court held that, provided that an application for review of a decision not to approve a nomination is pending before the AAT at the time that an application for refusal of a 457 visa application is made, then the AAT would have jurisdiction to review the refusal of the visa application itself. 

The question that was not specifically decided in Ahmad was whether there is jurisdiction to review the refusal of a 457 visa application where an application for approval of a nomination has been refused, and no application for review of the refusal of the nomination has been taken to the AAT. 

The Full Court did say in Ahmad that it was not disposed to accept a submission that the AAT would have jurisdiction in such a circumstance. 

And that is exactly where the latest case, Dyankov, comes in!! 

For in Dyankov, that was the exact fact pattern: both the nomination application and the visa application were refused by the Department, but at the time that the visa application was refused, no application for review of the refusal of the nomination application had been made to the Tribunal.  

The Tribunal concluded in Dyankov that it did not have jurisdiction to hear the review application against the refusal of the visa in this circumstance. 

And the Federal Circuit Court agreed that this conclusion was correct. 

The applicant’s legal representatives tried to argue in Dyankov that the phrase “approved by an approved sponsor” should be interpreted in accordance with its “plain” or “ordinary” English meaning of being “vouched for”.  And the applicant’s representatives further suggested that it would be enough if the applicant had been identified in a nomination (even if the nomination had not been approved). 

That had been the situation in Kandel, except for one important distinction: in Kandel,  the nomination had not yet been determined, let alone refused, whereas in Dyankov, the nomination had been refuse and no application for review of the refusal of the nomination had been made to the Tribunal. 

The Minister’s representatives contended in Dyankov  that in order for there to be jurisdiction under section 338(2), it is necessary either that the nomination application either have not yet been determined, or have been approved by the Department, or if refused by the Department, that there be a pending application for review of the refusal of the nomination application awaiting determination before the Tribunal. 

The Federal Circuit Court accepted the Minister’s position to be the correct one, and one that is consistent with the observations made by the Full Court in Ahmad.

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