Australian Immigration Daily News

Quiz! 

Assume the following scenario: 

Your client is in Australia on a student visa. 

An employer  nominates your client for an occupation in the employer’s business – that of a “retail buyer” – and that nomination is approved by the Department. 

The client submits an application for a 457 visa but the application is refused. 

An application for merits review of the refusal of the 457 visa is then lodged with the Tribunal. 

Then, more than a full year after the 457 visa application was refused, the Tribunal writes to your client noting that under the “operation of law” (namely Regulation 2.75) the original nomination on which the application for the 457 visa is based would have ceased 12 months after the nomination was initially approved.  The Tribunal asks your client to demonstrate that either a) the approval of the nomination has not ceased, or, at the least, that a new nomination application has been lodged by the sponsoring business. 

In other words, what has happened up to this point is that your client’s application for review of the refusal of his 457 visa application has “sat undetermined” at the AAT for more than a year. During that time, the underlying nomination has ceased to be in force, due to the passage of time (more than 12 months since the nomination was approved). 

OK, here’s the final part of the scenario:  A couple of weeks after your client gets this letter, the sponsoring employer submits a “fresh” nomination of the visa applicant.  On the same day that the fresh application for approval of the nomination is made to the Department, the applicant’s migration agent writes to the Tribunal asking for an extension of time to submit the information as to whether there is an approved nomination, because the new nomination has just been lodged with the Department.  

By the time that the application for review of the refusal of the 457 visa is heard by the Tribunal, the Department has still not determined the fresh, second application for approval of the nomination. 

Once the hearing is concluded, the agent writes to the Tribunal asking that it postpone a decision on the application for review of the refusal of the 457 visa application until the Department determines the application for approval of the nomination. 

The agent states in the letter to the Tribunal: 

“The (second) nomination application has been refused yet the nominator is currently having an undecided (apparently a third) nomination with the Department….We understand that it is totally up to the MRT to decide whether to wait for the nomination result, however, we trust that MRT authority is not only fair , but also kind”. 

Once again, we have a scenario in which an application for approval of the nomination of the applicant in relation to an occupation has already been approved by the Department.  That nomination has ceased to be in force by virtue of the fact that the application for review of the related 457 visa application has been awaiting decision by the Tribunal for more than a year.  Then a second nomination is made, and it is ultimately refused also by the Department. Then a third nomination application is apparently made, and the applicant asks the Tribunal to “wait” until this third nomination is decided by the Department. 

So, here’s the quiz: In this situation, do you think that the Tribunal has an obligation to adjourn the proceedings until the Department determines the fresh application for approval of the nomination? 

Was the migration agent’s  expression of “trust” that the Tribunal would be “kind” well-conceived? 

For those of you who raised your hands and said: “yes, the Tribunal has an obligation to grant an adjournment in this scenario, it’s only fair especially in light of the previous approval of a similar nomination”, here’s the answer: 

Buzzzzzzzzzzzz!!!!!! Epic fail!!!!!!!!!!! You flunked the quiz!!!!!!!!!!! 

Yep, you heard it right. 

In this specific scenario, the Court’s answer was that the Tribunal had no obligation to wait for the determination of the (apparently) third nomination application, and could proceed, without committing jurisdictional error, to decide whether to affirm the refusal of the related 457 visa application. 

This was the outcome of a case that was decided by Judge Smith of the Federal Circuit Court just last week, on 15 September 2016: Chen v Minister for Immigration & Anor (2016) FCCA 2351. 

Did the argument that the Tribunal had ignored the fact that the nomination had previously been approved get the applicant anywhere? 

Nope!!! 

Judge Smith observed that while it may be correct to say that the fact that a previous nomination had been approved was “relevant”, there was one major, yuuuge (as Donald Trump might say)and insurmountable problem: that was that the second nomination had more recently been refused approval. Furthermore, there was no submission or evidence before the Tribunal that the third nomination was likely to be successful. 

What if the facts are given a slight twist? What if the second nomination had not yet been determined by the Department at the time that the Tribunal went ahead and affirmed the refusal of the 457 visa? 

What if there was evidence that the second nomination was absolutely identical to the first nomination and was likely to be approved? 

Would it have been unreasonable for the Tribunal in that circumstance to refuse to grant an adjournment until the second nomination had been determined? 

I suggest that the applicant might have had a stronger case in that scenario! 

What do you think? 

Was the result here fair? Was it just? Was it kind?

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