Australian Immigration Daily News

When does the Administrative Appeals Tribunal have jurisdiction to review the refusal of an application for a 457 Temporary Work (Skilled) visa?

The answer is not, fortunately or unfortunately, “Whenever it wants to!”

In all seriousness, the question of when the Tribunal does have jurisdiction to review the refusal of a 457 application has been one of the most “hotly litigated” issues before the Federal courts in recent years, and has resulted in a number of important decisions that provide guidance on the issue.

And earlier this week, there was another decision from the Full Court of the Federal Court that addressed the question. The case was Dyankov v Minister for Immigration and Border Protection (2017) FCAFC 81 (23 May 2017).  It came before the Full Court on appeal from a decision of Judge Hartnett of the Federal Circuit Court.  Judge Hartnett’s decision was reviewed in an article that was posted on this blog on 29 August 2016.

Readers may recall that the first of the cases addressing the issue of when the Tribunal has jurisdiction was Minister for Immigration v Lee & Ors (2014) FCCA 2881 (10 December 2014).

The fact pattern in Lee was that a nomination of an occupation in relation to the 457 visa applicant had been approved by the Department, but the related visa application had been refused.  By the time that review of the refusal of the 457 visa application was sought before the Tribunal, the related nomination had ceased under regulation 2.75(2), because more than 12 months had passed since the nomination had been approved.

In that circumstance, the Federal Circuit Court held that the Tribunal did not have jurisdiction to hear the application for the reason that the approval of the nomination was no longer in force.

The next decision concerning the Tribunal’s jurisdiction came in the case of Kandel v Minister for Immigration & Anor (2015) FCCA 2013 (7 August 2015).

The facts in that case were somewhat similar to those in Lee, in that at the time that review of the refusal of the 457 visa application was sought before the Tribunal, no approval of a nomination of an occupation in relation to the applicant was in force.

The difference between Lee and Kandel was that in Kandel, the application for approval of the nomination had not yet been determined by the Department.

In Kandel, it was held that the Tribunal did have jurisdiction to hear an application for review of the refusal.  The Federal Circuit Court held that even though the application for approval of the nomination had not yet been decided, the Tribunal had jurisdiction under section 338(2) of the Migration Act. The Court’s reasoning was that under regulation 4.02, a person who has been “identified in a nomination” made under section 140GB of the Act is defined to be a person who is “sponsored by an approved sponsor”.

The third case in this line of decisions was Ahmad v Minister for Immigration and Border Protection (2015) FCAFC 182 (16 December 2015). 

In Ahmad, both the application for approval of the nomination and the related application for the 457 visa had been refused by the Department. Importantly, in Ahmad, at the time that the application for review of the refusal of the 457 application was made, an application for review of the refusal of the application for approval of the nomination was pending before the Tribunal.

And in Ahmad, it was decided that, so long as the application for review of the refusal of the nomination was still undecided before the AAT, the visa applicant would still be considered to be “sponsored by an approved sponsor” and would thus be able to seek review of the refusal of the visa application before the Tribunal.

What was not specifically decided in Ahmad was the question that was raised both before the Federal Circuit Court and the Full Court in Dyankov: namely, if merits review is not sought of the refusal of the nomination, does the Tribunal nonetheless have jurisdiction under 338(2) of the Act to hear an application for review of the refusal of the 457 visa application.

The answer to this question that was given both in the Federal Circuit Court, and also, this week, by the Full Court, was a categorical “No.”

The Full Court reasoned that, in the absence of an approved nomination, an applicant cannot possibly satisfy the criteria for the grant of a 457 visa. So therefore, in circumstances where the nomination has been refused, and the refusal of the nomination has become final by reason of the failure to seek review, then in that scenario the Tribunal simply does not have jurisdiction to review the refusal of the related 457 visa application.

The Full Court also found that it would be incongruent with the statutory scheme of section 338(2), to read that section (which by its terms envisions that an application for review may be made only in circumstances where merits review has been sought of a decision to refuse the nomination) to find that jurisdiction also exists in the Tribunal when the nomination has been refused and review has not been sought.

So there you have it!  We can now take it as settled (short of a High Court decision to the contrary) that the Tribunal does not have jurisdiction to hear an application for review of the refusal of a 457 application if the related nomination has been refused and review of the refusal of the nomination has not been sought in the Tribunal.

All clear?

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