Australian Immigration Daily News

Is it possible to salvage a visa application for employer-sponsored employment after the original nomination has been refused, simply by lodging a new nomination of the proposed position?

Can lodging a new nomination enliven the Tribunal’s jurisdiction to hear an application for review of a decision by the Department to refuse the visa application?

Is this a way of solving a situation where no application has been made to the Tribunal for merits review of the refusal of the nomination of the position?

These are undoubtedly very common questions that arise in relation to employer-sponsored visa applications. 

A recent decision of the Full Court, handed down on 14 July 2017, Singh v Minister for Immigration and Border Protection (2017) FCAFC 105 provides some very useful and important guidance on this issue.

This was the background of the case:

On 7 June 2013, the applicant submitted an application to the Department for a Subclass 187 – Regional Sponsored Migration Scheme visa.

A criterion for the grant of this visa, specified in regulation 187.233 of Schedule 2, is that the position to which the application relates must have been nominated in an application for approval of the nomination made to the Department, and the Department must have approved the nomination.

In the Singh case, after the visa application had been lodged (again on 7 June 2013), the Department refused the application for approval of the nomination (on 5 December 2013).  Although review of the refusal of the nomination could have been sought  before the Tribunal under section 338(9) of the Migration, no such application for merits review was in fact made.

After the nomination was refused, on 19 December 2013, a delegate of the Department sent a letter to the visa applicant through his migration agent inviting the applicant to comment on the nomination refusal.  This letter stated that the applicant had two options: to withdraw the visa application, or, alternatively, to have it determined on the basis of the refused nomination (which of course would have inevitably led to the refusal of the visa application).

What had actually occurred though was that on 15 December 2013, shortly before the Department sent the letter of 19 December, the applicant’s migration agent attempted to lodge  on behalf of the prospective employer a second application for approval of nomination of the position in relation to the applicant.

The visa application was then refused by the Department.

The refusal was affirmed by the Tribunal, on the basis that there was no evidence either that the refusal of the original nomination had been approved, or that the employer had sought review of the refusal of the original nomination.

On appeal to the Full Court, the applicant attempted to argue that the situation could be “cured” by the submission of the new, second nomination by the employer.  The applicant’s legal representatives claimed that there is no limit on the number of times an employer may nominate an employee and a position, and that the only limitation is that the nomination must relate to the same position and the same employer.

The Full Court did not accept this submission.

It held that there can only be one nomination in relation to a visa application for an employer-sponsored visa. 

The Court ruled that the appropriate mechanism for dealing with a refused nomination is to seek merits review of the refusal before the Tribunal, and that the regulations relating to the Regional Sponsored Migration Scheme simply do not contemplate that an unsuccessful nomination can be cured simply by lodging further nominations in respect of the same visa application and the same visa applicant.

It goes without saying that this decision has important implications for 457 visa applications as well, which are also subject to the requirement that an application for approval of nomination of the position must be made and must be approved.

So the answer to the question is that it is not possible to rescue an application for employer-sponsored employment after an application for approval of a nomination has been refused by lodging further nomination applications. 

Rather, the only recourse, at least according to the Full Court in Singh, is to seek merits review of the refusal of the original nomination before the Tribunal.  Failure to seek timely review of a refusal of the nomination will be fatal to the associated visa application.