Australian Immigration Daily News

Suppose that a person applies for a 457 visa, and after the application is made, the employer withdraws the nomination of the applicant, and then the Department refuses the visa application.

Can the applicant then seek merits review of the refusal of the visa application before the Tribunal?

To put the question another way, if the nomination of the 457 visa applicant is withdrawn by the sponsoring employer, does the Tribunal have jurisdiction to hear an application for merits review, or not?

The question of the scope of the Tribunal’s jurisdiction to hear applications for review of 457 visa refusals has been one of the more intensively litigated issues before the Federal courts in recent years.

The basic framework that specifies when the Tribunal does have jurisdiction to review the refusal of a 457 visa is provided by section 338(2) of the Act.

That section specifies that in circumstances 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 temporary visa”, then in order for the Tribunal to have jurisdiction to hear the review application, either: 1) the non-citizen is sponsored by an approved sponsor at the time that application to review the decision to grant the visa is made; or 2) an application for review of the decision not to approve the sponsor has been made, but at the time that the application to the Tribunal for review of the decision to refuse the visa is made, review of the adverse sponsorship decision is pending before the Tribunal.

The entire controversy about when the Tribunal does or does not have jurisdiction began with the decision by Judge Nicholls of the Federal Circuit Court in the case of Minister for Immigration v Lee & Ors (2014) FCCA 2881 (10 December 2014).  In that case, Judge Lee held that the Tribunal does not have jurisdiction if a nomination has “ceased” under Regulation 2.75(2); the regulation provides that a nomination will cease 12 months after the day on which it is approved.

The decision in Lee  was then followed by a decision of Judge Street of the Federal Circuit Court in the case of Kandel v Minister for Immigration & Anor (2015) FCCA 2013 (7 August 2015).  In Kandel, Judge Street held that the Tribunal does have jurisdiction in circumstances where a visa applicant has been nominated in an application for approval of an occupation, but the nomination has not yet been decided (either positively or negatively).

Next, in Ahmad v Minister for Immigration and Border Protection (2015) FCAFC 182 (16 December 2015), the Full Court decided that the Tribunal does have jurisdiction  where the nomination has been refused and merits review of the refusal of the nomination has been sought before the Tribunal, but the Tribunal has not yet determined that application for review.  The Full Court ruled that in this situation, where the application for review of refusal of the nomination is still pending before the Tribunal, then the Tribunal can hear an application for review of the refusal of a 457 visa application.

In Ahmad, the Full Court indicated that – although it was not necessary to decide the questions in the context of that particular case – it “would not be disposed” to accept submissions made on behalf of the applicant to the effect that the Tribunal had jurisdiction in circumstances where an application for approval of a nomination had been refused, and no application for review of that refusal has been taken to the Tribunal.

In a subsequent case, decided in May of this year, Dyankov v Minister for immigration and Border Protection (2017) FCAFC 81 (23 May 2017), the Full Court proceeded to address the issue that it had found unnecessary to decide in Ahmad, and held that where no application for review of the refusal of a nomination has been made, then the Tribunal does not have jurisdiction to hear an application for review of the refusal of a 457 visa.

The question of whether the Tribunal has jurisdiction when a nomination has been withdrawn by the sponsor was dealt with in a decision of the Federal Court that was handed down last week, Al Hamid v Minister for Immigration and Border Protection (2017) FCA 1256 (24 October 2017).

In Al Hamid, the Department/Minister argued that the same reasoning that was used in Dyankov compels a conclusion that the Tribunal does not have jurisdiction where the nomination has been withdrawn.  In Dyankov, it was held that where no application for review of the nomination has been made to the Tribunal, then the visa applicant cannot be considered to be “sponsored” and therefore cannot satisfy the criteria for the grant of a 457 visa. 

The Court accepted that the situation was the same where the nomination has been withdrawn: in this circumstance as well, the applicant cannot satisfy the criterion of being sponsored, and is thus not eligible for the grant of the 457 visa.

So there you have it: if the nomination is withdrawn, then there is simply no avenue of review to the Tribunal.

And that, at least for the time being, is the “encyclopedia” about when you can seek review of the refusal of a 457 visa application!