Australian Immigration Daily News

Suppose you have a situation where a client is seeking an employer-sponsored skilled visa, but the employer’s nomination of the client has been refused.

Can the applicant “switch” sponsoring employers while relying on the same visa application?

And does the AAT have an obligation to grant a visa applicant an opportunity to find a new sponsoring employer, or to allow the original sponsor to file a new nomination associated with the visa application?

These types of questions do seem to surface a lot, don’t they?

So how have the courts answered them?

A good starting place for consideration of this issue is the recent decision of Judge Driver in the case of Jilani v Minister for Home Affairs & Anor (2019) FCCA 1784 (26 June 2019).

In the Jilani case, the applicant, a citizen of Pakistan, had applied for an Employer Nomination Scheme visa (Subclass 186) through the “Direct Entry” stream.

The nomination that had been made by the visa applicant’s sponsoring employer had been refused.

Before the visa application was determined, the Department had given the applicant an opportunity to comment on the information that the nomination had been refused; however, the applicant did not respond to this invitation.

The Department then proceeded to refuse the visa application.

On review, the Tribunal also concluded that since there was no approved supporting nomination, the criteria for the grant of the Subclass 186 visa had not been satisfied.

The applicant then sought judicial review in the FCC where he argued that the Tribunal had erred by not giving him the opportunity to find another sponsor, or to allow a further nomination by the original sponsoring employer.

These arguments by the applicant were rejected by Judge Driver.

Judge Driver concluded that the outcome of this case was governed by the decision of the Full Court in the earlier case of Singh v Minister for Immigration (2017) FCAFC 105.

In Singh, the Full Court had held that the regulations do not allow a visa application to be granted on the basis of a “new” or “fresh” employer nomination from the same employer, made after an original nomination has been refused. 

Rather, the Full Court held that the process of seeking an employer-sponsored skilled visa is a “once off” process, one in which the visa application must “match” the nomination.  The Full Court observed in Singh that the Migration Regulations do not allow repeated applications by the same employer in relation to the same visa applicant.

So, in Jilani, Judge Driver reasoned that, by analogy to the ruling in Singh, a visa applicant cannot seek to “switch” or “change” employers once an original application for approval of a nomination has been refused.  In other words, a nomination must relate to a specific prospective employee, and a visa application must correspond with a specific nomination.

It’s just not possible to “amend” a visa application so that it relates to a different employer, to get around the original negative or adverse decision on the nomination.

The only recourse is to file an entirely new visa application that correlates with an entirely new nomination.

And of course, applicants and their advisers need to remain aware of the “Section 48” bar: if they no longer hold substantive visas and a visa application has been refused because there is no approved employer nomination, then the further visa application will need to be made from “offshore”.

If you found this article to be of interest or value to your migration practice, stay tuned, more is coming on the Migration Alliance site and also on The Migration Messenger (launching shortly!)