Toward the end of last year, in December 2014, the Federal Circuit Court (per Judge Nicholls) handed down an important decision concerning the scope of the MRT’s jurisdiction to review decisions of the Department concerning applications for 457 visas. The Court’s judgment was delivered in the case of Minister for Immigration v Lee & Ors (2014) FCCA 2881 (10 December 2014) and can be reviewed at the following link:
http://www.austlii.edu.au/au/cases/cth/FCCA/2014/2881.html
It is essential that all RMAs consider the implications of this decision when advising their clients whether to proceed with an appeal in the MRT against the refusal of a 457 application.
The outcome of the case turned on the operation of clause 2.75 of Schedule 2 of the Migration Regulations. This clause contains provisions which govern the period during which the “nomination” or “sponsorship” of an applicant for a 457 visa remains in force. The sub clause of clause 2.75 which was relevant in the Lee case was sub clause 2.75((2) (b), which provides that a nomination may cease “12 months after the day on which the nomination is approved”.
In the particular circumstances of the Lee case, clause 2.75 had the effect of causing the prospective sponsoring employer’s nomination of the visa applicant to work in the occupation of a “Marketing Specialist” to cease. The evidence in the case was that the nomination of the visa applicant had been approved on 8 July 2010. The application for the 457 visa was submitted to the Department by the visa applicant on 28 June 2010. However, on 23 October 2012, the application was refused by a delegate of the minister on the basis that the nomination had expired on 8 July 2011 (12 months after it had been approved).
An appeal was taken to the MRT against the refusal of the 457 application. The result of that appeal was that the Tribunal member found that the nomination of the applicant had been granted for a period of 4 years. On the basis of that conclusion, the MRT found that the applicant met the criteria for the grant of the 457 visa, and remitted the matter to the Department with a direction to that effect. The Department then appealed to the Federal Circuit Court for review of the Tribunal’s decision.
On appeal, the Federal Circuit Court concluded that the MRT had erroneously concluded that the sponsorship nomination had remained in force for a period of 4 years after grant. The Court’s judgment recites that the evidentiary basis on which the Tribunal relied for making its finding that the sponsorship nomination was in force for a period of 4 years was not clear from the record of the MRT proceedings. However, the Court found that whatever this evidence may have been, it was ultimately irrelevant, as no evidence could “override” the effect of clause 2.75. On that basis, the Court held that the sponsorship nomination of the visa applicant had ceased on 8 July 2011 – critically, on a date before the appeal was taken to the MRT.
The Court’s determination that the nomination had ceased was fatal to the visa application on 2 separate grounds.
First, the fact that the nomination had ceased effectively deprived the MRT of jurisdiction to review the refusal of the 457 visa application. The Court observed that under section 338(2) (d) of the Migration Act, a decision of the Department is only “MRT-reviewable” if the visa applicant is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made. Since the sponsorship had ceased before the application to the MRT for review of refusal of the grant of the visa was made, the Court held that the MRT had no jurisdiction to hear the case in the first instance. Therefore, the MRT’s decision to remit the matter to the Department was found to be void.
Secondly, the Court found that the MRT’s determination that the visa applicant had satisfied the criteria for the grant of a 457 visa was incorrect. The criteria for the grant of a 457 visa (as provided in clause 457.233(4) (a) (II) specify that the sponsorship nomination must not have ceased under clause 2.75 at the time of decision. Since the visa applicant’s sponsorship had in fact ceased by the time that the case was heard in the MRT, the Court found that the Tribunal member had erroneously concluded that the application satisfied the criteria for visa grant.
It is really the Court’s finding that the MRT did not have jurisdiction to review the refusal of the visa application (again due to the fact that the sponsorship had “lapsed” by the time that the application to the MRT was made) that is the most essential aspect of the judgment in Lee.
As the Federal Circuit Court itself observed, the only way that it could have been found that the MRT did have jurisdiction would have been if the provisions of section 338(2)(d)(ii) had been found to be applicable. This particular section of the Act provides that the refusal of a “temporary” visa (like a 457 visa) is MRT-reviewable in circumstances only if a decision has been made by the Department not to approve a sponsorship, and review of the decision not to approve the sponsorship is pending. In all other circumstances where review of the refusal of a temporary visa like a 457 is sought, the sponsorship nomination must remain valid and in force at the time that the application for review is made to the MRT. In the Lee case, no application for review of a decision not to approve sponsorship of the applicant had been made.
The clear lessons to be taken from the Lee case are two-fold: One, the MRT does not have jurisdiction to hear an appeal against the refusal of a 457 application if the request for MRT review of the Department’s decision is made more than 12 months after the sponsorship nomination is approved; and Two, on its substance, a 457 application will fail to meet the criteria for visa grant if it is made more than 12 months after the approval of the sponsorship nomination.
This article was written by Michael Arch, Concordia Pacific Migration Lawyers, MARN 1386469, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Tel: (02) 8068 8837, Web: www.concordialaw.com.au