Order Restored: Ahmad’s Right To Appeal 457 Visa Refusal

Imagine this scenario: you are an overseas national. You are offered employment by an Australian employer who is also prepared to sponsor and nominate you for a 457 visa. You are obviously happy with this opportunity to remain in Australia, work for an employer you respect, and glad that you are on a pathway towards eventually obtaining permanent residency.

Your current visa is about to expire. Your employer lodges a sponsorship and nomination application, and you lodge a corresponding 457 visa application.

Your employer’s sponsorship is approved.

To everyone’s surprise however, the nomination is refused because the Immigration Department appears to have misunderstood the nature of your position in the business, and the Department finds that the position is not “genuine”. Your visa application is consequently refused because you are not the subject of an approved nomination.

Prior to December 2014, the accepted wisdom was that your employer could appeal the nomination refusal to the then Migration Review Tribunal (which amalgamated with the Administrative Appeals Tribunal on 1 July 2015) and you could lodge an appeal of your visa refusal pretty much concurrently.

All this changed following the case of Minister for Immigration and Border Protection v Lee [2014] FCCA 2881. Whatever the court meant in Lee’s case, it was widely interpreted by the Tribunal to mean that it had no jurisdiction in a visa refusal appeal unless there was an approved nomination in place.

This led to chaos for the ensuing months, with many 457 appeals being rejected by the Tribunal on the basis that it had no jurisdiction.

Then came the case of Kandel v Minister for Immigration and Border Protection [2015] FCCA 2013, where the judge ruled that the Tribunal had jurisdiction to deal with a 457 visa refusal provided the employer lodges a fresh nomination application with the Immigration Department (rather than appealing the nomination refusal to the Tribunal) immediately before the visa applicant lodges the Tribunal appeal.

At the time, I thought that there was a risk that the Immigration Department would read Kandel’s case very strictly (and I was right!). I advised clients that if they really wanted to access the Tribunal’s jurisdiction, their employer would need to lodge a fresh nomination, rather than appeal the refused nomination, before the visa applicant lodged their appeal to the Tribunal. In fact, I told my clients, if you wanted to be really sure, your employer should lodge the fresh nomination about 7 minutes before you lodge the 457 appeal (which is what Kandel’s lawyer had done).

The case of Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, handed down by the Full Federal Court of Australia on 16 December 2015, brings welcome clarification to the law on this issue and essentially resets the position in line with the accepted wisdom before Lee’s case came on the scene.

The Full Court observed that:

• For the Tribunal to have jurisdiction in the visa appeal, the visa applicant must have been “sponsored”.
• The term “sponsored”, when read with section 337 of the Migration Act 1958 (Cth) and regulation 4.02(1AA) of the Migration Regulations 1994 (Cth) includes “being identified in a nomination under section 140GB of the Act.”
• Being “identified in a nomination” includes being subject to:
• an approved nomination;
• a nomination application which is being processed by the Immigration Department; or
• importantly, a nomination which was refused but has been appealed to the Tribunal.
• To hold otherwise would lead to a harsh result.

Comment

If you have a 457 refusal because your employer’s nomination has been refused, the Tribunal will have jurisdiction to hear your appeal if your employer, immediately before you lodge your appeal, lodges its own appeal of the nomination refusal.

It is also open for your employer to lodge a fresh nomination with the Immigration Department immediately before you lodge your appeal. It may be expedient to lodge a fresh nomination where your employer had made a simple mistake in its nomination application which can be easily cured. If the nomination refusal was based on a discretionary criterion, e.g. regarding the genuineness of the position, your employer may have better prospects with the Tribunal.

If you were given a notice by the Immigration Department that you had no right to appeal the refusal of your 457 visa application, such a notice may be invalid and you may still have the right to appeal to the Tribunal even though the time limit on appeals has ostensibly passed. You may wish to get advice on the prospects of your individual case.

For more information, or if you have a migration law query, please email Lester Ong (MARN 0427625) or call 08 9426 6222.