The situation of appeals to the Administrative Appeals Tribunal (AAT) (and its predecessor of the Migration Review Tribunal (MRT)) for applicants whose subclass 457 visa applications were refused was narrowed in December 2014. This occurred following the decision of Judge Nicholls in the case of Minister for Immigration v Lee & Ors  (2014) FCCA 2881 (10 December 2014) (The “Lee” decision).

However, the recently decided case of Kandel v Minister for Immigration & Anor, (2015) FCCA 2013 (7 August 2015) (the “Kandel” decision) in the Federal Circuit Court has shed further light on tribunal appeal rights in the situation of refusal of a subclass 457 visa by the Department of Immigration and Border Protection (DIBP).

The “Lee” decision

In the Lee decision, the Federal Circuit Court determined that the MRT did not have jurisdiction to review a subclass 457 visa refusal unless an approved nomination was in force at the time the review application was lodged with the Tribunal.

This case involved a nomination by H2 Property of a citizen of South Korea to be sponsored by the company as a “Marketing Specialist” on a subclass 457 visa. The nomination was approved by the DIBP, however by the time the DIBP made a decision regarding the visa application, the nomination (valid for a 12 month period) was no longer effective and the visa application was refused. An appeal regarding the refusal of the visa application was lodged with the MRT, however the Minister asserted that the MRT had no jurisdiction to review the application given that the nomination had expired.

The Court found that the MRT had wrongly determined that the sponsorship period remained in force for four years and that it only remained in force 12 months after the approval of the nomination. The Court significantly held that it was necessary for an approved nomination to be in force in order for the Tribunal to review the DIBP refusal of a subclass 457 visa application.

The “Kandel” decision

The “Kandel” decision involved the situation where the visa applicant’s subclass 457 nomination and visa application were refused by the DIBP. The visa applicant received a letter stating that the application was not reviewable by the Tribunal. However, in this situation the visa applicant lodged a new nomination application with the DIBP and then seven minutes later lodged an application for review. The AAT found that it did not have jurisdiction to review the decision of the refusal relying on the “Lee” decision that an approved nomination was not in force.

Judge Street in the Federal Court, effectively overturned the “Lee” decision, finding that it is not necessary for a subclass 457 nomination to be approved in order for the refusal of a subclass 457 visa application to be reviewed at the Tribunal. Rather, it is only necessary for a visa applicant to be “identified” in a nomination application in order for the AAT to have jurisdiction to review a decision by the DIBP to refuse a subclass 457 visa application.

Current AAT appeal rights

It seems that under the present state of the law, it will be possible to apply to the AAT in the situation where a subclass 457 visa application is refused at the Department stage:

1. Where the subclass 457 sponsorship application has been refused by the DIBP and is appealed by the sponsoring employer;
2. Where a subclass 457 nomination application by the sponsoring employer has been approved and is still in force; and
3. Where a subclass 457 nomination application by the sponsoring employer has been refused by the DIBP, but a new nomination application has been lodged.

The review situation following the “Kandel” decision has been clarified where as long as the subclass 457 visa applicant has been identified in a nomination application, this will now be sufficient to enable a review by the AAT in the case where the subclass 457 visa application is refused by the DIBP. A nomination is no longer required to be in force in order for the AAT to have jurisdiction to hear the appeal of a refused subclass 457 visa application.

For advice regarding subclass 457 nomination and visa application appeals, please feel free to contact the author by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747 for instructions.

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