Important Restriction on Eligibility for Merits Review of 457 Visa Refusal
June 23, 2015
By: Sarah Brady
Two recent decisions of the Federal Circuit Court of Australia (FCCA) have highlighted the importance of 457 visa applicants seeking review of visa refusal in the Migration Review Tribunal (MRT) to have a valid 457 nomination in place.
The case of Minister for Immigration v Lee & Ors [2014] FCCA 2881 concerned the appeal of a decision made by the Department of Immigration and Border Protection (the Department) to refuse a subclass 457 visa application. The Court held that as the 457 nomination had expired at the time the application for review of the visa refusal decision had been made to the MRT (i.e. it had been more than 12 months since the nomination was approved) the MRT did not have jurisdiction to review the visa refusal decision and therefore the visa applicant had no right to appeal the decision.
In the case of Ahmad v Minister for Immigration & Anor [2015] FCCA 1486 both the 457 visa and nomination applications were refused by the Department. The sponsor applied to the MRT for review of the nomination refusal decision while the visa applicant applied for review of the visa refusal. However, the Court held that as the visa applicant was not ‘sponsored’ (i.e. there was no valid nomination) the MRT did not have jurisdiction to review the visa refusal decision and therefore the visa applicant could not appeal the refusal decision.
What does this mean for subclass 457 visa applicants?
If both the nomination and visa applications are refused – the visa applicant cannot lodge an appeal of the visa refusal.
If the nomination is approved but the visa application is refused - the visa applicant can lodge an appeal of the visa refusal provided the nomination is still valid.
If the SBS application and visa application are both refused - the visa applicant can lodge an appeal of the visa refusal provided the nomination is still valid and the sponsor has appealed the sponsorship refusal.
