Skilled Visa eNews: does it accurately reflect the law?

Although the Skilled Visa eNews is a great source of practical information, we respectfully believe that some of the statements contained in its December 2018 edition do not accurately reflect the recent legislative changes to merits review eligibility

Practitioners have received on 17 December 2018 the latest edition of the Skilled Visa eNews, which is an invaluable source of practical information for practitioners for which we are immensely thankful.

Summary

We respectfully believe, however, that some of the statements there contained deserve a closer look, as they might not squarely conform with the recent changes to AAT eligibility for subclass 457 and TSS visa applicants, introduced by the Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 and by the Migration Amendment (Enhanced Integrity) Regulations 2018.

In summary, we respectfully believe that the following assertions do not seem to echo the legislative changes:

  • It is said that one of the circumstances in which an onshore TSS or 457 visa applicant can apply for merits review is where ‘there is an application to review the decision not to approve the sponsor (i.e. the sponsorship application was refused) pending’ (emphasis added). However, the legislative amendments suggest that the existence of a pending merits review application for a sponsorship refusal is only relevant to subclass 407 visa applications;
  • It is said that refusals of offshore TSS or 457 visa applications are not reviewable if the nominating business is an ‘overseas business’. However, the legislative changes suggest that an offshore visa application for those subclasses that has been refused is reviewable if the nominator is, for instance, an Australian citizen or PR. There are no references in the new legislation to where nominator must be located or operating;
  • It is said that one of the circumstances in which an offshore TSS or 457 visa applicant can apply for merits review is where ‘there is an application to review the decision not to approve the sponsor (i.e. the sponsorship application was refused) pending’ (emphasis added). However, once again, the legislative amendments suggest that the existence of a pending merits review application for a sponsorship refusal is only relevant to subclass 407 applications.

Continue reading for a more detailed analysis.

 

‘Onshore primary TSS / 457 visa applications’

That section of the newsletter states that one of the situations in which a visa refusal is reviewable for the above subclasses is where ‘there is an application to review the decision not to approve the sponsor (i.e. the sponsorship application was refused) pending’ (emphasis added).

We respectfully query whether that is actually the case, for the following reasons:

  1. Under the previous version of s 338(2)(d) of the Migration Act 1958 (Cth), the Full Court of the Federal Court in Ahmad interpreted the word “sponsored” to include nominations. Under the new s 338(2)(d), there are four subparagraphs (referring to both nomination and sponsorship), compared to only 2 under the old provision (referring explicitly only to sponsorship, but deemed to also refer to nominations as per Ahmad). The new provisions thus seem to indicate that Parliament, aware of Ahmad, drafted them in a more granular, specific fashion, making a distinction between sponsorship and nomination. In fact, the explanatory memorandum to the Bill that amended s 338 includes the following passages:

‘In particular, the Court in Kandel v the Minister for Immigration and Border Protection [2015] FCCA 2013 (Kandel) [which was cited with approval in Ahmad] interpreted ‘sponsored by an approved sponsor’ as including situations where the applicant has been identified in a nomination that has yet to be decided at the time of application for review. This interpretation is inconsistent with the policy intention of paragraph 338(2)(d), as it encourages the sponsor to keep lodging repeat applications for approval of a nomination, rather than seeking review of a nomination refusal…

To address the decision in Kandel, this item repeals current paragraph 338(2)(d) and substitutes it with new paragraph 338(2)(d)…

New subparagraphs 338(2)(d)(i) and (iii) apply to applicants that require a sponsorship and a nomination. A decision to refuse to grant a non-citizen such a visa will be a Part 5-reviewable decision if, at the time the decision to refuse to grant the visa is made:

the applicant is identified in a current approved nomination (subparagraph 338(2)(d)(i)); or

an application has been made to the MRD for review of a decision not to approve the nomination identifying the visa applicant, and a decision on the review is pending (subparagraph 338(2)(d)(iii)).

New subparagraph 338(2)(d)(ii) applies to applicants that require either a sponsorship and a nomination or applicants that do not require a nomination. A decision to refuse to grant a non-citizen such a visa will be a Part 5-reviewable decision if, at the time the decision to refuse to grant the visa is made, an application has been made to the MRD for review of a decision not to approve the visa applicant’s sponsor, and a decision on the review is pending.

New subparagraph 338(2)(d)(iv) only applies to applicants for prescribed visas that do not require a nomination. For these applicants, a decision to refuse to grant a visa will be a Part 5-reviewable decision if the applicant is sponsored by an approved sponsor at the time the decision to refuse to grant the visa is made. This ensures that visa applicants who are not required to have an approved nomination will not be negatively impacted by new subparagraphs 338(2)(d)(i) and (iii), by maintaining their right to seek merits review in circumstances where the visa is refused on grounds other than not having an approved sponsor. The exclusion of applicants under subparagraph 338(2)(d)(iv) that are required to be identified in an approved nomination makes it clear that those applicants will only have access to merits review if they meet the criteria set out in subparagraphs 338(2)(d)(i) to (iii). This is consistent with the original intended operation of paragraph 328(2)(d).

2. The way that s 338(2)(d)(iv) was drafted seems to corroborate the above argument (emphasis added): ‘except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations—the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor’. As far as TSS and 457 are concerned, ‘it IS a criterion for the grant of the visa that the non-citizen is identified in an approved nomination’. As a result, s 338(2)(d)(iv) would not apply to TSS and 457 applications. By analogy, it seems that s 338(2)(d)(ii) would not apply to those subclasses either.

 

‘Offshore primary TSS / 457 visa applications’

That section of the newsletter states that for a visa refusal to be reviewable for the above subclasses, it is necessary that ‘the person that nominated the visa applicant is an Australian business’ (emphasis added). It further states that if ‘the sponsor is an overseas business, the decision is not reviewable’.

We respectfully query whether that is actually the case, for the following reasons.

1. New reg 4.02(4)(l)(i) to (iii) only refer to ‘a person, company or partnership referred to in subregulation (4AA)’. Australian citizens, PRs and NZ citizens are also nominators under reg 4.02(4AA) for the purposes of reg 4.02(4)(l). There is no reference at all to whether or not the nominator should be an Australian business;

2. The above would suggest that, for instance, a refusal of a TSS or 457 visa application is reviewable under s 338(9) even if the nominator is an Australian citizen or PR operating offshore.

That section of the newsletter also includes the following passage about 1 of 3 circumstances in which a decision would be reviewable (emphasis added): “there is an application to review the decision not to approve the sponsor (i.e. the sponsorship application was refused) pending; or …”

For the same reasons discussed above, we respectfully query whether that accurately reflects the changes.

 


Disclaimer: the above is a mere tentative analysis of a newsletter. The views there expressed might not reflect the views of the Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.


Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au