Subclass 407: refusals not reviewable by the AAT

Understand why more and more subclass 407 visa application refusals are not reviewable by the AAT under s 338(2) of the Migration Act 1958. Can anything be done about it? Maybe...

The issue

As Migration Law Updates anticipated a long time ago, RMAs are starting to see refusals of subclass 407 visa applications (same can happen to 482)  in circumstances where those refusals are not reviewable by the AAT under s 338(2) of the Migration Act. Why is this happening?

Paragraph 338(2)(d) was amended in 2018 so as to require that, for visas to which that provision applies, there is an approved nomination (or sponsorship, as the case may be) or a pending review application of a refused nomination (or sponsorship, as the case may be) in place at the time of the visa refusal.

We alerted RMAs to the possibility of a visa being refused right after a nomination refusal (or even before it), meaning that at the time of visa refusal there would be no pending review of the nomination refusal in place, with the consequence that the visa refusal would not be reviewable by the AAT under s 338(2).

As predicted, that has been happening more and more frequently for visa subclass 407. More specifically, we have seen several cases where a nomination application for subclass 407 is refused and the visa applicant receives a s 57 letter advising of that refusal, inviting him/her to withdraw the visa application. In those cases, instead of applying for review of the nomination refusal within the statutory timeframe, the respective nominators have made a second nomination application, asking for the Department to link the existing visa application with the new nomination application.

What the Department has been doing is to refuse to link those applications (we discuss that aspect below), refuse the second nomination application without giving the visa applicant a second s 57 letter and refuse the visa application right after the second nomination refusal. As a result, because the nominator did not apply for merits review of the first nomination refusal within the statutory timeframe, there is no pending review of any nomination refusal at the time the visa is refused, with the consequence that the visa refusal is not reviewable by the AAT under s 338(2).

Is the lack of a second s 57 letter a jurisdictional error?

Perhaps not...

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