Which version of s 338(2)(d) applies?

Federal Court: This judgement is about a visa which was refused in 2017, when the "old" version of s 338(2)(d) was in effect. However, the judgement referred to the "new" version of that provision, which only came into effect in December 2018. This case illustrates how challenging it is for anyone to keep up with the pace of change in our industry. Fortunately, it seems that the reference to the "new" provision did not make a difference in the outcome of the case, given the circumstances.

The Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 includes the following provisions:

Part 2—Review of decisions relating to certain visas

Migration Act 1958

4  Paragraph 338(2)(d)

Repeal the paragraph, substitute:

(d)  if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

(i)  the non‑citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or

(ii)  a review of a decision under section 140E not to approve the sponsor of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or

(iii)  a review of a decision under section 140GB not to approve the nomination of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or

(iv)  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.

5  Application of amendments

The amendments of section 338 of the Migration Act 1958 made by this Part apply in relation to decisions made after this item commences.

The above Act commenced on 13 December 2018.

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