A heavily litigated area of migration law has recently been the question of when the Administrative Appeals Tribunal (AAT) will have the jurisdiction to hear an appeal of a Subclass 457 visa refusal. Firstly, as a starting point, readers should familiarize themselves with the three stages of the Subclass 457 and understand that all three stages must be approved in order for the 457 visa to be eventually granted. In this blog, we explore the relationship between an associated Nomination submitted by an approved 457 Sponsor and a 457 Visa refusal appealed to the AAT.
Accordingly, several recent cases have begun clarifying when the AAT does or does not have jurisdiction to hear a 457 visa appeal. Firstly, in the case of Minister for Immigration v Lee & Ors (2014) FCCA 2881 (10 December 2014), the court held that where an approved Nomination had expired before the appeal of the visa is lodged, then the AAT would not have jurisdiction to hear the appeal of the visa. Considering that 457 Nominations are valid for 12 months from their approval, this suggests that any 457 visa appeal must be lodged within the 12 months validity period of the associated Nomination.
Secondly, the case of Kandel v Minister for Immigration & Anor (2015) FCCA 2013 (7 August 2015) clarified that as long as there was a pending Nomination with the DIBP at the time than an appeal of a 457 refusal was lodged to the AAT then that this would be sufficient. Interestingly, this may suggest that even if an original 457 Nomination and Visa are refused by the DIBP, that as long as a second Nomination is submitted to the DIBP 'identifying' the applicant, then this may be sufficient for the AAT to have the jurisdiction hear the visa appeal.
Thirdly, the case of Ahmad v Minister for Immigration and Border Protection (2015) FCAFC 2167 confirmed that even in the case of a refused 457 Nomination, as long as the Nomination refusal is also appealed to the AAT, then the AAT would have the jurisdiction to hear a subsequent Visa appeal. Importantly, this was further supported by the recent decision in Dyankov & Ors v Minister for Immigration & Anor (2016) FCCA 2167 (24 August 2016) in which it was concluded that in a case where a 457 Nomination is not appealed to the AAT, then the AAT will not have the jurisdiction to assess the associated 457 Visa refusal.
Accordingly, the current position with the courts (and what will be followed by the AAT) seems to be that in order for a 457 visa refusal to be 'appeal-able', that there must be either a pending Subclass 457 Nomination not yet determined by the DIBP, an approved 457 Nomination by the DIBP, or if a Nomination has been refused by the DIBP, that an appeal of that Nomination refusal has also been submitted to the AAT.
If you require the representation of a Immigration Lawyer in Brisbane today, then feel free to contact us on 1300 644 788 or email your questions to enquiry@salvomigration.com.au.
Also, click here for more useful blogs by our Migration Agents.
Otherwise you can contact us at the following address:
Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma
Source: http://migrationalliance.com.au
Accordingly, several recent cases have begun clarifying when the AAT does or does not have jurisdiction to hear a 457 visa appeal. Firstly, in the case of Minister for Immigration v Lee & Ors (2014) FCCA 2881 (10 December 2014), the court held that where an approved Nomination had expired before the appeal of the visa is lodged, then the AAT would not have jurisdiction to hear the appeal of the visa. Considering that 457 Nominations are valid for 12 months from their approval, this suggests that any 457 visa appeal must be lodged within the 12 months validity period of the associated Nomination.
Secondly, the case of Kandel v Minister for Immigration & Anor (2015) FCCA 2013 (7 August 2015) clarified that as long as there was a pending Nomination with the DIBP at the time than an appeal of a 457 refusal was lodged to the AAT then that this would be sufficient. Interestingly, this may suggest that even if an original 457 Nomination and Visa are refused by the DIBP, that as long as a second Nomination is submitted to the DIBP 'identifying' the applicant, then this may be sufficient for the AAT to have the jurisdiction hear the visa appeal.
Thirdly, the case of Ahmad v Minister for Immigration and Border Protection (2015) FCAFC 2167 confirmed that even in the case of a refused 457 Nomination, as long as the Nomination refusal is also appealed to the AAT, then the AAT would have the jurisdiction to hear a subsequent Visa appeal. Importantly, this was further supported by the recent decision in Dyankov & Ors v Minister for Immigration & Anor (2016) FCCA 2167 (24 August 2016) in which it was concluded that in a case where a 457 Nomination is not appealed to the AAT, then the AAT will not have the jurisdiction to assess the associated 457 Visa refusal.
Accordingly, the current position with the courts (and what will be followed by the AAT) seems to be that in order for a 457 visa refusal to be 'appeal-able', that there must be either a pending Subclass 457 Nomination not yet determined by the DIBP, an approved 457 Nomination by the DIBP, or if a Nomination has been refused by the DIBP, that an appeal of that Nomination refusal has also been submitted to the AAT.
If you require the representation of a Immigration Lawyer in Brisbane today, then feel free to contact us on 1300 644 788 or email your questions to enquiry@salvomigration.com.au.
Also, click here for more useful blogs by our Migration Agents.
Otherwise you can contact us at the following address:
Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma
Source: http://migrationalliance.com.au
Originally Published here: Appealing a Subclass 457 Visa Refusal - Whats the Deal with the Nomination Requirements?
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