Worker argues employer mishandled sponsorship application
The Federal Circuit and Family Court of Australia recently dealt with a case involving a visa application for a temporary work (skilled) (subclass 457) visa. The court's decision highlighted several important aspects of Australia's migration law, particularly concerning employer sponsorship and the review process for visa decisions.
The case centred on a worker who challenged the refusal of his visa application and the subsequent decision that his review application was invalid. The worker argued that there were errors in the handling of his employer's sponsorship application, which he believed had unfairly impacted his visa prospects.
He also claimed he was denied natural justice during the review process. These arguments raised questions about the interpretation of specific sections of the Migration Act and the procedural fairness of the visa application and review system.
The case began when a citizen of Pakistan applied for a temporary work (skilled) (subclass 457) visa in December 2017. The worker's prospective employer, a company called LED Solutions Australia Pty Ltd, was meant to sponsor the visa.
In January 2018, the Department of Immigration and Border Protection informed the worker that his prospective employer did not have an approved nomination for him. The court noted that this was an important issue, as an approved nomination is needed for the grant of the visa.
The department gave the worker a chance to provide more information or evidence of an approved nomination. However, no response was received within the given time.
In October 2018, the visa application was refused by a delegate of the Minister for Immigration. The reason for this refusal was that the worker did not meet the requirement of being the subject of an approved nomination under the Migration Act.
The worker then asked for a review of this decision with the Administrative Appeals Tribunal (AAT) later that month. However, the AAT wrote to the worker saying that it thought the application for review was not valid.
The AAT explained:
"At the time [the worker] applied for review, [the worker] was not identified in a nomination under s 140GB of the Act that was either approved or pending, nor was there a valid and pending application for review before the Tribunal of a decision not to approve [the employer] under s 140E, or of a decision not to approve the nomination under s 140GB of the Act."
After looking at the matter, the AAT decided in December 2018 that it did not have the power to review the decision to refuse the visa. This decision was based on specific rules set out in the Migration Act.
The court said that the AAT's decision showed an important point for employers and visa applicants, which was that the timing of applications and reviews can be crucial for the outcome.
In this case, the worker was not sponsored by an approved sponsor when he asked for a review, and there was no ongoing review of the sponsorship decision.
As the Tribunal said:
"The Tribunal determined that on the material before it, at the time the review application was made on 22 October 2018, [the worker] was not identified in a nomination under s 140GB by an approved sponsor as required by s 338(2)(d)(i) of the Act. Further, the Tribunal identified there was no pending application for review of a decision not to approve a standard business sponsor under s 140E or a nomination under s 140GB (as required by s 338(2)(d)(ii) of the Act)."
The court, in reviewing the AAT's decision, found no error in the Tribunal's approach. The court agreed that the AAT had applied the law correctly in deciding it did not have the power to review the visa refusal.
The court emphasised the importance of meeting specific criteria for a decision to be reviewable under the Migration Act. It noted:
"The Tribunal's decision of 18 December 2018 that it did not have jurisdiction to undertake a review of the delegate's decision was plainly correct."
The court also addressed the worker's argument about being denied natural justice. It concluded:
"Ultimately, I accept [the minister]'s submission that the validity or otherwise of the notification of the 140E refusal decision was not relevant to the issue the Tribunal was required to determine pursuant to s 338(2)(d) of the Act. There was, consequently, no practical injustice flowing from any failure to afford [the worker] an opportunity to respond to the Department's views about the validity of its notification of the 140E refusal decision, or the jurisdiction of the Tribunal in respect of that decision."
In dismissing the application, the court underscored the importance of understanding and following the correct procedures in visa applications and reviews.
This decision serves as a reminder for employers and HR professionals of the details involved in Australia's migration system and the need for attention to detail throughout the sponsorship and visa application process.
