Following the decision of the Full Federal Court in Ahmad v MIBP  FCAFC 182 (16 December 2015), unsuccessful 457 visa applicants have definitively regained review rights which appeared to be lost following the decision of the Federal Magistrates Court in Minister for Immigration and Border Protection v Lee  FCCA 2881 (10 December 2014).
During 2015, some unsuccessful applicants for a 457 visa were unable to access merits review at the Migration Review Tribunal (now the Administrative Appeals Tribunal (“Tribunal”)) following the interpretation made s.338(2)(d) of the Act by the court in Lee.
s.338(2)(d) of the Act requires that:
(d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
In Lee, s.338(2)(d)(i) was interpreted to require that at the time that the review application was lodged a nomination must have been approved and be in force. This meant that applicants with pending nominations could not access review. Although s.338(2)(d)(ii) was not at issue in Lee, the provision was subsequently interpreted as covering only reviews of sponsorship refusal (rather than nomination refusal). This meant that if the visa application and nomination were lodged together and the nomination was also refused the visa applicant was unable to appeal to the Tribunal in relation to the visa application, even where the sponsor had appealed the nomination refusal.
The Full Federal Court has now interpreted s.338(2)(d)(ii) to include circumstances where the employer has appealed a decision to refuse a nomination. The Court also departed from the interpretation of s.338(2)(d)(i) in Lee and indicated that there does not need to be an approved nomination in force at the time of review. It is sufficient that there is a pending nomination application. In the facts of Ahmad, an appeal had been lodged in relation to the refusal of the nomination. Therefore, it was not necessary for the court to consider broader scenarios. However, it is interesting to note that the Court suggested that if review had not been sought of a nomination refusal, or if a nomination approval had lapsed, the requirements of s.338(2)(d) would not be met.
It is good to see that common sense has prevailed and Subclass 457 visa applicants have regained their legitimate right of review, at least in circumstances where they clearly have the ongoing support of an approved sponsor when the review is lodged, in the form of a pending nomination, or pending review of a nomination refusal.