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Courts open door to MRT review of Labour Agreement 457 visa refusals
The contents of this article are correct as at 19 December 2011.
In a recent case run by Visa Lawyers Australia, the Federal Magistrates Court has confirmed that the Migration Review Tribunal (MRT) can review DIAC decisions to refuse 457 visa applications that are based on a Labour Agreement. This is the case even where there is no Labour Agreement in place.
The relevant case is that of: Islam & Anor v Minister for Immigration & Anor  FMCA 991.
The section of the Migration Act dealing with the MRT’s review powers states that, where it is a criterion for the visa that the applicant is ‘sponsored by an approved sponsor’, the MRT can only review the visa application if:
Labour Agreements are arrangements negotiated between employers and the Minister for the employer to nominate a certain number of non-Australian workers in specified occupations within a certain time frame. There is no ‘sponsorship application’ as for standard 457 applications, and the Minister’s decision is final and cannot be reviewed.
One of the criteria for a 457 visa in the Labour Agreement stream is that the applicant is ‘nominated by a party to a Labour Agreement’. There must also be ‘an [approved] nomination of an occupation in relation to the visa applicant’ for one of the occupations specified in the Labour Agreement.
This raised a question as to whether 457 visa applications lodged on the basis of a Labour Agreement must be ‘sponsored by an approved sponsor’ and so cannot be reviewed in the following circumstances:
In the above circumstances, the MRT decided that it had no power to review the visa refusal, because:
On 13 December 2011, the Federal Magistrates Court decided to overturn the MRT decision. The Court found that while ‘an [approved] nomination of an occupation in relation to the visa applicant’ and ‘a nomination by a party to a Labour Agreement’ are criteria for the grant of a 457 visa in the Labour Agreement stream, this is not the same as a criterion that the applicant be ‘sponsored by an approved sponsor’. As a decision to refuse a 457 visa application under the Labour Agreement stream is not a decision where it is a criterion for grant that the applicant is ‘sponsored by an approved sponsor’, the restriction on the MRT’s power does not apply to such visa applications.
In reaching its decision, the Court also found:
At this stage, it is unclear whether the Minister for Immigration will appeal the Court’s decision to the Federal Court. Such an application may affect the legal standing of the decision described above. For this reason, it is important that people involved in 457 visa applicants under the Labour Agreement stream seek up-to-date and personalized legal advice.
If you are involved in a case where a 457 visa application has been refused and the Labour Agreement is still pending, please click this link to contact Visa Lawyers Australia for assistance with your application for review or an appeal.