Update in 457 Lee Case for refused 457 Nominations

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Update in 457 Lee Case for refused 457 Nominations


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Old 08-09-2015, 01:13 AM
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Update in 457 Lee Case for refused 457 Nominations

Hi All -

I realise that many of the threads here are about Family visas, however there is an important development that has occurred re: 457 visas that people interested in that programme may be very interested in.

A problem had arisen late last year due to the case of Lee where the Federal Court essentially took the view that without an approved nomination, a 457 visa application could not be reviewed at the MRT (now AAT). This left many people whose 457 nomination was refused in a bad position, as they had no way to have their 457 application reviewed while they were waiting for a review of their nomination refusal at the AAT.

On Friday 7 August, the case of Kandel v Minister for Immigration & Anor [2015] 2013 7 August 2015 ("Kandel") was decided which established a new precedent that if an applicant has an undecided nomination lodged at the time of applying for AAT review of a 457 application, the AAT then has jurisdiction to review the associated 457 application. The sequence of events in Kandel essentially was:

1. 457 Nomination refused.
2. 457 Application not withdrawn, so it was refused due to no approved nomination
3. New nomination lodged with DIBP online
4. 7 minutes later, MRT review application for refused 457 application lodged

This may be helpful to those in a similar situation.

Best,

Mark Northam

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Old 08-10-2015, 02:12 AM
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Hi Mark, it seems that this decision has removed the impact of Lee and put things back to the status quo prior to the Lee decision. Good news for those who have nominations refused and re-lodged.

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Old 08-10-2015, 02:17 AM
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Hi Jeremy -

Yup, other than the proviso that the applicant has to have a lodged but not decided nomination at DIBP prior to lodging the AAT review. Now I wonder how the AAT is going to deal with the huge number of 457 review applications it previously had on board, but jettisoned as invalid after Lee, as these are now out of time to re-lodge.

Best,

Mark


Quote:
Originally Posted by Jeremy Hooper View Post
Hi Mark, it seems that this decision has removed the impact of Lee and put things back to the status quo prior to the Lee decision. Good news for those who have nominations refused and re-lodged.

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Immigration Lawyer and Registered Migration Agent

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Old 08-10-2015, 10:07 PM
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Would the best approach still be to (depending on the reason for refusal) re-lodge the nomination and then request DIBP link the still-pending 457 application to the new nomination?

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Old 08-10-2015, 10:54 PM
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Hi Maggie-May24 -

Yes, whether that ends up being a new nomination that DIBP processes quickly prior to the 457 being initially refused (unlikely) or another nomination that ends up being approved while the 457 is waiting for the AAT review - in which case the AAT may remit the application back to DIBP so there is not a long wait for a hearing, etc.

Hope this helps -

Best,

Mark Northam



Quote:
Originally Posted by Maggie-May24 View Post
Would the best approach still be to (depending on the reason for refusal) re-lodge the nomination and then request DIBP link the still-pending 457 application to the new nomination?

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Mark Northam
Immigration Lawyer and Registered Migration Agent

LLB, GradDipLaw, GradCertMigrLaw, BBA(Acctg) MARN 1175508
Northam Lawyers http://nlaw.com.au [email protected]
Co-Host, Coming 2 Oz live video show: https://www.facebook.com/groups/coming2oz/

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