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AR LAW Services  |  Lawyers & Consultants  |  Masters of Australian Migration and Visa Law

Big win in 457 visa applicants – Breakthrough in Lee’s case

As note in by Lewis & Bollard there was an important decision last Friday when Justice Street, sitting in the Federal Circuit Court at Sydney, handed down a decision finding in favour of the applicant in a case with the following facts: 1 A Subclass 457 visa application was refused as an associated nomination had been refused. 2 A new nomination was lodged with the Department. 3 Seven minutes after the new nomination was lodged with the Department an application for review of the decision to refuse the Subclass 457 visa was lodged with the tribunal. 4 Following the decision in Lee the tribunal found that it did not have jurisdiction to review the visa refusal as an approved nomination was not in force when the review application was lodged. 5 The applicant appealed to the Federal Circuit Court against this decision

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So what did Lee mean in 457 visa applications: Well 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 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2. 457 Application not withdrawn, so it was refused due to no approved nomination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

IF you or anyone you know is thinking of applying for a 457 visa or if your 457 visa has been refused or cancelled talk to AR LAW Services either:

Call     03 96140218    or email to book a free initial 30 minutes consulation at our Melbourne office.