Nominations and visa cancellations before the Administrative Appeals Tribunal – all issues are to be decided by the AAT, not just the criterion in dispute.

In reviews to the AAT on nomination refusals and visa cancellations, unlike visas, the AAT makes the final decision, either to approve the nomination or affirm the refusal or in visa cancellations, to overturn the visa cancellation and restore the visa or affirm the cancellation.

Many migration advisors are not aware that when applications for review are made the whole nomination application has to be proven again in total based on updated information as at the date of hearing before the AAT.

I have seen many cases where an applicant for review is thrown off balance by this requirement and often it causes a loss before the AAT.

In visa refusals, by contrast, the AAT generally only decides the review based on the criterion in dispute (although in some circumstances with proper notice to an applicant it can drift into other areas)

Recently I saw a case where the nomination was refused on non-compliance with the now repealed training benchmark. However even though the AAT decided that issue in favour of the review applicant employer, the AAT went on to consider that the terms and conditions were no less favourable to what an Australian employee might earn. The employer failed to appreciate what was required and the AAT refused the nomination.

Properly prepared the employer would have had the information. The exact regulation in question was Reg 5.19(3)(e) [regulations as at 29 June 2017] which states:

“(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(i)  are provided; or

(ii)  would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location;”

That the AAT makes the whole decision on an employer nomination comes from s349(2)(c) of the Migration Act which states :

“The Tribunal may

(c)      if the decision relates to a prescribed matter — remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations;’

A prescribed matter is defined in Reg 4.15 :

‘Reg 4.15  Tribunal's power to give directions

(1)  For paragraph 349(2)(c) of the Act (which deals with the Tribunal's power to remit):

(a)  an application for a visa….is a prescribed matter; and

(b)  subject to subregulation (4), a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa….”

Nominations and visa cancellations are not prescribed matters, so in such cases the AAT becomes the decision maker and literally ‘steps into the shoes of the decision maker’. Here is how the High Court recently described the fole of the AAT:

“The merits review function of the AAT is "to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review"” [Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [51]].

In the case I saw, the occupation in the employer nomination was that of motor mechanic and the salary was set at $56,00 plus superannuation. The relevant award was the Vehicle Repair, Services and Retail Award 2020 and the highest award rate was $984.10 a week, about $52,000 per year. So all the employer had to do was present the award to the AAT to prove Reg 5.19(3)(e).

Of course there is no time of application and time of decision dichotomy in the case of nominations so all the evidence to prove all parts of Reg 5.19 has to be presented as at time of hearing by the AAT, which can be sometimes 2 years or even more after the nomination application was lodged. However the law to be applied in nomination cases is the law in existence at time of nomination application.

Visa cancellation

The same applies to visa cancellations. However in visa cancellations, the AAT is bound by the process started by the delegate. For example in relation to incorrect information supplied in the visa application, the process is to a large extent determined by the contents of the notice or intention to cancel as set out in ss108 and 109: 

Section 108 - Decision about non-compliance 

The Minister is to:

(a)  consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)  decide whether there was non-compliance by the visa holder in the way described in the notice.

Section 109 - Cancellation of visa if information incorrect 

(1)  The Minister, after:

(a)  deciding under section 108 that there was non-compliance by the holder of a visa; and

(b)  considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

(c)  having regard to any prescribed circumstances;

may cancel the visa.

(2)  If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

In a 108/109 visa cancellation the AAT can not drift into other grounds of visa cancellation in order to justify the visa cancellation.

Keep the employee employed in the contested occupation

In both employer nominations and visa cancellations keep the employee employed in the job right up to the day of hearing (and beyond of course). 

Having the employee there working and being paid continuously from the day of nomination refusal or visa cancellation right up to the day to day of hearing in the AAT adds enormously to the psychological momentum of a case. It signals to the AAT that this employee is capable of doing the job and is needed by the employer. It also help prove financial viability of the business and the ability to pay the nominated employee. Both the employer and employee have to conduct their lives as if they will be successful. If the employee has left the business it sucks a lot of positive air out of a case.

In visa cancellation cases, the former visa holder has the right to apply for a BVE – see clause 050.212(4)   as a ground for obtaining a BVE when the visa is cancelled: 

“(b)  the applicant has applied for merits review of a decision to cancel a visa;”

Therefore the former visa holder has to apply to the AAT immediately and then apply for the BVE which is usually granted with permission to work.