Subclass 482 nomination approvals remain in force during the AAT review process


 

Subclass 482 nomination approvals remain in force during the AAT review process
By Lorenzo Boccabella, BA, LLB, a specialist in migration law (14 September 2020)

Some case officers do not seem to be aware that a nomination approval in relation to a subclass 482 visa remains in force beyond 12 months. Of course the old rule for the subclass 457 visa was that a nomination would expire 12 months after the approval date. One then had to obtain a new nomination and then have that new nomination linked up to the subclass 457 visa, if the AAT review process was going to extend beyond the 12 months validity of the nomination approval.

All that has now changed. The regulations were amended to allow the nomination to remain in force for the duration of the visa grant process (no longer limited to 12 months), including any review by the AAT. This is found in Reg 2.75(2)(ba) (promulgated in the Migration Amendment (Skilling Australians Fund) Regulations 2018):

Reg 2.75(2)  An approval of a nomination ceases on the earliest of:

(a)  the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved work sponsor; and 

(b)  12 months after the day on which the nomination is approved unless, at that time, there is a visa application made by the nominee on the basis of the nomination that has not been finally determined; and

(ba) if a visa application made by the nominee on the basis of the nomination is finally determined or withdrawn after 12 months after the day on which the nomination is approved—the day on which the visa application is finally determined or withdrawn; 

It is rather clumsily word but it is all explained in the Explanatory Statement (ES) which accompanies the regulatory amendment. The  ES says:

Item 30 – Paragraph 2.75(2)(b)

This item amends regulation 2.75, which deals with the period of approval of a nomination in relation to a holder of a Subclass 457 visa, or a holder of, or applicant or proposed applicant for a Subclass 482 visa.  The regulation provides for a range of scenarios in which the approval of a nomination will cease.

Previously, paragraph 2.75(2)(b) provided that a nomination would cease 12 months after the day on which the nomination was approved, if it had not already ceased under one of the alternative scenarios (‘the 12 month rule’).  The effect of the amendment is that the 12 month rule is qualified so that it does not apply if a Subclass 482 visa application made on the basis of the nomination has not been finally determined.  This change was necessary because it is no longer possible to obtain another nomination in relation to the same visa application.  Legislative changes that took effect on 18 March 2018 to support the integrity of the new Subclass 482 visa included provisions to prevent employers making repeat nominations in relation to a Subclass 482 visa application.  The new rule is that there can only be one nomination per Subclass 482 visa application.  This rule could produce the unintended consequence that an unfinalised visa application could not be approved because the nomination had expired under the 12 month rule.  To avoid this problem, new paragraphs 2.75(2)(b) and (ba) link the cessation of approval of the nomination to the finalisation of processing of the related visa application, including an allowance for any review of the visa refusal decision by the AAT under Part 5 of the Migration Act.  This is covered by the expression ‘finally determined’ (defined in subsection 5(9) to (9B) of the Migration Act).

As provided by subclause 7602(4) in Part 76 of Schedule 13 to the Migration Regulations (inserted by item 43), this amendment applies to nominations made on or after 18 March 2018, which was the commencement date of the new nomination provisions, including the limitation to one nomination per Subclass 482 visa application.  The effect is that no nominating employer or visa applicant will be negatively affected by the 12 month rule in its previous form.

The ES is very clear but migration agents are reporting to me that case officers are telling them that a nomination has expired, even though the client has successfully sought review in the AAT on the subclass 482 refusal.  This or course is contrary to Reg 2.75(2)(ba). The reason for the change was that there can now be only one nomination for a subclass 482 visa.

For a case work to work its way through to the tribunal it can take up to two years. This is advantageous for subclass 482 visa holders who have trouble meeting the English language requirements. Because the English language requirements are time of decision, it is the tribunal’s time of decision at which the English requirement is ultimately assessed.

One final point, if the both the nomination AND the subclass 482 visa application are refused then one must make two separate applications for review to the AAT, one against nomination and one against the visa refusal. Remember there is no time of application/time of decision dichotomy in relation to nominations. This has particular advantage in relation to a review to the AAT of a nomination. It means as defects in the nomination can be cured at the review stage.

Sometimes the sponsorship is refused as well, in which there would need to be a third separate application for review to the AAT.  One would then apply to the AAT to have all three applications listed at the same time for hearing.

Lorenzo Boccabella 14 September 2020

Divya Aggarwal