If the AAT makes a mistake on the nomination decision then the associated visa decision is also wrong

By Lorenzo Boccabella, Barrister-at-law and specialist in migration law

The long awaited decision of SINGH Jasbir v Minister for Immigration [2023] FCAFC 123 (released on 7 August 2023) does not affect the fundamental requirement that if the associated employer nomination decision is wrong then it infects the associated visa decision.

Nothing in Singh impacts on the fundamental correctness of Mora v Minister for Immigration and Border Protection[2018] FCA 1819 where I successfully challenged an associated subclass 457 visa refusal on the basis that the AAT has used an out of date version of the ANZSCO for affirming a nomination refusal.

The crucial reasoning in Mora is as follows:

54.The Minister further submitted that the effect of a finding that the nomination decision was affected by jurisdictional error did not have the effect that the first appellant was then subject to an approved nomination. To the contrary, in such event the first appellant would continue to fail to satisfy the requirement that she was the subject of an approved nomination.

55.However, in my view it is illogical that the visa decision could be valid notwithstanding the invalidity of the nomination decision. I take this view for the following reasons:

         Decisions relating to nominations and the grant or refusal of visas within this particular statutory context are inextricably linked. This was explained by the Tribunal itself in the visa decision at [12] and [16]. Although only criterion for the grant of a 457 visa, being the subject of an approved nomination is an essential aspect of a successful application for a 457 visa and a significant part of the consideration of the relevant decision-maker – see cl 457.223(4)(a).

         As a matter of fairness and logic, because the appellants have been successful in challenging the nomination decision, and the visa decision was made on the basis of that nomination decision, the visa decision should not stand. In this regard I also note that if it were the case that the visa decision remained valid and in force notwithstanding jurisdictional error in the nomination decision, an order quashing the nomination decision and remitting it for consideration by the Tribunal would essentially have no effect, and indeed no operation in relation to the purpose for which the application was made – being relevant in these circumstances to the employment of the first appellant by the Trust.

What happened in Mora was that the AAT used an earlier version of the ANZSCO for determining that the nomination of a sales and marketing manager was valid.  The tasks in the earlier ANZSCO version for sales and marketing manager were more restrictive.

Recently I obtained consent orders in the Federal Circuit and Family Court, to set aside a decision of the AAT which had affirmed a nomination refusal on what turned out to be an erroneous interpretation of the training benchmark.

The associated visa application was adjourned in the Court pending the outcome of Singh. What happened in Singhwas that the Full Federal Court found that the lower court was correct in finding no error in the AAT’s decision to affirm the nomination refusal.

In essence in relation to judicial review cases on employer nominations at all levels, it is essential to prove error in the AAT decision on the nomination.

Returning to my training benchmark case, we will now argue the AAT wrongly affirmed the associated visa refusal. Both the nomination and the visa decision therefore would then be both remitted to a reconstituted AAT.

Incidentally, if there is a problem with the training benchmark compliance by the employer then the solution is to reapply for a new standard business sponsorship. I have written an extensive blog on the transitional provisions relating to the training benchmark, but, cutting a long story short, any residual training benchmark only applies to the last standard business sponsorship held by the employer. Because (generally) there is no time of application/ time of decision dichotomy in employer nominations, a new sbs grant dissolves any training benchmark obligation.  

In summary Mora remains good law. Once the nomination decision is successfully challenged on judicial review, subject to question of materiality, any visa decision based on an incorrect nomination refusal should be subject of successful challenge on judicial review in the courts.

Returning to Singh, the court was divided as to whether a visa applicant could independently challenge the nomination decision.

No mention was made by the Full Court in Singh on the earlier Federal Court decision of Minister for Immigration & Multicultural Affairs v Seligman [1999] FCA 117 where the court held that an erroneous medical assessment by the Medical Officer of the Commonwealth, infected the associated adverse visa decision based on that erroneous medical assessment. That is an argument for another day.