457 Visas: Getting an Adjournment to Get Evidence of a New Nomination
Is the Tribunal required to hold a separate hearing to determine whether it should grant an applicant's request for an adjournment?
And if the Tribunal doesn't hold the separate hearing, has it fallen into jurisdictional error? If it declines to allow the hearing on the adjournment request, has it acted "unreasonably" in the legal sense?
Here is the case:
The applicant had sought a 457 visa.
The application was refused in the first instance by a Departmental officer on the basis that the officer was not satisfied that the position associated with the nominated occupation was genuine.
After the applicant sought review before the Tribunal, the Tribunal wrote to her seeking information to demonstrate either that she was the subject of an approved nomination that had not ceased, or alternatively, that she would be able to meet this requirement in the near future by, for example, providing information to demonstrate that she had the support of an approved business sponsor and that a nomination application for her was being processed by the Department.
What happened at the hearing before the Tribunal was that the applicant explained that a nomination application was pending before the Department, but had not yet been approved. The applicant asked the Tribunal to postpone making a decision on her visa application until the Department had finalized its review of the nomination. The Tribunal agreed to this request.
However, the Department then proceeded to refuse the nomination application, again on the basis that the occupation for which the applicant had been nominated as not genuine.
After the nomination was refused, the applicant contacted the Tribunal and informed it that she was organizing a new sponsor. She told the Tribunal that she had applied for other jobs, had interviews scheduled with them, and that some of the potential employers had indicated they were interested in sponsoring her.
The applicant asked the Tribunal to defer making a decision on her 457 visa application so that she could pursue the other employment and sponsorship opportunities.
However, the Tribunal refused to grant the applicant a further adjournment. It proceeded to affirm the Department's decision refusing the 457 visa application. It was the Tribunal's view that there was no indication that the original sponsor (whose nomination application had been refused) intended to apply for review of that refusal; and it was not satisfied that there would be an approved nomination in respect of the applicant in the foreseeable future.
The applicant then argued, both before the Federal Circuit Court and the Federal Court (on appeal from the FCC's decision) that the Tribunal's duty to act reasonably required it to hold a hearing on the adjournment request and to allow her to present evidence about the steps which she had taken to find alternative sponsors and how long she expected that it would take to find a new sponsor.
This argument did not find favour in the Federal Court.
The lesson that emerges from this decision is that the question of whether the Tribunal is obligated to grant an adjournment to an applicant will turn on the specific issues and circumstances, and will be determined on a case by case basis. Sometimes it will be reasonable for the Tribunal to refuse to grant an adjournment, and other times it won't be.