Our client approached us with a request to make an application as an Accredited Sponsor under the Subclass 457 visa program. Businesses that are approved as ‘Accredited Sponsors’ receive priority processing for their applications, together with a range of other legal benefits.
The Department of Immigration and Border Protection’s Procedure’s and Advice Manual states that Category 3 applicants (IE our client) require a nomination non-approval rate of less than 3 percent for the previous two years.
With two nomination refusals (out of 9 lodgements in total) under consideration for our client, they were not going to meet the non-approval rate required by the Department. This was a problem, as the Minister for Immigration himself, has signed a legal authority known as a legislative instrument that expressly states the requirements for Accredited Sponsors are to be found in the Department of Immigration Policy Manual. If the policy requirements aren’t met, then as per the Minister’s signed authority, a business cannot be approved as an Accredited Sponsor.
The reality was our client had only one real nomination refusal that should have been considered adverse to its interests. The second refusal was due to the removal of an employee’s occupation from the skills list whilst the nomination was being processed. The cumulative effect of the legislative change was a refusal for our client that occurred through no fault of their own.
Even with a single nomination refusal, our client was not going to meet the Department’s non approval rate of less than 3 percent.
A submission was made that helped establish the Department Policy (which the Minister’s Legislative Instrument states is the absolute authority on the subject matter) is defective as we found it be mathematically impossible to achieve a nomination refusal rate of less than 3 percent.
If it is mathematically impossible to meet the Department’s requirements, we argued that a denial of Accredited Sponsor status due to our clients inability to meet the non-approval rate will involve jurisdictional error. Making such a decision will involve the delegate’s application of an inflexible agency policy and failure to consider whether to exercise an appropriate discretion in light of reasonable circumstances with an intelligible justification.
How is it mathematically impossible to meet the nomination refusal rate of less than 3 percent for Category 3 applicants (IE – Our Client)?
Low Volume users are not expressly defined in the policy document, however based on the above facts, it would be very reasonable to conclude that a ‘low volume’ user is an applicant who has employed anywhere between 1 and 9 Subclass 457 visa holders over the last 2 years.
Category 3 applicants must demonstrate a non-approval rate of less than 3 percent. This requirement is taken to mean the Department will provide an allowance for the refusal of 3 percent of nominations (Up to 9 in total) in the last 2 years.
The table below demonstrates the refusal rate of anywhere between 1 and 9 nominations:
Number of Refusals
As can be seen from the above table, it is mathematically impossible for any applicant to meet DIBP policy requirements. A single refusal will automatically exclude any applicant from approval as a Category 3 / Low Volume user.
We argued that an adverse decision for our client based on a single refusal will amount to jurisdictional error as the Department did not have the have the power to reach this determination. The decision would have been without any merit as it is impossible to calculate a non-approval rate of less than 3 percent for low volume applicants. The Department’s criterion were mathematically impossible to achieve.
The Minister’s authority titled Ministerial Direction (Direction No. 70 – Priority processing for standard business sponsors with accredited status) states that ‘The requirements for a standard business sponsor to receive Accredited Status are specified in Procedures Advice Manual 3 – Application for 457 Sponsorship Accreditation.’ It is the PAMS (IE DIBP policy) which state that a non-approval rate of less than 3 percent is required for Category 3 applicants.
We argued the PAMS were defective and incapable of supporting the Minister’s obvious intention to provide an allowance for nomination refusals to be taken into account when considering the approval of accredited sponsors under Category 3.
We felt that a refusal will have amounted to a failure to consider whether to exercise a discretion given by legislation. The discretion the Department were able to consider is found in the DIBP policy Manual on Ministerial Directions which state the following:
Directions are not law. They are instructions, albeit made at the highest possible level within the department.
cannot purport to grant a discretion to a ministerial delegate where no such discretion exists in migration law
Rather, a direction helps ensure that:
The effect of Ministerial Direction No. 70 and the corresponding government policy is they operated limit the case officers lawful ability to exercise their statutory discretion to consider the reasonableness of our submission, in circumstances where the Australian government has published legal requirements that are flawed and impossible to satisfy.
That is, any refusal for our client, despite their inability to meet the Department’s non approval rate of less than 3 percent would have lacked an intelligible justification.
Despite these issues, we are pleased to confirm our submission was accepted and that our client is now an Accredited Sponsor.