Another CNA Immigration Success Story
The applicant contacted us requesting the approval of their Standard Business Sponsorship under the sponsorship accreditation provisions.
The company (low volume user) was required to meet the non-approval rate of less than 3 per cent for the previous two years. A low volume user is a sponsor who has lodged up to 9 employer nominations in the last two years.
The applicant had a single nomination refused in connection with their Standard Business Sponsorship and did not meet the non-approval rate as a result. Regardless, the non-approval rate is mathematically impossible for any applicant to achieve without a success rate of 100 per cent.
These circumstances were problematic because of a legislative instrument signed by the Minister stating the government policy for sponsorship is the absolute authority for case officers to follow.
Our migration agents presented the following facts in the applicant’s application for sponsorship accreditation –
- The government policy (absolute authority) was defective because it was mathematically impossible for any applicant to achieve a nomination refusal rate of less than 3 per cent.
- Any refusal will be a decision made as a result of jurisdictional error. This type of decision will involve the case officers application of inflexible agency policy, and a failure to consider whether to exercise appropriate discretion in light of reasonable circumstances with an intelligible justification.
- A refusal will prevent a case officer from exercising their discretion under law. Directions are not law. They are instructions, albeit made at the highest possible level within the department.
- A direction cannot purport to grant discretion to a ministerial delegate where no such discretion exists in migration law.
- A direction cannot require a ministerial delegate to come to a particular decision in a particular case or in a particular type of case
- A direction cannot take away or limit (“fetter”) any discretion that migration law gives to the ministerial delegate, as the exercise of any discretion must be ultimately left to the ministerial delegate so that an individual case is considered on its merits and
- A direction cannot attempt to change migration law or to narrow the interpretation of visa criteria.
- A direction helps ensure that all ministerial delegates (whether at a primary decision or merits review decision level) consistently weigh or take into account relevant matters that the Government believes to be important when exercising a discretion
The effect of the Ministerial Direction and government policy combined was that it limited 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.
Our client’s application to vary the terms of their Standard Business Sponsorship was approved.