Accredited Sponsors receive priority processing for the Temporary Skill Shortage visa (subclass 482) (TSS) nominations and visa applications.
Employers seeking sponsorship accreditation must satisfy requirements of 1 of the following 5 categories at the time of application –
- Commonwealth, state and territory government agencies
- Australian Trusted Traders
- Low volume users and high percentage of Australian workers
- High volume users and medium percentage of Australian workers
- Major investment in Australia
Our client was unable to meet the requirements for category 3 applicants – ‘Low Volume Users and High Percentage of Australian Workers’.
A low volume user is a sponsor who has lodged up to 9 employer nominations in the last two years. Category 3 applicants must demonstrate a 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.
Our client was unable to meet the non-approval rate due to a single nomination refusal in connection with their Standard Business Sponsorship agreement.
We found that it is mathematically impossible for any applicant to satisfy the non-approval rate for category 3 applicants unless they demonstrate a success rate of 100 percent.
This was a problem because the Minister for Immigration has signed off on a legislative instrument stating the government policy for sponsorship accreditation is the absolute authority for case officers to follow.
We did not agree and presented the following facts to the Department of Immigration to support our clients request 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 cumulative effect of the Ministerial Direction and government policy 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 clients application for sponsorship accreditation was approved.