The Federal Magistrates Court has confirmed that the Migration Review Tribunal (MRT) can review Department of Immigration and Citizenship (DIAC) decisions to refuse 457 visa applications that are based on a refused labour agreement.

Labour agreements are arrangements negotiated between employers and DIAC for the employer to nominate a certain number of non-Australian workers in specified occupations, and are regularly used in overseas recruitment for service industries, the mineral resources sector and the public service.

Aristotle Paipetis, of Sydney-based Visa Lawyers Australia, told Neos Kosmos that the ruling will allow applicants who have been refused a 457 visa to appeal, if the Labour Agreement applied for by their potential employer has been refused by DIAC.

Last month the Federal Magistrates Court overturned a decision by the Migration Review Tribunal that the Tribunal could not review applications where the employer did not have a Labour Agreement in place, and that Labour Agreement decisions themselves cannot be reviewed.

The court ruling comes following the case of a Bangladeshi citizen Ms. Sharma Islam, who in 2009 lodged an application for a 457 Business visa on the basis that her nominated occupation, “family day care worker”, was to be the subject of a labour agreement between her prospective employer Woden Community Services (WCS) and DIAC. Subsequently, DIAC refused the application for labour agreement approval lodged by WCS.

Visa Lawyers Australia represented Ms. Islam, and last month’s Federal Magistrates ruling which now allows the Migration Review Tribunal to review Ms. Islam’s appeal for a 457 visa and allows more time to try and have the Labour Agreement approved.

“At this stage, it is unclear whether the Minister for Immigration will appeal the court’s decision to the Federal Court. Such an application may affect the legal standing of the Federal Magistrate’s decision,” said Mr Paipetis, who added that it was important that those involved in 457 visa applicants under the Labour Agreement stream seek up-to-date and personalised legal advice.