Akhmedov (Migration)

[2017] AATA 1129

Akhmedov (Migration) [2017] AATA 1129 (7 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sherzodbek Akhmedov

CASE NUMBER:  1615659

DIBP REFERENCE(S):  BCC2016/1997761 CLF2016/65221

MEMBER:Alison Mercer

DATE:7 July 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Training and Research (Class GC) visa.

Statement made on 07 July 2017 at 12:36pm

CATCHWORDS

Migration – Training and Research (Class GC) visa – Subclass 402 – Occupational Trainee stream – Subject of an approved nomination – Nominating organisation no longer an approved sponsor – Subclass closed to new applications – Insufficient information to justify ministerial referral

LEGISLATION

Migration Act 1958, ss 65, 140E, 351

Migration Regulation 1994, r 2.72I, r 2.57, r 2.75A, Schedule 2, cl 402.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 September 2016 to refuse to grant the visa applicant a Training and Research (Class GC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 6 June 2016. At the time of application, Class GC contained one subclass: subclass 402 (Training and Research).

3. The criteria for a subclass 402 visa are set out in Part 402 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Occupational Trainee stream, the Research stream, or the Professional Development stream.

4. In the present case, the applicant is seeking the visa in the Occupational Trainee stream. This stream is for persons who want to improve their occupational skills (including in the field of sport) through participation in workplace-based training in Australia. The delegate refused to grant the visa because the applicant did not meet cl.402.221 of Schedule 2 to the Regulations, which required that he was identified in a nomination by a training and research sponsor or an occupational trainee sponsor that met r.2.72I, where that nomination had not ceased under r.2.75A. The delegate noted that the applicant was identified in an occupational trainee nomination application made by The Trustee for the K T Trust on 1 June 2016, but that this nomination was administratively finalised on 22 July 2016, on the basis that the nominating organisation was not an approved Training and Research sponsor under s.140E(1) of the Act. The delegate further noted that this information was put to the applicant in writing but he provided no response. Accordingly, the delegate found that there was no evidence that the applicant was identified in any nomination made by an approved Training and Research sponsor or Occupational Trainee sponsor and therefore he did not meet cl.402.221(1)(a). Nor was there any evidence that the applicant was intending to undertake an occupational training program provided by the Commonwealth, as required by cl.402.221(1)(b). As such, the applicant was unable to satisfy cl.402.221 as a whole.

5. The Tribunal received a review application from the applicant on 29 September 2016, which was accompanied by a copy of the delegate’s decision. 

6. On 9 May 2017, the Tribunal wrote to the applicant to invite him to attend a hearing on 31 May 2017.  He was asked to provide any documents and/or submissions he intended to rely upon at least 7 days prior to the hearing. The Tribunal specifically requested that the applicant provided evidence that he was the subject of an approved nomination by a training and research sponsor or occupational trainee sponsor that had not ceased, as required by cl.402.221 in the Occupational Trainee stream.  The Tribunal noted that a nomination lodged and approved after 19 November 2016 would not satisfy this requirement, as cl.402.221 required a nomination that met r.2.72I and this regulation had been repealed on 19 November 2016.

7. On 14 May 2017, the Tribunal received a hearing response from the applicant indicating that he would be attending the hearing and wished the Tribunal to take evidence from the following witnesses: Mr Farhodbek Baltabaer, a friend, and Mr Darryl Scott, who could provide evidence about the Trustee for the K T Trust.

8. The applicant appeared before the Tribunal on 15 May 2017 to give evidence and present arguments.  However, the hearing was unable to proceed as the interpreter in the Uzbek and English languages engaged by the Tribunal did not speak the same dialect as the applicant.  The Tribunal therefore adjourned the hearing and subsequently notified the applicant that it had rescheduled the hearing for 7 June 2017 with a different interpreter. 

9. The applicant attended the Tribunal hearing on 7 June 2017, at the commencement of which it became apparent that the applicant and the new interpreter could not understand each other completely as they spoke different Uzbek dialects.  The Tribunal therefore adjourned this hearing and undertook to reschedule it when a suitable interpreter for Uzbek (as spoken in Uzbekistan and not a neighbouring country) and English could be found. On 9 June 2017, the Tribunal advised the applicant that the hearing had been rescheduled for 15 June with a new interpreter in Uzbek and English.

10. The applicant attended the hearing on 15 June 2017, and he and the Tribunal were assisted by the services of the interpreter in the Uzbek and English languages.  The Tribunal also took evidence from Mr Alisher Azizullaev, a friend of the applicant. At the commencement of the hearing, the applicant provided the following documents to the Tribunal:

    ·     undated letter from Darryl Scott in which he states that the applicant arrived from Uzbekistan as part of an agricultural exchange program in May 2015.  The applicant was originally nominated to work at Windarra Farm as his first cousin, Sador Akhmedov (a permanent resident who is married and expecting his second child shortly) was employed as assistant manager there and this would facilitate a smooth transition into this work environment and enable the applicant to gain experience for the exchange program. The agricultural exchange was for 1 year, at which time the applicant applied for a subclass 402 visa.  This visa was refused due to the migration agent used by the applicant having been suspended by the Department as a training provider. The applicant sought review of his visa refusal and has been on a bridging visa A awaiting his hearing at the Tribunal. The refusal of his visa had nothing to do with the merits of his case but was to do with the fact that the training organisation/migration agent had been suspended, and this was not communicated to the applicant or Mr Scott until the applicant’s visa had been refused, even though it appeared that the migration agent/training organisation knew of the suspension at the time that the applicant lodged his visa application.  Mr Scott states that the owners and managers of Windarra Farm are himself and his wife Donna Scott, and that the farm covers approximately 700 hectares, with a further 300 hectares under lease. The debt on the farm is $4 million plus dollars, serviced predominantly by Rural Finance.  Mr Scott states that his wife is also a full time lawyer who recently became a partner with SLM Law in Colac.  Mr Scott states that he and Donna live on the farm and have 4 children at St Mary’s Primary School in Colac.  Mr Scott further states that Windarra Farm is a dairy farm located about 20 kms south west of Colac, with 800 milking cows, supplying almost 7 million litres of premium milk. There are 5 full time employees and 1 part time.  Three of the employees are older former operators/owners of dairy farms with long employment history at Windarra Farm.  Sador Akhmedov, the assistant manager, is an employee of over 6 years’ standing and is highly skilled.  He is regarded as elite by veterinary, nutritionist and service providers in the Colac district.  He is featured for their dairy on the website of Breed ‘n Betsy, an acclaimed worldwide bovine training provider. Sador and management have mentored the applicant to develop similar skills in bovine reproduction and husbandry, and these skills are highly sought after in the dairy industry.  Mr Scott states that the applicant has been an outstanding employee over the last 2 years, and his relationship with his cousin and the other employees has been pleasing to note.  Mr Scott further states that the dairy industry has been in great turmoil over this period, and with the Murray Goulburn 2017/18 opening price very low, a recovery for that company, and the industry generally, may be some time away. It had therefore been a very stressful period. Although the applicant started as an employee gaining experience, he had become an integral part of the mostly stable employment structure at the farm.  It would be with much regret that Mr and Mrs Scott would see him leave.  As he had no formal qualification and his English was currently below IELTS level 6 (although he had been taking English classes in Geelong), the only foreseeable option to stay is the granting of permanent residence; and

    ·     letter dated 9 June 2017 from Sarah Henderson, MP, Federal Member for Corangamite to the Minister for Immigration and Border Protection, in which Ms Henderson states that she supports the applicant remaining in Australia as according to the owners and operators of the regional dairy farm on which he was working, the applicant has been an outstanding worker and an asset to their struggling and difficult to staff dairy farm. The farm owners, Mr Darryl and Mrs Donna Scott, vouch for the applicant and speak very highly of his abilities and willingness to work, and Ms Henderson lent her support and sought the Minister’s intervention to assist with the appeal.

11. The applicant told the Tribunal that because of what happened with Oztech, his case was refused (along with many other applicants in the same position as him) through no fault of his own. In response to the Tribunal’s query, the applicant said that he did speak with other registered migration agents before the hearing to see what options (if any) he might have in the event that his review was unsuccessful, but he was told that they could not act for him as he had lodged his review application himself online.  The applicant said that he and others strongly felt that they had been misled by Oztech, particularly as Oztech sent him and others a letter just before their visas were refused that suggested that they were going to be refused because they were from high risk countries, yet the reasons the Department gave for refusing their subclass 402 visas was that Oztech’s registration as a training organisation had been refused. Oztech never advised them of this.  He and his fellow trainees followed all the rules, yet their futures were affected by what happened with Oztech.

12. Mr Darryl Scott confirmed the contents of his letter, and added that it was a unique case and that they hoped that the Minister would intervene to allow the applicant to stay in Australia with Windarra Farm. Mr Scott said that he and his wife and the other employees at the farm had come to rely on the applicant, and it would cause everyone significant stress – emotional, practical and financial – if the applicant had to leave Australia.  Mr Scott said that he and the other employees would have to cover the applicant’s work, and this would be very difficult to do.  Mr Scott said that he and his wife are already stretched to capacity with their responsibilities for the farm, their children and Mrs Scott’s external job as partner in a law firm.  The existing employees are older employees, close or past retirement age: most of them do not want, or cannot, do the work being done by the applicant.  A younger employee recently left as he was appointed Assistant Manager on another dairy farm.  Therefore, there is significant reliance on the applicant.  Mr Scott said that he had spoken to 2 different migration agents after the refusal decision and was told that it would be difficult for the applicant to leave Australia and return after having had a visa refused onshore, and also that processing a visa offshore would take a significant period.  He confirmed that the applicant’s cousin (the Assistant Manager at Windarra Farm) was an Australian permanent resident, and would have taken out citizenship if he could have done so without losing his Uzbek citizenship.

13. Mr Scott said that he felt that Oztech had been deceptive towards Australian farmers and the applicants in relation to its Agricultural Exchange period.  He told the Tribunal that Oztech originally approached him with the suggestion that he could employ a trainee, and he was assured that this program would be able to continue without problems.  Mr Scott said that Gary from Oztech never advised him or the applicant (or other applicants for subclass 402 visas) that Oztech’s approval as a training organisation/nominator had been suspended, and that if he had known that, he could have changed to another training provider and retained the applicant on a new subclass 402 visa.

14. The Tribunal then took evidence from Mr Alisher Azizullaev, who told the Tribunal that he had known the applicant for 1.5 years, and that he knew that he was a good person who had a genuine hunger to study new farming methods and agricultural technology. He said from his own knowledge, the practice of agriculture in Australia was very different from Uzbekistan and the applicant (and others in the program) wanted to improve themselves through doing traineeships and working in Australia, then returning to Uzbekistan to use these skills.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant satisfies cl.402.221.

Sponsorship and nomination requirements

1. In order to satisfy cl.402.221, applicants in the Occupational Trainee stream must meet certain requirements relating to sponsorship and, in some cases, nomination, depending on whether or not the occupational training is to be provided by the Commonwealth.

2. If the occupational training is to be provided to the applicant by the Commonwealth, the requirements are: that a training and research sponsor or an occupational trainee sponsor has agreed, in writing, to be the approved sponsor in relation to the applicant, that the sponsor has not withdrawn its agreement and that the sponsor has not ceased to be an approved sponsor.

3. If the occupational training is not to be provided to the applicant by the Commonwealth, then the applicant must be identified in a nomination which meets the criteria in r.2.72I by a training and research sponsor or occupational trainee sponsor, and that nomination must not have ceased. Additionally, there must be no adverse information known to Immigration about the nominator or a person associated with the nominator, or it must be reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ are defined in r.2.57 of the Regulations.

4. Based on the oral and documentary evidence before the Tribunal, the Tribunal makes the following findings:

• Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) was an approved Training and Research and/or Occupational Trainee sponsor from 14 December 2012 to 13 December 2015;

• Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) applied to the Department on 16 November 2015;

• the Department refused to approve Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) as a training and research sponsor on 19 February 2016 and the company applied for a review of this decision to the Tribunal;

• the applicant was nominated for a subclass 402 visa in the Occupational Trainee stream by Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) on 1 June 2016 and lodged his subclass 402 visa application on 6 June 2016;

• the nomination application by Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) was administratively finalised by the Department on 22 July 2016 – no approval was made on the basis that the nominator was not an approved sponsor;

• the Tribunal (differently constituted) affirmed the Department’s decision not to approve Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) as a sponsor for Training and Research or Occupational Trainee purposes on 21 December 2016;

• there is no record that Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) sought judicial review of that decision; and

• the applicant has not been nominated for a subclass 402 visa in the Occupational Trainee or any other stream by the Commonwealth of Australia.

1. As discussed with the applicant at the hearing, the Tribunal is satisfied that, although it may have been intended that the applicant undertake a further program of training with the Windarra Farm, the nomination of the applicant for the training program that was lodged by Channel Tel Pty Ltd was not approved, on the basis that the Department had refused to approve the nominating company as a sponsor for these purposes.  As discussed with the applicant, this the sponsorship refusal was subsequently affirmed by the Tribunal (differently constituted).  It was not asserted by the applicant that he was, or had ever been, the subject of a nomination for a training program made by the Commonwealth, and there is no record that he was or is so nominated.  Accordingly, the Tribunal finds that he is not the subject of an approved nomination that satisfies cl.402.221(1)(a) or (b).

2. As further discussed with the applicant at the hearing, cl.402.221(1)(a) requires that any nomination of the applicant by a sponsor is approved and meets r.2.72I of the Regulations. However, r.2.72I was repealed on 19 November 2016 as part of a series of legislative amendments to the Regulations which also saw the abolition of the subclass 402 visa and its replacement with a new subclass 407 (Training) visa – see the Migration Amendment (Temporary Activity Visas) Regulation 2016. The effect of this is that the legacy visas and legacy sponsor categories are closed to new applications from 19 November 2016. Further, as at 19 November 2016 no new nominations for applicants for subclasses 401, 402 (Occupational Trainee stream) and 420 visas can be made, including by legacy sponsors and including for legacy visa applications made before 19 November 2016.[1]

   [1] Explanatory Statement, p.52

3. Therefore, the Tribunal finds that cl.402.221 is not satisfied and the applicant cannot be granted a subclass 402 visa.

4. The applicant has only sought to satisfy the criteria for a subclass 402 visa in the Occupational Trainee stream. No claims have been made in respect of the other visa streams. As requirements that must be met by a person seeking the visa in the Occupational Trainee stream have not been met, the decision under review must be affirmed.

5. Mr Scott and the applicant indicated that they intend to request Ministerial intervention pursuant to s.351 of the Act in the event of an unsuccessful outcome to this review application. This section provides the Minister with a non-compellable person discretion to intervene to make a more favourable decision if the Minister thinks that it is in the public interest to do so. There are guidelines as to what the Minister considers to be unique or exceptional circumstances, and what the Minister considers to be inappropriate to consider for intervention, on the Department’s website at: type="1">

6. The Tribunal notes that it does not appear that the applicant’s case falls within any of the circumstances identified as being inappropriate for referral to the Minister for consideration. There appear to be a number of guidelines for intervention that may potentially be relevant to the applicant and his circumstances on Mr and Mrs Scott’s farm, but there is insufficient material before the Tribunal for it to be satisfied that it justifies referral to the Minister without more evidence of hardship affecting an Australian. However, it remains open to the applicant and Mr and Mrs Scott to make a request for Ministerial intervention directly to the Minister themselves.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Training and Research (Class GC) visa.

Alison Mercer
Member