BORYSENKO (Migration)

[2018] AATA 86

BORYSENKO (Migration) [2018] AATA 86 (12 January 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Oleksandra BORYSENKO
Mr Tymur KARIMI

CASE NUMBER:  1614499

DIBP REFERENCE(S):  BCC2016/371010

MEMBER:Katie Malyon

DATE OF DECISION:  12 January 2018

DATE CORRIGENDUM

SIGNED:30 January 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1. The year ‘2017’ at the Date of the Decision Record on page 1 should be replaced with ‘2018’.

   Katie Malyon
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANTS:  Ms Oleksandra Borysenko
   Mr Tymur Karimi

   CASE NUMBER:  1614499

   DIBP REFERENCE(S):  BCC2016/371010

   MEMBER:Katie Malyon

   DATE:12 January 2017

   PLACE OF DECISION:  Sydney

   DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

   Statement made on 12 January 2018 at 2:59 pm

   CATCHWORDS

   Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work Skilled)) – Standard business sponsorship stream – Nominated position – Procurement manager –  Position removed from the list of eligible skilled occupations – Partner – Member of the same family unit

   LEGISLATION
   Migration Act 1958, s 65
   Migration Regulations 1994 rr 2.72(a), 2.72(aa) , 2.72(10) Schedule 2 cl 457.223

   STATEMENT OF DECISION AND REASONS
   
   

   APPLICATION FOR REVIEW

2. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

3. The visa applicants applied for the visa on 25 January 2016.

4. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 of the Regulations which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the Attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223 of Regulations.

5. The delegate refused to grant the visas on 8 September 2016 on the basis that cl.457.223 of the Regulations was not met because the first named applicant, Ms Oleksandra Borysenko, was not the subject of an approved nomination as required by cl.457.223(4)(a) of the Regulations.

   Background

6. Ms Borysenko applied for a Subclass 457 visa on the basis that she had been nominated for the position of Procurement Manager ANZSCO 133612 by her proposed sponsor, Bella Bagno Pty Ltd (the Company), a business owned and operated by her partner, the secondary applicant, Mr Tymur Karimi. The nomination application made by the Company was refused by the Department on 8 June 2016 on the basis that the delegate was not satisfied the position associated with the nominated occupation was genuine as required by r.2.72(10)(f) of the Regulations. The Company sought review of the delegate’s decision to refuse the nomination and the resultant refusal of Ms Borysenko’s Subclass 457 visa application which includes her partner Mr Karimi.

7. On 18 April 2017, the Minister announced significant changes to the Subclass 457 visa program.  Since that time, various legislative instruments have come into effect in relation to occupations which may be nominated for Subclass 457 visa purposes.  In respect of the delegate’s decision currently before the Tribunal, the relevant legislative instrument is IMMI 17/060: Specification of Occupations – Subclass 457 Visa which was made on 28 June 2017 and which commenced on 1 July 2017 (IMMI 17/060).  IMMI 17/060 removes various occupations from the list of eligible skilled occupations for Subclass 457 visa purposes including, relevantly, the occupation of Procurement Manager ANZSCO 133612.

8. The Tribunal wrote to the applicants on 5 September 2017 in relation to their application for review of the delegate’s decision to refuse their Subclass 457 visa application. In its letter, the Tribunal noted that, on 18 April 2017, the Minister announced significant changes to the occupations that can be nominated and approved for the purposes of a Subclass 457 visa. Further, the Tribunal noted that the nominated occupation of Procurement Manager ANZSCO 133612 has been removed from the list of eligible skilled occupations. The Tribunal invited the applicants to comment on or respond to its preliminary view that, as a result, their visa application may no longer meet the requirements in cl.457.233(aa) of the Regulations which requires that the primary applicant’s nominated occupation be specified in the relevant instrument for the purposes of r.2.72(a) or r.2.72(aa) of the Regulations at the time the Tribunal makes its decision.

9. The applicants’ then representative responded to the Tribunal’s invitation to comment.  The representative acknowledged awareness of the Minister’s significant changes to the skilled occupations that can be nominated and approved for the purposes of a Subclass 457 visa and, further, that the occupation of Procurement Manager ANZSCO 133612 was removed for the list.  She also noted that the applicants wished to proceed with the review application because withdrawing their review application would lead to the immediate need to sell or close the applicants’ business which could not be done within such a short timeframe.  In passing, the Tribunal notes that prior to the hearing, the applicants notified the Tribunal that they were no longer continuing with the services of their representative.

10. Ms Borysenko and Mr Karimi appeared before the Tribunal on 5 December 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages: however, the Tribunal notes that only occasional use was made of the interpreter by Ms Borysenko and Mr Karimi.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(aa) of the Regulations.

13. Clause 457.223(4)(aa) of the Regulations requires that the nominated occupation is specified in an instrument in writing for r.2.72(10)(a) or (aa) that is in effect. The relevant instrument is IMMI 17/060. This instrument makes specifications under r.2.72(10)(aa) of the Regulations and is expressed to apply to all nominations made on or after 1 July 2017 as well as all nominations made, but not finally determined, before 1 July 2017 (emphasis added). 

14. The Tribunal acknowledges that, when the applicants applied for their Subclass 457 visa, the occupation of Procurement Manager ANZSCO 133612 - in respect of which Ms Borysenko had been nominated by the Company - was included in the relevant instrument then applicable. However, with the commencement of IMMI 17/060, the occupation of Procurement Manager ANZSCO 133612 is no longer on the list and, accordingly, the Tribunal finds that the first named applicant, Ms Borysenko, does not meet the criteria in cl.457.223(4)(aa) of the Regulations. No claims have been made that she would meet any alternate criteria.

15. The application of Mr Karimi is based on his being a member of the family unit of a person who meets the primary criteria for grant of a Subclass 457 visa. As the Tribunal has found Ms Borysenko does not meet the criteria in cl.457.223(4)(aa) of the Regulations for the reasons outlined above, the decision to refuse Mr Karimi’s application must also be affirmed.

16. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Katie Malyon

    
    Member

    ATTACHMENT
    Extract from cl.457.223 to Schedule 2 to the Migration Regulations 1994

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)    the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)   the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)    each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)    the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)    subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)   achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)    it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

    oOOo