BORYSENKO (Migration)

This matter concerned an application for review of a decision to refuse Temporary Business Entry (Class UC) visas, specifically Subclass 457 (Temporary Work Skilled), for Ms Oleksandra Borysenko and Mr Tymur Karimi. The primary applicant, Ms Borysenko, had been nominated for the occupation of Procurement Manager by Bella Bagno Pty Ltd, a company owned by Mr Karimi, who was the secondary applicant and her partner. The review was heard by the Migration and Refugee Division of the Administrative Appeals Tribunal.

The central legal issue before the Tribunal was whether Ms Borysenko met the requirements of clause 457.223(4)(aa) of the Migration Regulations 1994. This clause mandates that the nominated occupation must be specified in a written instrument that is in effect at the time of the decision. The Tribunal also considered the application of Mr Karimi, which was contingent on Ms Borysenko meeting the primary criteria as a member of the same family unit.

The Tribunal reasoned that while the nominated occupation of Procurement Manager was included in the relevant instrument when the visa application was lodged, it was subsequently removed by a new instrument, IMMI 17/060, which applied to nominations made before 1 July 2017 but not yet finally determined. As the occupation was no longer listed in the operative instrument at the time of the decision, Ms Borysenko did not satisfy clause 457.223(4)(aa). Consequently, as Ms Borysenko did not meet the primary criteria, Mr Karimi's application, based on being a family unit member, also failed.

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