Skliarenko (Migration)

[2017] AATA 2344

Skliarenko (Migration) [2017] AATA 2344 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrii Skliarenko

CASE NUMBER:  1615572

DIBP REFERENCE(S):  BCC016/2124316 BCC016/59249

MEMBER:John Cipolla

DATE:13 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 November 2017 at 10:02am

CATCHWORDS

Migration – Training and Research (Class GC) visa – Subclass 402 (Training and Research)– Occupational Trainee stream – Subject of an approved nomination – Nomination application refused

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 402.221(1)

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 7 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 21 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(1) of Schedule 2 to the Regulations for the following reasons. The delegate noted that the applicant had been identified in an occupational trainee nomination application made by the Trustee for K T Trust on 14 June 2016. The delegate noted that the Trustee for K T Trust’s nomination application was refused by the Department of Immigration on 22 July 2016. The delegate concluded that as the applicant was not identified in an approved nomination by a training and research sponsor the applicant did not meet the requirements of cl.402.221(1)(a) of the Migration Regulations.

5. The applicant appeared via telephone before the Tribunal on 10 November 2017. The applicant conceded that he was not identified in an approved nomination by a training and research sponsor (K T Trust) as an occupational trainee and further conceded that he did not meet the requirements of cl.402.221(1)(a) of the Migration Regulations

6. 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 has been identified in an approved nomination by a training and research sponsor, in this case K T Trust. The evidence before the Tribunal indicates that K T Trust’s nomination application was refused by the Department of Immigration on 22 July 2016. The applicant confirmed that this was the case. The applicant further confirmed that he was not the subject of an approved nomination by a training and research sponsor. The applicant accordingly is incapable of meeting the requirements of cl.402.221(1)(a) of the Migration Regulations.

2. 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.

DECISION

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

John Cipolla
Senior Member