Tokalenko (Migration)

[2017] AATA 1582

Tokalenko (Migration) [2017] AATA 1582 (6 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ruslan Tokalenko

CASE NUMBER:  1701686

DIBP REFERENCE(S):  BCC2015/1559879

MEMBER:Karen Synon

DATE:6 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(a) of Schedule 2 to the Regulations.

Statement made on 06 September 2017 at 2:26pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Subject of an approved nomination – Notification of approval of nomination supplied

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The visa applicant applied for the visa on 1 June 2015.

3. 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 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.

4. The delegate refused to grant the visa on 12 January 2017 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

5. The applicant appeared before the Tribunal on 19 July 2017 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Benjamin Della Vedova.  The applicant, his representative and the applicant’s employer all travelled from Western Australia to attend the hearing in Melbourne.

6. The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Requirement for an approved nomination

9. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

10. The primary decision, a copy of which was provided to the Tribunal, records that the applicant had been nominated to the position of ‘Mixed Crop and Livestock Farmer’ by D Della & Sons Pty Ltd ATF The Dom Della Trust on 4 different occasions.  The first three of these were refused on: 24 May 2016; 15 July 2016 and 15 September 2016.  At the time of the primary decision on 12 January 2016 no decision had been made on the fourth nomination.

11. Throughout the course of the review a number of submissions and documents were received.  These include a letter of support from a Federal Member of Parliament and copies of what appear to be documents provided to the department in support of the nomination.  A letter to the Tribunal submits that the 4 nominations lodged in respect of the applicant were not largely identical as the department provided different reasons for why the nominations were refused.  In particular the letter contends that the delegate should not have refused the visa application while an associated nomination was still being considered by the department and that therefore the case should be remitted back to the department pending the decision on the associated nomination application.

12. At the hearing the Tribunal noted this submission and the documents supporting the last nomination application however stated that the only issue before the Tribunal on review is whether the applicant is the subject of an approved nomination.

13. Both the applicant and his employer Mr Benjamin Della Vedova gave evidence about the nature of the applicant’s tasks and the critical role he performs at the farm.

14. Following the hearing the Tribunal wrote to the department to enquire about the progress of the latest nomination and relevantly advised:

    Both the applicant and the nominating sponsor travelled from South West Western Australia to attend the hearing in Melbourne today and gave evidence in relation to the nomination currently before the delegate (although this was not the issue before the Tribunal).  The Member found their evidence be sincere and credible and encouraged the applicant company to provide the department with all further information including that the turnover of the farm last year was AUD $1.2-$1.4 million (with only 2 full time staff - the owner and the 457 nominee - and some seasonal workers).  Also that it provides 5% of Western Australia’s potato crop as well and running (currently) 250 head of cattle.  The Tribunal has agreed to delay its decision making on the 457 case until a decision on the nomination currently before the department is made.

15. On 6 September 2017 the department provided to the Tribunal a copy of the ‘Notification of approval of a nomination’ in respect of the applicant.  It is dated 5 September 2017.

16. On the basis of the information provided by the department the Tribunal is satisfied that the applicant is now the subject of an approved nomination that has not ceased.

17. For these reasons the requirements of cl.457.223(4)(a) are met.

18. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

19. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(a) of Schedule 2 to the Regulations.

    Karen Synon
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    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.