Tokalenko (Migration)

This matter concerned an appeal by a visa applicant against a decision of the Administrative Appeals Tribunal (the Tribunal) regarding a Temporary Business Entry (Class UC) visa, Subclass 457. The applicant sought to have the Tribunal's decision remitted for reconsideration.

The central legal issue before the Tribunal was whether the primary visa applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994, which mandates that there must be an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The applicant contended that the delegate should not have refused the visa application while an associated nomination was still being considered by the Department of Immigration, and that the case should therefore be remitted pending the decision on that nomination.

The Tribunal acknowledged that while the issue before it was solely whether the applicant was the subject of an approved nomination, it had received evidence and submissions regarding a nomination that was still under consideration by the Department. The Tribunal noted the sincerity and credibility of the evidence provided by both the applicant and his employer regarding the nominated role and the business's operations. Consequently, the Tribunal decided to delay its decision-making on the Subclass 457 visa case until a decision on the nomination then before the Department was made.

The Tribunal remitted the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the criteria specified in clause 457.223(4)(a) of Schedule 2 to the Regulations.