Sharma (Migration)

[2017] AATA 2443

Sharma (Migration) [2017] AATA 2443 (23 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amit Sharma
Mrs Rekha Sharma
Master Aayan Sharma

CASE NUMBER:  1602190

DIBP REFERENCE(S):  BCC2015/3736896

MEMBER:Kate Timbs

DATE:23 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the criteria for a Subclass 186 (Employer Nomination Scheme) visa in clause 186.223 of Schedule 2 to the Migration Regulations.

Statement made on 23 November 2017 at 10:10am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Delegate refused to approve sponsor nomination – Nomination approved on review – Valid nomination at time of decision

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 5.19, Schedule 2, cl 186.223, cl 186.311

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 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (the Act).

2. Mr Amit Sharma applied to the Department of Immigration for the visas on 8 December 2015. Mr Sharma is the primary applicant and the other applicants are his family members.

3. The delegate refused to grant the visas on 12 February 2016.

4. Mr Sharma applied for review of the decision on 23 February 2016. The Tribunal heard the application for review on 6 November 2017.

   RELEVANT LAW AND ISSUES

5. Mr Sharma applied for a visa in Temporary Residence Transition stream for him to work in the nominated position of Project or Program Manager for Law in Order Pty Ltd (Law in Order). This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years and the employer has nominated them to work in a permanent position in the same occupation.

6. To be granted the visas, Mr Sharma and the other applicants must satisfy the relevant criteria in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Mr Sharma must meet the primary and common criteria and the other applicants must satisfy the secondary criteria. They cannot meet the criteria in clause 186.311 unless Mr Sharma meets the primary criteria and is granted the visa.

7. At the time of application, the primary criteria in clause 186.223 were satisfied if:

   ·the position that relates to the visa application is nominated in an application for approval by the Minister under regulation 5.19 in the Temporary Residence Transition stream;

   ·the nomination identifies the visa applicant as the holder of a Subclass 457 visa;

   ·the applicant declared in the application that the position is nominated for approval under regulation 5.19;

   ·the Minister has approved the nomination;

   ·the nomination has not been withdrawn;

   ·the position is still available to the applicant; and

   ·the applicant applied for the visa no more than six months after the Minister approved the nomination.

8. On 22 December 2015, a delegate of the Minister refused to approve Law in Order’s nomination and found Mr Sharma did not satisfy clause 186.223 for that reason. The delegate in this matter then refused to grant Mr Sharma’s visa on that basis and refused to grant the other visas on the basis that Mr Sharma did not satisfy the primary criteria and did not hold the visa.

9. To deal with Mr Sharma’s application for review, the Tribunal reconsidered whether he satisfied clause 186.223.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence

10. The Tribunal considered evidence in the files of the Department of Immigration for approval of the nomination and in the visa application file. It heard evidence from Law in Order and from Ms Sharma at a combined hearing. Ms Claire Oostveen, solicitor, represented Mr Sharma and made submissions at the combined hearing.

    Nomination of a position

11. As noted above, Law in Order nominated the position that relates to Mr Sharma’s visa application in an application for approval by the Minister in the Temporary Residence Transition Scheme and it identified Mr Sharma as the relevant holder of a Subclass 457 visa. The Department’s file does not contain the visa application but the Tribunal has no reason to doubt that Mr Sharma made the relevant declaration that the position was nominated under regulation 5.19.

12. The Tribunal (as presently constituted) heard Law in Order’s application for review of the decision to refuse approval of its nomination under regulation 5.19. Before making this decision, it set aside that decision and substituted the decision to approve it.

13. At the date of this decision, Law in Order has not withdrawn the nomination and the position is still available to Mr Sharma. Finally, Mr Sharma did not apply for the visa more than six months after the Tribunal (in place of the Minister) approved the nomination.

14. The above findings mean Mr Sharma satisfies the criteria in clause 186.223. The Tribunal will set aside the decisions under review for that reason and send the matter back to the Department. It will consider whether he meets the other criteria and decide whether to grant him a visa. If so, it will consider whether the secondary visa applicants satisfy all relevant secondary criteria and decide whether to grant them visas.

    DECISION

    The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the criteria for a Subclass 186 (Employer Nomination Scheme) visa in clause 186.223 of Schedule 2 to the Migration Regulations.

    Kate Timbs
    Member