Sharma (Migration)

[2020] AATA 2310

Sharma (Migration) [2020] AATA 2310 (22 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Janis Sharma

CASE NUMBER:  2004715

HOME AFFAIRS REFERENCE(S):          BCC2018/1114732

MEMBER:Susan Trotter

DATE:22 May 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl.457.324(2) of Schedule 2 to the Regulations

Statement made on 22 May 2020 at 12:10pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – inclusion of secondary sponsored person – written agreement from sponsor received – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.324

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 Home Affairs to refuse to grant the applicant a Temporary Business Entry (Class UC) Temporary Work (Skilled) visa (known as a Subclass 457 visa) under s.65 of the Migration Act 1958 (the Act).

2. On 8 March 2018, Mr Gokul Sharma applied for a Subclass 457 visa as the primary visa applicant, sponsored by Rehjam Food Services Pty Ltd t/a ZAOQ (Rehjam Food Services), to work in the nominated position of Cook. Mrs Karuna Rani was named as a secondary visa applicant in the application.

3. The most recent Standard Business Sponsorship approval granted to Rehjam Food Services was from 11 September 2017 until 11 September 2022.

4. The associated most recent nomination application by Rehjam Food Services in respect of Mr Sharma was approved on 31 July 2018.

5. On 17 October 2018, the applicant in these proceedings (the applicant), the son of Mr Sharma and Mrs Rani was born.

6. On 6 May 2019, a Subclass 457 visa was granted to the primary visa applicant and Mrs Rani.

7. On 18 October 2019, the Department was advised of the birth of the applicant.

8. On 21 October 2019, and on subsequent occasions, the Department requested that evidence be provided of the primary visa applicant’s sponsor’s agreement to inclusion of the applicant as a secondary sponsored person for the purposes of the sponsorship.

9. On 19 February 2020, the delegate refused to grant the applicant the visa on the basis that the requested agreement from the sponsor had not been received such that cl.457.324 of Schedule 2 of the Migration Regulations 1994 (the Regulations) was not met in relation to the applicant as required.

10. On 10 March 2020, the applicant lodged an application with the Tribunal for review of the delegate’s decision.

11. The Tribunal has received additional evidence, as canvassed later in these Reasons, and in light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

12. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant had met one of the subclauses in cl.457.324 which at the relevant time provided:

    457.324

    (1)The applicant is included in any nomination that is required in respect of the primary applicant.

    (2)If the applicant is not included in any nomination that is required in respect of the primary applicant:

    (a)    the standard business sponsor who has the most recent approved nomination under section 140GB of the Act, or under regulation 1.20H as in force immediately prior to 14 September 2009, of an occupation in relation to the primary applicant has agreed in writing that the applicant may be a secondary sponsored person in relation to the standard business sponsor; or

    (b)     the former standard business sponsor who has the most recent approved nomination under section 140GB of the Act, or under regulation 1.20H as in force immediately prior to 14 September 2009, of an occupation in relation to the primary applicant has agreed in writing that the applicant may be a secondary sponsored person in relation to the former standard business sponsor; or

    (c)    a party to the labour agreement who has the most recent approved nomination under section 140GB of the Act, or under regulation 1.20H as in force immediately prior to 14 September 2009, of an occupation in relation to the primary applicant has agreed in writing that the applicant may be a secondary sponsored person in relation to that party; or

    (d)     a former party to the labour agreement who has the most recent approved nomination under section 140GB of the Act, or under regulation 1.20H as in force immediately prior to 14 September 2009, of an occupation in relation to the primary applicant has agreed in writing that the applicant may be a secondary sponsored person in relation to that former party. 

14. The applicant was not included in any nomination in respect of the primary applicant because she was not then born. Therefore, cl.457.324(1) is not met.

15. The Tribunal has been provided with a letter from ZAOQ dated 8 December 2019 acknowledging and consenting to extending its sponsorship obligations to the applicant as a dependent of the primary visa applicant.

16. Notably the Department’s policy guidelines provide that if an approved nomination for a primary visa applicant did not list members of the family unit, a secondary applicant can be requested to provide written evidence from the sponsor/nominator that they agree for the secondary applicant to be included as a secondary applicant and that the written evidence should list all of the following information:

    (a)  registered name of sponsor;

    (b)  sponsorship approval reference number;

    (c)   nomination approval reference number (relating to the nomination for the primary applicant);

    (d)  full name and date of birth of primary applicant (nominee); and

    (e)  name and date of birth of each secondary applicant included in the visa application.

17. The information provided by ZAOQ, and further information provided by the applicant, includes all of the above information suggested by the Department’s guidelines that should be provided.

18. Given the above information, the Tribunal is satisfied that the standard business sponsor who has the most recent approved nomination of an occupation in relation to the primary visa applicant has agreed in writing that the applicant may be a secondary sponsored person in relation to the standard business sponsor such that cl.457.324(2)(a), and therefore cl.457.324(2) as a whole, is met.

19. Therefore, 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

20. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.324(2) of Schedule 2 to the Regulations

    Susan Trotter
    Member