Maharjan (Migration)

This matter concerned an application for review of a decision to refuse Subclass 457 visas for Mr. Maharjan, his wife, and their son. The primary dispute revolved around whether Mr. Maharjan was the subject of an approved nomination by a standard business sponsor that had not ceased, as required by the Migration Regulations 1994. The Tribunal was asked to affirm the refusal decision but also to consider a request for referral to the Minister.

The legal issues before the Tribunal were whether Mr. Maharjan met the criteria for a Subclass 457 visa, specifically the requirement for an approved and un-ceased nomination under cl.457.223(4)(a) of Schedule 2 to the Regulations. The Tribunal also had to consider whether the circumstances of the case warranted a referral to the Minister under s.351 of the Migration Act 1958 for potential discretionary intervention, given the applicants' request and the unique circumstances presented.

The Tribunal reasoned that the applicants did not satisfy the primary criteria for the visa because the company's nomination in respect of Mr. Maharjan had ceased. This cessation, coupled with legislative changes, meant that a new nomination could no longer be made to support their application. Consequently, the secondary criteria for the spouse and child were also not met. However, the Tribunal found that the case presented compellingly unique and exceptional circumstances, including an error by a previous iteration of the Tribunal and the impossibility of lodging a new nomination due to legislative changes. These factors, the Tribunal concluded, made it appropriate to refer the case to the Minister under s.351 of the Act, despite affirming the decision not to grant the visas.