Thapa (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 186 (Employer Nomination Scheme) visa, Temporary Residence Transition stream. The applicant, Mr Thapa, was the subject of the visa application, and the dispute centred on the refusal of his employer's nomination for the position he sought to fill. The decision was made by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 186.223, which pertains to the approval of a nomination. Specifically, the Tribunal had to determine if the nomination had been approved and not subsequently withdrawn, if there was no adverse information concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was made within six months of the nomination's approval.

The Tribunal noted that the applicant's employer's nomination had not been approved, a fact communicated to the applicant in a request for information. The applicant attributed this failure to an incompetent migration agent who neglected to submit the employer's work contract as part of the nomination process. While the Tribunal expressed alarm at the impact of migration agent incompetence on individuals seeking to establish a life in Australia, it was bound by the legislative requirements. The Tribunal found that there was no pending review of the nomination refusal at the time of its decision.

Consequently, the Tribunal concluded that the decision under review, which affirmed the refusal of the visa application due to the unapproved nomination, should be affirmed.