Thapa (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, subclass 186 (Employer Nomination Scheme), specifically under the temporary residence transition stream. The applicant, Ms. Thapa, had her visa application refused because her employer's nomination for the position of Marketing and Sales Manager was initially refused by the Department. The applicant sought review of this refusal.

The primary legal issue before the Tribunal was whether the applicant met clause 186.223(2) of Schedule 2 to the Migration Regulations. This clause requires that for the temporary residence transition stream, the nominated position must have been approved, the applicant identified as the relevant visa holder in the nomination, and the position must be the one declared for the visa application.

The Tribunal found that the employer, Louenhide Pty Ltd, had identified the applicant as the relevant visa holder for the nominated position. Crucially, the Tribunal noted that a previous decision by the Department to refuse the nomination had been set aside by the Tribunal on 4 July 2018, and a decision to approve the nomination had been made. Consequently, the Tribunal concluded that the applicant met clause 186.223(2).

Given this finding, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant meets the criteria under clause 186.223 of Schedule 2. The Minister was to consider the remaining criteria for the subclass 186 visa.