THAPA (Migration)

This matter concerned an appeal by the applicant, THAPA, against a decision relating to an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Temporary Residence Transition stream. The dispute centred on whether the applicant met certain criteria for this visa subclass. The decision was made by Wan Shum, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant met the criteria for a Subclass 186 visa, particularly in relation to the nominated position. This involved an examination of clause 186.223 of Schedule 2 to the relevant Regulations, which outlines specific requirements for the nominated position, the approval of the nomination, and the continued availability of the position to the applicant.

The Tribunal found that the nominated position met the requirements of subregulation 5.19(3) and that the applicant was identified as the holder of a Subclass 457 visa in relation to that position. Furthermore, the Tribunal determined that the Minister had approved the nomination, it had not been withdrawn, and there was no adverse information concerning the nominator or associated persons that could not be disregarded. Crucially, the Tribunal found that the nominated position remained available to the applicant.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration. The direction was that the first applicant met the criteria specified in clause 186.223 of Schedule 2 to the Regulations, implying that other criteria for the visa would also need to be assessed.