Gogna (Migration)

This matter concerned applications for Employer Nomination (Permanent) (Class EN) visas, Subclass 186 (Employer Nomination Scheme), Temporary Residence Transition stream, made by Ms. Gogna and Mr. Lutchmanah. The Tribunal was required to determine whether the primary applicant, Ms. Gogna, was the subject of an approved nomination, and consequently, whether the secondary applicant, Mr. Lutchmanah, met the criteria for the visa as a member of her family unit.

The central legal issue before the Tribunal was whether the applicants had satisfied the requirements of clause 186.223 of the Migration Regulations 1994, which pertains to the nomination of a position for the Temporary Residence Transition stream. Specifically, the Tribunal had to ascertain if the nominated position had been approved by the Minister and if this approval had not been subsequently withdrawn, among other conditions.

The Tribunal reasoned that the primary applicant had not provided evidence of an approved nomination. Correspondence from the Department indicated that the nomination submitted by FoodShala Pty Ltd had been refused, and subsequent review proceedings by the Administrative Appeals Tribunal (AAT) were found to be without jurisdiction due to the company's deregistration. This meant the nomination had not been approved. As clause 186.223(2) requires the Minister to have approved the nomination, and this condition was not met, the primary applicant could not satisfy the criteria for the visa. Consequently, the secondary applicant, Mr. Lutchmanah, could not satisfy clause 186.311 as he was not a member of the family unit of a person who had satisfied the primary criteria for the visa.

The Tribunal affirmed the decisions not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.