Gosavi Pty Ltd (Migration)

Gosavi Pty Ltd sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse its application for approval of a nomination of a position under the direct entry stream of the Temporary Skill Shortage (TSS) visa program. The applicant argued that the delegate erred in finding that there was not a genuine need for the nominated position. The matter was heard by Hoffman J in the Federal Court of Australia.

The central legal issue before the Court was whether the delegate's conclusion that Gosavi Pty Ltd had failed to demonstrate a genuine need for the nominated position was affected by an error of law. This involved considering whether the delegate had properly assessed the evidence presented by Gosavi Pty Ltd regarding the tasks associated with the position, the company's attempts to recruit an Australian citizen or permanent resident, and the impact of COVID-19 restrictions on those recruitment efforts. The Court also had to consider the circumstances of the company's directors, one of whom resided overseas and the other who had other business interests, in the context of the genuine need assessment.

Hoffman J found that the delegate had failed to properly consider the evidence regarding the genuine need for the position. The delegate's reasoning did not adequately address the applicant's explanations for why it was unable to recruit locally, including the impact of COVID-19 travel restrictions and the specific skills required for the role. The Court held that the delegate had placed undue emphasis on the directors' other business interests and overseas residency without sufficiently weighing the evidence demonstrating the necessity of the nominated position for the ongoing operation of Gosavi Pty Ltd. Consequently, the decision under review was set aside.