Kugashiya (Migration)

This matter concerned an appeal by Mr. and Mrs. Kugashiya against the refusal of their Subclass 186 Employer Nomination (Permanent) (Class EN) visas. The primary applicant, Mr. Kugashiya, sought a visa under the Temporary Residence Transition stream for the position of Travel Agency Manager. The sponsoring business had been deregistered, and its nomination application had been refused by the Department. The Tribunal was required to determine whether Mr. Kugashiya met the criteria for the visa, specifically clause 186.223(2) of Schedule 2 to the Regulations, and whether the matter warranted referral for Ministerial Intervention.

The central legal issue was whether the nomination for Mr. Kugashiya's position as Travel Agency Manager had been approved and remained valid, as required by clause 186.223(2). This clause mandates that the nomination must be approved, not subsequently withdrawn, and that the position must still be available to the applicant. Furthermore, the visa application must be made within six months of the nomination's approval, and there must be no adverse information known to Immigration about the nominator or associated persons, or such information must be reasonable to disregard.

The Tribunal reasoned that as the sponsoring company had been deregistered, its nomination application for the Travel Agency Manager position had been refused and the Tribunal lacked jurisdiction to review this refusal due to the company's cessation of existence. Consequently, the nomination had not been approved, meaning Mr. Kugashiya did not meet the essential criteria under clause 186.223(2). As Mr. Kugashiya failed to meet the primary criteria, his spouse, Mrs. Kugashiya, who applied as a member of his family unit, also could not meet the criteria for the visa. The Tribunal affirmed the Department's decision to refuse both applications. The Tribunal also considered the possibility of referral to the Minister under section 351 of the Act for a more favourable decision in the public interest, but ultimately concluded that the decision under review should be affirmed.