AFK INTERNATIONAL PTY LTD (Migration)

AFK International Pty Ltd sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse a nomination application under the Employer Nomination Scheme (ENS). The applicant, AFK International, had nominated a position for a skilled worker. The Minister's decision was based on the assessment that AFK International did not have the financial capacity to pay the full-time salary for the nominated position, as required by the relevant migration regulations.

The primary legal issue before the Federal Court was whether the Minister's assessment of AFK International's financial capacity was lawful. Specifically, the court had to determine if the Minister had erred in law by considering the applicant's significant net liabilities when assessing its capacity to meet the salary obligations for the nominated employee. The applicant argued that the assessment should have focused solely on its cash flow and available funds, rather than its overall balance sheet.

Justice Sanderson found that the Minister was entitled to consider the applicant's net liabilities as part of the overall assessment of financial capacity. The Migration Regulations require an employer to demonstrate they have the financial capacity to meet the salary for the nominated position. This involves a holistic assessment of the business's financial position, not merely its immediate cash on hand. The court held that the Minister's approach, which took into account the applicant's liabilities, was a reasonable interpretation of the regulatory requirements and did not involve an error of law.

The application for judicial review was dismissed.