Arun Kumar (Migration)

The applicant, Arun Kumar, sought judicial review of a decision made by the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The delegate had refused to approve Mr. Kumar's nomination for the occupation of Gardener (General) under the Employer Nomination Scheme (subclass 186). The Administrative Appeals Tribunal had previously affirmed this refusal.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the delegate had erred in law by failing to properly consider the genuineness of the nominated position. Specifically, the court was asked to determine if the delegate had undertaken a qualitative assessment of the position, or if the refusal was based solely on a quantitative assessment of the business's size and capacity to sustain a full-time gardener.

Her Honour Judge Sheridan Lee found that the delegate had indeed undertaken a qualitative assessment of the nominated position. The delegate's reasoning, which considered the size of the business and whether it could genuinely sustain a full-time gardener, was a relevant and lawful consideration in assessing the genuineness of the employment position. The court held that the delegate was entitled to conclude that the position of Gardener (General) was not a genuine position that could be sustained by the applicant's business.

The application for judicial review was dismissed.