C.J.Fulham & A.M.Mcharry & L.J.Mcharry & P Vondra (Migration)

This matter concerned an application for approval of a nomination of a position under the Temporary Residence Transition stream of the subclass 482 visa program. The applicants, C.J. Fulham and others, sought judicial review of a decision made by the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The core of the dispute revolved around the delegate's assessment of the nominator's financial capacity to provide full-time employment for the nominee for a period of two years.

The primary 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 nominator's financial capacity, particularly in light of the nominee's existing continuous full-time employment for over five years and the nominator's operational plans during COVID-19 restrictions. The court was required to determine if the delegate had adequately assessed the nominator's ability to meet its obligations, including the provision of salary and the maintenance of business operations, despite the challenging economic circumstances.

Her Honour, Judge Mercer, found that the delegate had failed to give sufficient weight to the evidence presented regarding the nominator's financial flexibility, including its ability to draw upon funds from associated entities. The court reasoned that the delegate's assessment was overly narrow and did not adequately account for the nominator's demonstrated capacity to sustain employment, particularly given the nominee's long-standing tenure and the nominator's strategic planning in response to the pandemic. The decision under review was therefore set aside.