Nutritional Choice Australia Pty Ltd v Minister for Home Affairs

Nutritional Choice Australia Pty Ltd sought judicial review of a decision by the Minister for Home Affairs to refuse a nomination approval for a Temporary Work (Skilled) visa. The applicant, which intended to establish a manufacturing plant for milk products, nominated an individual for the position of sales and marketing manager. The core of the dispute concerned whether this nominated position was genuine, given that the applicant's business had not yet commenced operations and the nominee was the primary investor, director, and shareholder of the applicant company. The matter was heard by Judge A Kelly.

The primary legal issue before the court was whether the position for which the nomination was made was a genuine position. This involved determining whether the applicant had established that the nominated position genuinely existed and was required for the applicant's business operations, and whether the nominee was appropriately qualified and experienced for that genuine position. The court also considered whether the failure to disclose the nominee's significant investment and directorial role constituted a jurisdictional error.

Judge A Kelly found that the position was not genuine. The court reasoned that for a position to be genuine, it must be a real job that exists and is needed by the employer. In this instance, the applicant's business had not commenced operations, and the nominee's substantial involvement as the primary investor, director, and shareholder raised significant doubts about the genuineness of the nominated role. The court concluded that the nominee's role was more akin to that of an owner or investor rather than an employee filling a genuine operational need. Consequently, the court found that the decision-maker had not made a jurisdictional error in refusing the nomination approval.

The application for judicial review was dismissed.