Powerflo Solutions Pty Ltd (Migration)

Powerflo Solutions Pty Ltd sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to approve a nomination for a visa under the Medium-term stream of the Temporary Skill Shortage (TSS) visa program. The applicant argued that the delegate erred in finding that the nominated position was not a genuine, full-time position.

The primary legal issue before the Federal Court was whether the delegate's conclusion that the nominated position was not genuine was affected by an error of law. This involved an assessment of whether the delegate properly considered the evidence presented regarding the nature of the employment and whether the position met the requirements of the relevant legislative instrument, specifically concerning the genuineness and full-time nature of the role.

Justice Dougall found that the delegate had made a jurisdictional error by failing to consider relevant evidence and by applying an incorrect test when assessing the genuineness of the position. The delegate had incorrectly focused on the applicant's intention to employ the nominee rather than the objective reality of the position itself. The court held that the delegate should have considered all the evidence to determine if the position was genuinely available and full-time, irrespective of the employer's subjective intentions. The decision of the delegate was set aside.