Sunshine Valley Group Pty Ltd (Migration)

Sunshine Valley Group Pty Ltd sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to approve its nomination of a position under the Employer Nomination Scheme (ENS) – Direct Entry stream. The applicant argued that the delegate erred in finding that it did not have the capacity to pay the nominated employee the full-time market salary for the position.

The primary legal issue before the Federal Court was whether the delegate had reasonably concluded that Sunshine Valley Group Pty Ltd lacked the financial capacity to pay the nominated employee the full-time salary stipulated in the employment contract. This involved an assessment of the applicant's financial position and whether it had demonstrated a genuine need for the position as described in the job description.

Justice Emmerton found that the delegate had failed to properly consider all relevant evidence regarding the applicant's financial capacity, including its profit and loss statements and balance sheets. The court held that the delegate's conclusion that the applicant could not afford the full-time salary was not supported by the evidence. Furthermore, the delegate had not adequately considered the applicant's submission that the employment contract was cognisant of workplace relations expectations and that the nominated position represented a genuine need for the business. Consequently, the delegate's decision was found to be affected by jurisdictional error.

The court ordered that the decision under review be set aside.