G'day Japanese & Korean Restaurant Pty Ltd (Migration)

The Administrative Appeals Tribunal affirmed a delegate's decision to refuse to approve a nomination for a position under the *Migration Regulations 1994* (Cth). The applicant, G'day Japanese & Korean Restaurant Pty Ltd, sought to nominate a position, but the delegate found that the position was not genuine and that the company lacked the financial capacity to support the nominated position. The applicant sought judicial review of the Tribunal's decision.

The primary legal issues before the Federal Court were whether the Tribunal erred in finding that the nominated position was not genuine and whether it erred in finding that the company did not have the financial capacity to meet its obligations in relation to the nominated position. Specifically, the Court considered whether the Tribunal's assessment of the company's financial capacity was affected by its finding that wages were paid to the nominee (who was the director's wife) but not to the director and daughter who also worked part-time casually for the company.

The Court reasoned that for a position to be genuine, it must be a real, ongoing position that the employer genuinely needs to fill. The Tribunal was entitled to consider the company's financial records and the actual employment arrangements. The fact that wages were paid to the nominee, but not to other family members working in the business, was a relevant factor in assessing both the genuineness of the position and the company's financial capacity. The Tribunal's conclusion that the position was not genuine and that the company lacked the financial capacity was open to it on the evidence before it.

The application for judicial review was dismissed.