GUANACO PTY LTD (Migration)

This matter concerned an appeal by Guanaco Pty Ltd against a decision to refuse its standard business nomination. The core dispute revolved around whether the nominated position of Contract Administrator was genuine, as required by regulation 2.72(10)(f) of the Migration Regulations 1994. The Tribunal was required to determine if the evidence presented sufficiently demonstrated that the nominated position was authentic and accurately represented its purported role, particularly in the context of a sponsoring business of a relatively modest size where such an occupation might typically be associated with larger organisations.

The Tribunal considered the definition of "genuine" as meaning "being truly such; real; authentic; properly so called; sincere; free from pretence or affectation." It also referred to the Department of Home Affairs' policy guidance in Procedures Advice Manual 3 (PAM3), which states that a genuine position must exist and be what it purports to be, and is intended to prevent semi-skilled positions from being misrepresented as more skilled. While acknowledging that PAM3 is not binding, the Tribunal found it a useful starting point. The Tribunal noted that the evidence before it was limited and did not sufficiently establish that the nominated position of Contract Administrator was genuine in the context of Guanaco Pty Ltd's operations.

Ultimately, the Tribunal affirmed the decision not to approve the nomination. It found that Guanaco Pty Ltd had not met the applicable criteria for the nomination to be approved, specifically concerning the genuineness of the nominated position.