Ralph, Rowan Jun (Migration)

The Administrative Appeals Tribunal, constituted by Susan Trotter, considered an application for the approval of a nomination of a position. The applicant sought to have a nominated position approved, but the Tribunal was required to determine whether the applicant met the criteria for such approval.

The central legal issue before the Tribunal was whether the nominated position was "genuine" as required by regulation 2.72(10)(f) of the Migration Regulations 1994. This involved assessing the nature of the position against the nominated occupation to ensure it was authentic and not misrepresented. The Tribunal also considered the guidance provided in the Procedures Advice Manual 3 (PAM3) regarding the assessment of genuine positions, while acknowledging that such policy documents are not binding and are subordinate to the legislation.

The Tribunal reasoned that the term "genuine" implies that a position must truly exist and accurately reflect what it purports to be. It noted that while departmental policy, such as PAM3, can offer useful guidance, it does not override the legislative requirements. The Tribunal affirmed the original decision to refuse the nomination, concluding that the applicant had not satisfied the applicable criteria for approval.