TRENDVIL PTY LTD ATF JAMES D HARWOOD TRUST (Migration)

The Administrative Appeals Tribunal considered an application by TRENDVIL PTY LTD ATF JAMES D HARWOOD TRUST (the applicant) concerning the refusal of a nomination for a visa. The dispute centred on whether the applicant met the requirements for approval of a nomination under the Direct Entry nomination stream, specifically concerning the genuine need for a paid employee in the nominated position of Corporate General Manager.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the criteria set out in subregulation 5.19(4) of the Migration Regulations. This involved assessing whether the application was compliant, including the identification of a genuine vacancy and the establishment of an employer-employee relationship between the nominator and the nominee, Ms Ying Xie. The Tribunal also considered the relevance of departmental policy, specifically PAM3, in its assessment.

The Tribunal reasoned that while the application form was correctly lodged and the prescribed fee paid, the core of the assessment lay in establishing a genuine need for a paid employee. This requires demonstrating a genuine vacancy and an employer-employee relationship. The Tribunal noted that while PAM3 provides guidance, it is not binding and cannot override the legislation. Judicial authority confirms that policy guidelines are administrative aids and cannot impose requirements beyond those stipulated in the Act and Regulations. In this instance, the Tribunal found that the applicant had not sufficiently demonstrated the genuine need for the nominated position.

Consequently, the Tribunal affirmed the decision under review to refuse the approval of the nomination.