G'day Japanese & Korean Restaurant Pty Ltd v Minister for Immigration and Citizenship [2025] FedCFamC2G 954

1. Before the Court is an application seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 31 July 2020. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) made on 18 December 2017 to refuse to approve the first applicant's application for approval of a nomination of an occupation made in connection with an applicant for a Subclass 457 Temporary Work (Skilled) visa (Subclass 457 visa).
2. The Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
3. This application was heard in conjunction with the related matter of Cheong v Minister for Immigration and Citizenship [2025] FedCFamC2G 955.
4. The issue in this case relates to the proper scope of the word 'genuine' as it appears in subreg 2.72(10)(f) in Div 2.17 of Part 2A of the Migration Regulations 1994 (Cth) (Regulations). That provision requires a decision-maker to determine whether 'the position associated with the nominated occupation is genuine'. The applicants contend that word 'genuine', when properly construed, is narrower in scope than that stated by the Tribunal. In particular, they argue that the inquiry as to whether a position is genuine does not necessarily involve a consideration of financial matters which suggest a business seeking nomination approval has artificially met minimum salary requirements for a position in circumstances where staff and management take voluntary or accepted salary sacrifices.
5. For the reasons that follow, the applicants' grounds are not made out and the application does not succeed.

1. The first applicant, G'day Japanese and Korean Restaurant Pty Ltd (first applicant or company), operates a Japanese and Korean food restaurant in Yangebup, Perth. Mr Sang Won Park (Mr Park) is a director and secretary of the company.[1]

1. On 23 February 2017, the company applied for nomination approval under s 140GB of the Act. The nomination related to the occupation of 'Cook' in connection with an application for a Subclass 457 visa.[2] The nominee was the second applicant, Ms Cheong.
2. On 18 December 2017, the delegate refused the nomination application. The delegate found the applicant did not meet the requirements of subreg 2.72(10)(f), as they were not satisfied the position associated with the nominated occupation was genuine.[3]

1. On 26 December 2017, the company applied to the Tribunal for review of the delegate's decision.[4]
2. On 18 March 2020, the Tribunal wrote to the company, via its representative, inviting it to provide updated and current information addressing the relevant criteria in reg 2.72.[5]
3. On 31 March 2020 and 1 April 2020, the company's representative provided a number of documents to the Tribunal, including:[6]

(a) the company's tax returns for the 2018 and 2019 fiscal years;

(b) the company's financial statements for the 2018 and 2019 fiscal years;

(c) business activity statements;

(d) financial statements;

(e) payment slips;

(f) Australian Securities and Investments Commission current and historical company extract;

(g) the company's bank statements for the period 1 October 2019 to 31 December 2019; and

(h) submissions.

1. On 18 June 2020, Mr Park and Ms Cheong attended a joint hearing before the Tribunal that was conducted by telephone. The company's representative also attended and the parties were assisted by an interpreter in the Korean and English languages.[7]
2. On 24 June 2020, the applicants' representative provided further written submissions and the following relevant supporting documents:[8]

(a) an employment agreement between the company and Ms Cheong, made on 1 July 2020; and

(b) the Restaurant Industry Award 2010 pay guide.

1. On 31 July 2020, the Tribunal affirmed the decision under review.
2. The Tribunal identified the issue to be addressed was whether the company met the criteria for approval of the nomination. The Tribunal noted that it must approve the nomination if the company was an approved sponsor and met the requirements of reg 2.72 and s 140GB(2).
3. In considering whether the position was genuine, the Tribunal was satisfied that Mr Park and Ms Cheong were full-time employees of the company, and that their daughter Ms Park was a casual employee of the company. Having qualitatively assessed the position and comparing it with the nominated occupation, the Tribunal was also satisfied the person occupying the position of Cook was required to undertake 'tasks' of the kind set forth in the relevant ANZSCO - Australian and New Zealand Standard Classification of Occupations description.
4. The Tribunal noted that in order to be satisfied that the position is genuine, it must be satisfied the position exists and that it is what it purports to be, citing Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30 (Cargo First FCA judgment). The Tribunal also noted that 'financial measures' can assist in identifying whether a position is genuine.
5. In assessing whether the company was able to financially support the position, the Tribunal considered the financial evidence the applicant had provided to the Tribunal, including the evidence given at hearing by Mr Park in relation to Ms Cheong's annual salary. It accepted the company's income had doubled between the 2015/16 fiscal year and 2018/19 fiscal year and that the company had paid the nominee's wages to date. However, it:

(a) observed there was no evidence that Mr Park or Ms Park were paid any wages. It recorded that when questioned at hearing about his wage, Mr Park told the Tribunal that he reinvests his wage into the business. However, it noted the financial reports provided did not reflect Mr Park reinvesting his wage, and instead found that he was simply not being paid.

(b) found that the company was only in a position to pay the nominee's wages in the financial years of 2017/2018 and 2018/2019 by not paying other employees' wages.

(c) noted that if the company had been paying all of their employees as listed in the organisational charts, the applicant would have been operating at a 'substantial loss'.

1. On that basis, the Tribunal concluded that it was not satisfied that the company had the financial capacity to support the position. Accordingly, the Tribunal was not satisfied that the position associated with the nominated occupation was genuine and affirmed the delegate's decision.

1. By way of an amended application filed on 25 March 2021, the applicant relied on six grounds of review. At the commencement of the hearing, clarification was sought in relation to the nature and scope of the grounds pressed by the applicant. Counsel for the applicants, Mr Young, confirmed that only ground 3 was pressed. However, it became apparent in the course of the hearing that grounds 5 and 6 were also pressed. Furthermore, Mr Young submitted that grounds 1, 2 and 4 had been abandoned.
2. Accordingly, the grounds of review that remain pressed are as follows (reproduced without alteration):

3. The Second Respondent made jurisdictional error by making error of law as to the construction of Reg 2.72(10)(f) of the Migration Regulations 1994 and treating a business which would not have traded profitably other than for the salary sacrifice of the Director (by re-investing it into the business) as being unable to satisfy Reg 2.72(10(f).

5. Further or in the alternative to ground 3 above, the Second Respondent made jurisdictional error by making error of law in relation to the construction of the regulation 2.72(10)(f) of the Migration Regulations 1994 and regarding as decisive the issue of whether the applicant was paying other employees while maintaining profitability.

6. Further or in the alternative to ground 3 above, the Second Respondent asked itself a wrong question in relation to R 2.72(10)(f) of the Migration Regulations 1994 namely whether the Applicant was able to financially support the position associated with nominated occupation.

1. Before addressing the applicants' grounds, it is necessary to examine the legislative text in order to ascertain the meaning of the word 'genuine' in subreg 2.72(10)(f).
2. Much has been written and said about approaches to be taken when interpreting legislation. That need not be reproduced here beyond reiterating that the text of a legislative provision is to be considered in context, including the Act as a whole, linguistic canons of construction, the purpose of the provision and extrinsic material.[9] In cases, such as this, where a dispute arises in relation to the application of a provision, it is necessary to establish the intention of the legislature to ascertain the way in which the legislation is to be properly applied to a particular set of facts.[10]
3. In SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34; 91 ALJR 936 at [14], Kiefel CJ, Nettle and Gordon JJ made the following remarks in relation to the interpretation of a statutory provision:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, it its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

1. The starting point in any statutory interpretation exercise must involve some consideration of the legislative text. In this case, the word 'genuine' in subreg 2.72(10)(f) is not defined in the Act or Regulations. Any meaning attributed to it must be reasonably open on the natural and ordinary meaning of the word read in the context in which it appears.
2. Regulation 2.72 specifies the criteria for approval of a nomination, including subreg 2.72(10) which provides a series of requirements that a standard business sponsor must meet in order for their nomination to be approved for the purpose of enabling them to employ a non-citizen to work in a position in their business in Australia. Briefly, the requirements in subreg 2.72(10) include:

(a) the requirement for the work to be undertaken in an occupation classification specified by the Minister (subreg 2.72(10)(a) - (b));

(b) the requirement for the nominee to be employed on terms no less favourable than those available to an Australian performing equivalent work in the same location (subreg 2.72(10)(c));

(c) the requirement for the nominee to receive a base rate of pay above a minimum income threshold prescribed by the Minister (subreg 2.72(10)(cc));

(d) the requirement for the business to provide a written certification in which they attest to various matters (reg 2.72(10)(e)) including:

(i) that the tasks of the position include a significant majority of the tasks of an occupation approved for use by the Minister;

(ii) that, where the applicant lawfully operates a business in Australia, the nominated occupation is a position with a business, or an associated entity, of the standard business sponsor;

(iii) that the nominee possesses qualifications and experience commensurate with those specified within the relevant occupational classification;

(e) the requirement for the position associated with the nominated occupation to be genuine (reg 2.72(10)(f));

(f) the requirement for the nominee to hold a license, registration or membership if required to perform the nominated occupation, as well as meet minimum English language proficiency requirements unless certain prescribed exemptions apply (reg 2.72(10)(g));

(g) the requirement for the nominee to be employed pursuant to a written contract of employment, a copy of which is to be provided to Minister, unless the position corresponds to certain managerial or medical occupational classifications specified by the Minister (reg 2.72(10)(h)).

1. The requirement prescribed by subreg 2.72(10)(f) was introduced on 1 July 2013 by way of the commencement of Migration Legislation Amendment Regulation 2013 (No. 3) (Cth) (enabling Regulations).[11] A rationale for the introduction of that particular requirement is detailed in Item 3 of the Explanatory Statement to the enabling Regulations:

Under previous provisions of the Migration Regulations 1994 (the Regulations), employers are required to certify that the tasks of the nominated position correspond to the tasks of an occupation eligible under the Subclass 457 visa program. However, there is no ability for a delegate to consider the veracity of the certification provided.

The Legislative Instrument amends paragraph 2.72(10)(f) by introducing a criterion which requires that the nominated occupation is genuine.

In most cases, case officers may consider this requirement met on the basis that the sponsor has certified in writing as part of the nomination that the tasks of the nominated position correspond to the tasks of an occupation eligible under the Subclass 457 visa program as specified at subparagraphs 2.72(10)(d)(i) or (e)(i) of the Regulations. In cases where the case officer has any doubt as to the veracity of the certifications, further assessment should be undertaken.

Further consideration should be given to the veracity of the certification if it appears that:

• the occupation is being presented as an occupation that is eligible for the program, when it is in fact not. For example, information provided about the occupation indicates that it is a Bar Manager, an occupation which is not eligible for the program, however, the employer has nominated the person as a Restaurant or Café Manager, which is eligible for the program; or
• the salary level appears inconsistent with other workers in the occupation (for example, if the nominated salary is significantly lower than industry standards for the nominated occupation);
• or the position does not appear to fit broadly within the scope of the activities and scale of the business.

1. The statutory obligation to approve a nomination arises within the Act itself. Subsection 140GB(2) of the Act provides the Minister must approve a nomination if, among other things, the prescribed criteria in reg 2.72 are satisfied. This particular section of the Act falls within Division 3A of Part 2 of the Act, whereby s 140AA relevantly prescribed the purposes of the Division 3A in the following terms:

The purposes of this Division are as follows:

(a) to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages;

(b) to address genuine skills shortages in the Australian labour market:

(i) without displacing employment and training opportunities for Australian citizens and Australian permanent residents (within the meaning of the regulations); and

(ii) without the temporary sponsored work visa program serving as a mainstay of the skilled migration program;

(c) to balance the objective of ensuring employment and training opportunities for Australian citizens and Australian permanent residents with that of upholding the rights of non-citizens sponsored to work in Australia under the program;

(d) to impose obligations on sponsors to ensure that:

(i) non-citizens sponsored to work in Australia under the program are protected; and

(ii) the program is not used inappropriately;

(e) to enable monitoring, detection, deterrence and enforcement in relation to any inappropriate use of the program;

(f) to give Fair Work Inspectors (including the Fair Work Ombudsman) and inspectors appointed under this Division the necessary powers and functions to investigate compliance with the program.

1. Item 1 of Schedule 1 to the Explanatory Memorandum of the Migration Amendment (Temporary Sponsored Visas) Act 2013 (Cth), which introduced s 140AA to the Act, details the purpose of that new section and its non-restrictive application in the following terms:

16. The purpose of this amendment is to reinforce the purpose of Division 3A of Part 2 of the Act relating to sponsorship. New section 140AA of the Act sets out broad principles to reinforce the importance of temporary skilled workers to the Australian economy while protecting Australian businesses and the employment and training of Australian citizens and Australian permanent residents.

17. However, new section 140AA of the Act is not intended to impact on the way Division 3A is interpreted or administered, nor to limit or restrict any future interpretation of the provisions in the Division.

1. Judicial consideration of the word 'genuine' in subreg 2.72(10)(f) was undertaken in this Court by Judge Smith in Cargo First Pty Ltd v Minister for Immigration and Border Protection (2015) 298 FLR 138; [2015] FCCA 2091, at [19]-[31] (Cargo First FCC judgment). In that case, the Court was required to review a Tribunal decision where the Tribunal was not satisfied that the Sales and Marketing Manager position associated with a nominated occupation was genuine. At [14], his Honour made reference to the Tribunal's critical findings at paragraph 32 of its decision:

For the reasons set out above, the Tribunal finds the duties of the nominated position has been and will be the manager of a Muffin Break franchise, as set out in the employment contract. It finds those duties include some elements of sales and marketing. Given the nature and size of the applicant's business as a franchisee of a Muffin Break and given to the wide range of duties of the nominated position which are not consistent (with) the duties of a sales and marketing manager, the Tribunal is not satisfied the position associated with the nominated occupation is genuine.

1. Having identified those critical findings, his Honour then went on to provide a helpful and thorough explanation of his construction of the word 'genuine' in subreg 2.72(10)(f) at [19] - [31]:

[19] In order to understand whether the Tribunal properly understood and applied the Regulations, it is first necessary to consider the meaning of the regulation in question. In doing so, it is important to bear in mind the basic principles concerning statutory construction. Those principles have been summarised many times by the Courts and are encapsulated in the following passage from the judgement of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 46-47 [47]:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

[20] The specific text in question is "the position associated with the nominated occupation is genuine". It may be noted that this is also a criterion for the grant of the subclass 457 visa for which Mr Zhao applied (sub-cl.457.223(4)(d)(ii)).

[21] The word "genuine" is an ordinary English word meaning real or authentic. Thus, at first blush, the question is whether the position is real or authentic. However, the word "position" is qualified by the phrase "associated with the nominated occupation". That qualification is not immediately comprehensible without reference to the context in which it is found. As will be seen, the focus of the statutory provisions relating to the grant of and sponsorship of applications for work visas is on classes of occupations in the first instance rather than on any specific position.

[22] The statutory provisions relating to sponsorship appear in div.3A of the Act. That division was introduced by the Migration Legislation Amendment (Sponsorship Measures) Act 2003 (Cth). The explanatory memorandum circulated by the Minister in relation to that Act noted that sponsorship was an important and integral element in providing for the entry of persons into Australia and that it has a vital role to play in protecting the Australian community from the costs and risks associated with the stay of non-citizens in Australia.

[23] Section 140AA of the Act (introduced together with s.140GB by the Migration Amendment (Temporary Sponsored Visas) Act 2003 (Cth)) provides that one of the purposes of div.3A is to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages and to do so without displacing employment and training opportunities for Australian citizens and Australian permanent residents.

[24] Consistently with that purpose, sub-reg.2.72(10)(f) was added (by Migration Legislation Amendment Regulation 2013 (No. 3)) in order to strengthen the integrity of the sponsorship program and subclass 457 visas particularly by the introduction of a "genuineness test" to be conducted by departmental officers to ensure that the position associated with the nominated occupation is genuinely required to address skills shortages in Australia: Explanatory Statement in respect of Select Legislative Instrument 2013 No. 146 issued by the Minister for Immigration and Citizenship.

[25] Section 140GB is also within div.3A of the Act and is set out above. It can be seen that that provision allows an approved sponsor to nominate an applicant in relation to, amongst other things, a "proposed occupation". Thus, at the outset, as I have already mentioned, the focus of the sponsorship provisions is upon an occupation. This is reinforced by the criteria for the approval of the nomination which are contained in reg.2.72. For example, sub-reg.2.72(5) requires the Minister to be satisfied that the relevant visa applicant "who will work in the nominated occupation" is identified in the nomination. Similarly, sub-reg.2.72(6) requires the Minister to be satisfied in certain circumstances that the worker demonstrates that he or she has the skills necessary to perform the occupation.

[26] The importance of the identification of the occupation nominated by the applicant is highlighted by sub-regs.2.72(8A) and 2.72(10)(aa). The first of these, as noted above, requires the Minister to be satisfied that there is a six digit ANZSCO code for the nominated occupation and the name of the occupation to be included as part of the nomination. The second of these requires the nominated occupation and its corresponding six digit code to correspond to an occupation and its corresponding six digit code specified by the Minister in an instrument in writing for the purposes of the paragraph.

[27] These requirements are evidently aimed at giving the Minister the ability to determine which occupations are those in which there is a genuine skills shortage as referred to in s.140AA of the Act. The Minister has made instruments for the purposes of this regulation specifying occupations and other matters and giving the relevant ANZSCO code in respect of each occupation: see IMMI 13/066 (which applied at the time of the application for nomination) and its replacement IMMI 14/048.

[28] The effect of these last two sub-regulations is critical to the understanding of the issues in these proceedings. They reveal that the nomination of an occupation will not be successful unless that occupation is specified by the Minister in an instrument in writing. To explain this by way of example, in IMMI 14/048, the occupation of sales and marketing manager (code 131112) is specified whereas a càfe or restaurant manager in a fast food or takeaway food service is specifically excluded. Thus, if the occupation nominated by the sponsor was in the latter classification the nomination could not be approved.

[29] Another matter to note is that a number of the criteria in reg.2.72 are that the Minister be satisfied that certain information and certifications have been included in an application for approval. For example, sub-reg.2.72(10)(e)(i) requires the Minister to be satisfied that the applicant has certified as part of the nomination in writing that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO. By contrast, sub-reg.2.72(10)(f) requires the Minister to be satisfied that the relevant position is genuine. On its face, that criterion requires some analysis of the material before the decision-maker rather than simply the neutral observation of whether or not something is included a form.

[30] With those matters in mind, and in particular, the purpose of div.3A of the Act, what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister's decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. To the extent that the applicant's arguments suggested otherwise, they are rejected.

[31] The critical reasoning of the Tribunal was that given "the nature and size of the applicant's business as a franchisee of a Muffin Break and given to the wide range of duties of the nominated position which are not consistent with the duties of a sales and marketing manager" the position associated with the nominated occupation was not genuine: [32] of the Tribunal's reasons. This reasoning reveals the type of qualitative analysis required by, sub-reg.2.72(10)(f).

1. Judge Smith's analysis met with approval in the Cargo First FCA judgment where Justice Flick at [20] confirmed that subreg 2.72(10)(f) enables the Minister to reach his own state of satisfaction in respect of the matters certified by the nominating business in accordance with subreg 2.72(10)(e). At [23]-[25], Flick J listed numerous factors which support the rationale for construing the word 'genuine' broadly, so as to enable a decision-maker to examine assertions about the position made by a nominating business as part of the nomination application, and made reference to other cases that lent support to that conclusion:

[23] Those factors which dictate the reservation to the Minister of the ability to "go behind" the assertions made by a sponsor and the reservation of an ability to reach a factual conclusion as to whether "a position associated with the nominated occupation is genuine" include:

• the fact that reg 2.72(10) entrusts to the Minister the responsibility of being "satisfied" of the matters thereafter set forth, a responsibility which would be significantly circumscribed if the need for the Minister to reach a state of satisfaction as to whether a position is "genuine" is itself determined by mere reference to a "certification" provided in accordance with reg 2.72(10)(e);

• the fact that reg 2.72(10) requires the Minister to be separately satisfied that both reg 2.72(10)(e) and (f) have been satisfied, each of the matters separately set forth in reg 2.72(10) being expressed as conjunctive (and not disjunctive) matters each requiring the satisfaction of the Minister;

• the very use of the term "genuine" in reg 2.72(10)(f), namely a word which of itself invites factual inquiry as to whether the "position" is "real or true" (The New Shorter Oxford English Dictionary (1993 ed.));

• the object and purpose sought to be achieved by the legislative regime and the potential for that object and purpose to be frustrated if a sponsor could unilaterally seek to circumvent the constraints imposed by nominating only some occupations and not others by misrepresenting the duties to be performed by the visa applicant; and

• a presumed legislative intention not to compel the Minister to approve a nomination, namely the requirement that the Minister "must approve" a nomination (s 140GB(2)), by reference to factual assertions beyond his power to scrutinise. It would be an odd construction of s 140GB(2) to force upon the Minister a duty that he "must approve" a nomination by reference to a state of "satisfaction" dictated by uncontestable factual assertions made by a sponsor.

Counsel for the Respondent Minister was correct in his submission that any contrary construction would impermissibly "conflate" reg 2.72(10)(e) and (f).

[24] This conclusion, it may be noted, is consistent with other instances where there has been a factual inquiry as to whether a person in fact discharges the functions of a nominated occupation: e.g., Minister for Immigration and Citizenship v Kamruzzaman [2009] FCA 1562, (2009) 112 ALD 550.

[25] The like conclusion of the Federal Circuit Court Judge the subject of the present appeal was expressed as follows:

[30] ... what is required by sub-reg.2.72(10)(f) is a determination of not only whether or not the position in question is genuine in that it exists but also whether it really is what it purports to be. The second part of the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor. If it were otherwise, the scheme envisaged for the protection of the Australian workforce could be readily undermined simply by describing one thing as being another. In light of this, the task of the Minister (and of the Tribunal on review of the Minister's decision) is not simply to determine whether the duties relevant to the position include the majority of those referred to in the ANZSCO in respect of the nominated occupation. To the extent that the applicant's arguments suggested otherwise, they are rejected.

1. It is clear from the grounds which are pressed that the applicants contend the Tribunal erred:

(a) when construing subreg 2.72(10)(f) such that it would operate so as to exclude 'a business which would not have traded profitably other than for the salary sacrifice of the Director (by re-investing it into the business)';

(b) when construing subreg 2.72(10)(f) by 'regarding as decisive the issue of whether the applicant was paying other employees while maintaining profitability';

(c) in asking itself a wrong question in relation to subreg 2.72(10)(f), namely whether the first applicant was able to financially support the position associated with nominated occupation.

1. At hearing, Mr Young submitted the Tribunal misconstrued subreg 2.72(10)(f) and thereby applied the wrong test when considering whether the position associated with the nominated occupation was genuine. He argued the Tribunal went beyond the statutory test by imposing a requirement that involved the consideration of the financial circumstances of the company as part of understanding whether the position 'exists' or 'is what it purports to be'. In that sense, he contended the Tribunal had gone beyond the formulation or construction of reg 2.72(10)(f) that had been proffered by Flick J in the Cargo First FCA judgment.
2. When specifically referring the Tribunal's reasons to identify the particular error, Mr Young argued that the approach taken by the Tribunal when construing and applying subreg 2.72(10)(f) was 'too broad', as evinced by its statements in paragraph 26 of its decision:

Financial measures can also assist in identifying whether a position is genuine. For example, if an applicant was artificially meeting the salary of the nominated position by not paying other staff, this could indicate that the position was created to achieve a migration outcome rather than to address a genuine labour shortage.

1. The Minister, in response, submits it was open to the Tribunal to consider the financial circumstances of the company as part of its consideration of whether the position 'exists' and 'is what it purports to be'. The Minister's representative, Mr Wong, argued at hearing that I should reject the applicants' narrow construction of subreg 2.72(10)(f). In so doing, Mr Wong drew my attention to two particular cases.
2. First, my attention was drawn to Justice Perram's judgment in Song v Minister for Home Affairs [2019] FCA 970 (Song) where his Honour found that it was not legally unreasonable for the Tribunal in that case to have considered the financial circumstances of a relatively small company - such as its sales, gross profits, expenses and after tax profit - to determine whether it had the economic capacity to engage the proposed nominee in the position associated with the nominated occupation. While Mr Wong acknowledged the facts in Song were not 'on all fours' with the facts in the present matter, he nevertheless suggested that a company's financials were a 'highly relevant consideration' when determining whether, for the purposes of reg 2.72(10)(f), a position is what it purports to be.
3. Secondly, Mr Wong took me to Justice Logan's judgment in Juliana Kanu t/a Momoa Interior Home Services v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1972 (Kanu) where his Honour reasoned at [23]-[25] that a Tribunal did not err when it determined that it was not satisfied a Customer Service Manager position existed or was what it purported be where the company was unable to fund the position:

[23] In this particular case, when one reads in context, as one must, [30], the Tribunal was just not satisfied that the Customer Service Manager position as described in the application was:

[24] The reason for that, as is truly pellucid if one reads the reasons as a whole, is that the Tribunal was just not satisfied that, when one looked at the gross receipts of the business and also at the projected gross receipts, that there was any ability at all to fund the position as promoted. The Tribunal expressed a very particular reservation as to Ms Kanu's honesty. That reservation was one reasonably open. There is an obvious disjunct between the gross receipts as disclosed and other evidence as to employees who were being paid in cash. There is no expenditure side which discloses such payments. Necessarily, there must have been cash coming in and out outside the books, as it were. This is what the Tribunal, in [30], in as kind a way as possible, is describing.

[25] That, in turn, plainly left the Tribunal in a position where it was not satisfied that the Customer Service Manager position existed or was what it purported to be - a position which was there to be filled as the business prospered....

1. Given the approach taken in Kanu, Mr Wong submitted that it was entirely appropriate for the Tribunal to consider a company's financials, as it did in the present case, to determine whether the position exists or is what it purports to be. It was further submitted that it was open for the Tribunal to find that the position associated with nominated occupation was not genuine where it had been created to achieve a migration outcome rather than to address a genuine labour shortage.

Proper scope of the term 'genuine' in subreg 2.72(10)(f)

1. The purposes of Division 3A of the Act are to be borne in mind when construing statutory provisions that operate pursuant to that Division, including the word 'genuine' in subreg 2.72(10)(f). Taking into account the context and purpose of the legislative scheme, and the extrinsic aids to interpretation outlined above, it is my view that the term 'genuine' in subreg 2.72(10)(f) is to be construed in a manner that aligns with any one or more of the stated purposes of Division 3A of the Act.
2. It is clear from the Cargo First FCC judgment and the Cargo First FCA judgment that any assessment of the genuineness of a position may be validly made where doubts exists as to the veracity of a nominator's certifications made pursuant to subreg 2.72(10)(e).
3. While it is not necessary for me to determine this particular issue in this case, it is my view that scope of the term 'genuine' in subreg 2.72(10)(f) is not necessarily restricted to a formulation where a decision-maker can only be satisfied that a position is genuine where it finds that it 'exists' or 'is really what it purports to be'. Such a formulation, as was contended by the parties in this case, is not the only one that may be supported by the legislation. I accept that Judge Smith adopted that bifurcated approach in assessing the genuineness of a position in the Cargo First FCC judgment, but am of the view that his Honour did so on the basis that the Tribunal's focus in that case was whether, taking into account the nature and size of the company's business, there was a genuine need for the company to fill a position of the type being nominated. The formulation his Honour proposed did not foreclose any other construction of the word 'genuine' in subreg 2.72(10)(f). That much was made clear by Justice Flick in the Cargo First FCA judgment where his Honour left open the question of whether or not subreg 2.72(10)(f):

has a wider ambit of operation and preserves an ability to "go behind" other aspects of a nomination that determine whether the position associated with a nominated occupation is "genuine".

1. That said, having read the Tribunal's reasons as a whole, the Tribunal's approach in this case is illustrative of it having sought to 'go behind' the company's certification made on page 6 of the nomination application form that, pursuant to subreg 2.72(10)(e)(iii)(A), the nominated occupation of Cook is a position with a business of the company.[12] In assessing the veracity of that certification for the purpose of determining whether the position associated with nominated occupation was genuine, it was open for the Tribunal to examine the financial circumstances of the company and assess whether the company had the financial capacity to support the position in the future. Apart from the fact the inquiry was similar to that which met with approval by the Court in Kanu, the making of that inquiry was entirely appropriate in the circumstances of this particular case.
2. First, the inquiry bore upon the company's capacity to fund the position for the four year term of the nominee's proposed employment in Australia as the holder of a temporary sponsored work visa.[13] I am of the view that such a forward-looking inquiry is appropriate as the statutory scheme is designed to facilitate access to the temporary work sponsored visa program in circumstances where businesses can demonstrate capacity to meet their obligations towards the nominee, including salary obligations.
3. Secondly, the inquiry assisted the Tribunal in determining whether the position would properly 'exist' in the business such that it did not give rise to a situation whereby the company would conduct itself in a manner contrary to any of the purposes of the program enshrined in s 140AA of the Act.
4. At paragraphs 36-39 of its decision, the Tribunal found the company had only been able to show that it had properly paid the nominee over a previous two and half year period by not paying all of its other employees. It also found that had the company made such payments to all employees it would have operated at a substantial loss. Those findings were open to it on the evidence, particularly given the Tribunal's anterior finding at paragraph 30 of its decision that there was a distinct absence of any financial documentation which supported Mr Park's oral statement at hearing that he reinvested his wage into the business.
5. In those circumstances, it was entirely appropriate for the Tribunal to be concerned about the veracity of company's certification that there was a position of Cook in the business of the company where it was not satisfied that the company could 'afford to pay the nominee while at the same time meeting obligations to its other employees'.[14] That concern was legitimate and the resultant finding that the position associated with nominated occupation was not genuine was made within the ambit of the legislation as it evinced a clear appreciation of whether the position could only 'exist' in the business because the company would need to conduct itself in a manner contrary to a purpose of the program enshrined in s 140AA of the Act. Relevantly, those stated purposes include the need for not displacing the employment of Australian citizens and permanent residents. In my view, such displacement includes the termination, underemployment, underpayment or non-payment of Australians working in the business.
6. Given the foregoing analysis, the applicants' three grounds do not disclose any error on the Tribunal's part and jurisdictional error has not been established.

1. Therefore, for the above reasons, the application before this Court is dismissed.
2. I heard the parties in relation to costs and note that the Minister sought costs to be paid by the applicant fixed in the sum of $8,371.30. The applicants submitted, in the event the application was unsuccessful, costs in this amount would not be opposed. I find that costs should follow the event and that this amount is reasonable in the circumstances given the work undertaken by the Minister in this case including, but not limited to, preparation of the Court Book, drafting of written submissions, affidavit material as well as preparation for and appearance at the hearing. I will so order that the Minister's costs be paid by the applicant fixed in the sum of $8,371.30.
3. Finally, as a consequence of:

(a) the change in name of the Minister's portfolio, the name of the first respondent is to be amended to 'Minister for Immigration and Citizenship'; and

(b) the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to 'Administrative Review Tribunal'.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[9] Herzfeld P and Prince T Statutory Interpretation Principles (2nd ed, Thomson Reuters, 2021) p 14.

[10] Pearce D C, Statutory Interpretation in Australia (10th ed, Lexis Nexis, 2024) p 8.

[11] Reg 2, Migration Legislation Amendment Regulation 2013 (No. 3) (Cth).