C Clerc & T.C Clerc (Migration)

This matter concerned an application for approval of a nominated position under the Direct Entry nomination stream of the Migration Regulations 1994. The applicants, C Clerc and T.C Clerc, operated a French restaurant, tearoom, gift shop, garden centre, miniature village, and bed and breakfast accommodation. The dispute arose from the Department's refusal to approve the nomination of an office manager position, a decision which the applicants sought to have reviewed by the Tribunal.

The Tribunal was required to determine whether the nominated position of office manager met the requirements of regulation 5.19(4) of the Migration Regulations 1994. Specifically, the court needed to assess if the tasks of the proposed office manager corresponded to an occupation specified by the Minister, and if the occupation was applicable to the proposed employee in accordance with relevant legislative instruments. The court also considered the alternative requirements for nominations located in regional Australia, including the genuine need for the position and whether it could be filled by a local resident.

The Tribunal affirmed the decision to refuse the nomination. While acknowledging the complexity of the applicants' business operations, the Tribunal found that the primary activity was the French restaurant, for which a restaurant manager had already been appointed. The Tribunal reasoned that this existing role would likely encompass many of the responsibilities attributed to the proposed office manager, particularly those directly related to the restaurant's operations. Furthermore, the Tribunal noted a lack of evidence regarding the frequency and complexity of meetings, suggesting that such interactions might be informal and not as substantial as represented by the applicant. The Tribunal concluded that the evidence did not sufficiently demonstrate that the nominated position met the regulatory requirements for approval.