C Clerc & T.C Clerc (Migration)

This matter concerned an application for approval of a nomination under the Direct Entry nomination stream, brought by C Clerc and T.C Clerc (the applicants) as the nominators, and relating to the nominated position of Accommodation and Hospitality Manager. The decision under review was made by the Tribunal, presided over by Member Ian Berry.

The primary legal issue before the Tribunal was whether the applicants met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, if the position was not labour-hire, and if the terms of employment met the specified duration and extension possibilities.

The Tribunal found that the applicants satisfied all the relevant requirements of regulation 5.19(4). Specifically, the application was in the approved form, identified a genuine need for the nominated employee, and the nominator, a partnership operating a café and accommodation business in regional Queensland since 2003, was actively and lawfully operating. The Tribunal also determined that the position was not labour-hire, the employment contract provided for a term of at least two years with no express exclusion of extension, and the terms and conditions were no less favourable than those for an Australian citizen or permanent resident.

Consequently, the Tribunal set aside the decision under review and substituted a decision approving the nomination.