Clear Pathway Pty Ltd (Migration)

This matter concerned an application by Clear Pathway Pty Ltd for approval of a nominated position under the Direct Entry stream of the Employer Nomination scheme. The dispute arose when the decision to approve the nomination was reviewed by the Tribunal.

The legal issues before the Tribunal were whether the applicant, Clear Pathway Pty Ltd, met all the requirements for approval of the nomination as set out in regulation 5.19(4) of the Migration Regulations 1994. Specifically, the Tribunal considered whether the application was compliant, if the nominator was actively and lawfully operating a business in Australia, if the position was not labour hire, the terms of employment, whether the terms and conditions were no less favourable than for an Australian worker, if there was no adverse information known to Immigration, and if the applicant had a satisfactory record of compliance with workplace relations laws. The Tribunal also had to determine if the nominated position met the requirements relating to its tasks, a genuine need for the position, and any training requirements, particularly in the context of regional Australia.

The Tribunal reasoned that Clear Pathway Pty Ltd had met all the relevant requirements of regulation 5.19(4). It found that the application was made in the approved form and accompanied by the prescribed fee, and that the nominator was actively and lawfully operating a business in Australia. The Tribunal also determined that the position was not labour hire, that the terms of employment met the minimum duration and did not exclude an extension, and that the terms and conditions offered were no less favourable than those for an Australian worker. Furthermore, the Tribunal was satisfied that there was no adverse information known to the Department and that the applicant had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal found that the position and business were located in regional Australia, there was a genuine need for the position which could not be filled locally, the tasks corresponded to a specified occupation, and a Regional Certifying Body had provided the necessary advice.

Accordingly, the Tribunal decided to set aside the original decision and substitute it with a decision approving the nomination.