Clear Pathway Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a nomination application made by Clear Pathway Pty Ltd for a position as a Café or Restaurant Manager under the Direct Entry stream. The dispute concerned whether Clear Pathway Pty Ltd met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of its nomination.

The Tribunal was required to determine if the nominator, Clear Pathway Pty Ltd, had a genuine need to employ a paid employee for the nominated position, if the business was actively and lawfully operating in Australia, and if the position was located in regional Australia. Further issues included whether the business had the financial capacity to employ the nominee for at least two years full-time, and if there was a genuine need for the position that could not be filled by a local Australian citizen or permanent resident.

The Tribunal found that the application was compliant with the formal requirements, including being in the approved form and accompanied by the prescribed fee. It was satisfied that Clear Pathway Pty Ltd, operating "The Raw Prawn" restaurant in Cairns, was actively and lawfully operating a business in Australia since 2005. The Tribunal also determined that the position was not a labour-hire arrangement and that the business had a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal accepted that the business, located in regional Australia (Cairns), had a genuine need for a Café or Restaurant Manager, as evidenced by the director's statement regarding his limited role in daily operations and the business's attempts to recruit locally. The Cairns Chamber of Commerce had also provided the necessary certification.

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