Datix Pty Ltd (Migration) - [2025] ARTA 566

Datix Pty Ltd (Migration) [2025] ARTA 566 (25 March 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Datix Pty Ltd
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2319153

Tribunal:General Member A McMurran
Place:Sydney
Date: 25 March 2025
Decision:The Tribunal remits the decision under review for further consideration with the direction that the applicant meets sub-regulations 5.19(9)(e), (f), and (g) of the Regulations.

Statement made on 25 March 2025 at 11:29am

CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Developer Programmer – multiple financial documents submitted – applicant does have the financial capacity to employ the nominee for at least 2 years – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application lodged 24 November 2023 with the Administrative Appeals Tribunal (“the AAT”) for review of a decision made by a delegate of the Minister for Home Affairs on 10 November 2023 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
On 14 October 2024, the AAT became the Administrative Review Tribunal (“the Tribunal”). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal.
Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The application
The applicant, Datix Pty Limited t/as Quickclaim, applied for approval on 11 February 2023.
The applicant was registered on 12 November 2014 by the regulator, ASIC, and continues currently as a corporate trading entity in Australia. Its website[1] describes the business as a “Fin Tech solution company for the disability, aged and health care sectors.” It provides financial services and related software solutions for “leading NDIS providers and plan Managers” and is one of 8 licenced operators in the sector.
[1] >
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream, and a Labour Agreement stream.
If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If a requirement is not met, then it is not necessary to consider remaining requirements and the application must be refused: reg 5.19(3)(b).
The nomination
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry stream for approval of a nominated Subclass 186 permanent visa (“the visa”).
The nominee, Mr Amin Farzin, (“the nominee”), is a 37-year-old citizen of the Islamic Republic of Iran. He has been nominated in the application for the role of Developer Programmer, ANZSCO 261312.
Decision under review
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(9)(g) of the Regulations. The delegate was not satisfied on the available information that the applicant had the capacity to employ the nominee for at least 2 years, and to pay the nominee at least the annual market salary rate (“AMSR”) for the occupation each year.
The information relied upon at the time were financial documents submitted by the applicant and which included on 2 November 2023 detailed submissions to the Department following a Department request, with information and documents for consideration as to why it met the requirement to pay the nominee for each of two years, as required by the sub-regulation.
The delegate considered the applicant’s information but found that its record of relying upon considerable carried forward tax losses over several years demonstrated that it had not improved its profitability, and therefore any capacity to be able to pay the nominee the AMSR, as was required, did not exist.
The delegate made no finding that the proposed salary rate for the nominee ($160,000 per annum) was not appropriate in accordance with the AMSR but focussed primarily upon the submitted tax information with the application, which included the applicant’s then current Financial statements (Balance Sheets, Profit & Loss, tax return, and BAS lodgements).
The decision highlighted the particular carried forward losses for the previous 5 years and which for FYE 2023 registered a loss before taxation and “loss in value” of $1,065,727. The delegate found this was a considerable increase over the previous financial year’s recorded loss.
The delegate noted that the submitted information did not disclose that the applicant’s projected income had in fact eventuated. The delegate found the weight of evidence “from the tax returns and annual report/s” was sufficient to “show the overall performance of the company for the whole year/s”, did not support a finding that the nominee had sufficient capacity to pay the nominee the required AMSR for the requisite period.
Tribunal process
The applicant was at all times represented in relation to this review.
On 31 January 2025, following constitution of this review to a Member for a decision, the Tribunal served the applicant with a Direction Notice under s 79 of the Administrative Review TribunalAct (the ART Act). The Notice required the applicant to update the Tribunal and invited submissions.
The applicant responded on Friday,14 February 2025, with further detailed submissions and multiple documents, covering the applicant’s updated circumstances in support of the nominee’s appointment. The applicant’s representative included a detailed written submission.
The Tribunal has considered all the available information.
No hearing
Subsection 106(3) of the ART Act provides that if it appears to the Tribunal that issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding, and where the decision is wholly in favour of the applicant, it may reach its decision on review, without a hearing.
In this matter, the Tribunal has considered the available information from the Department file and the ART file, the Act and the Regulations, and the applicant’s multiple submissions and responses to the Direction Notice.
The Tribunal finds it is satisfied on that available information that it can adequately determine the matter on review favourably for the applicant, and without a hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and remit the matter for reconsideration with the direction that reg 5.19(9)(g) is met.
The applicant was at all times represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(9), which are extracted in the attachment to this decision.
For the nomination to be approved, all the requirements must be met. In this review, the Tribunal considers only the sub-regulation pursuant to which the application was refused. The remaining criteria are matters for the Department upon remittal.
Future employment – regs 5.19(9)(e), (f) and (g)
Regulations 5.19(9)(e), (f) and (g) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(9)(e) requires that the identified person will be employed on a full-time basis in the position for at least 2 years.
Secondly, reg 5.19(9)(f) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(9)(g) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the AMSR for the occupation each year.
The AMSR is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
The Tribunal finds on the available information that the nominee has been offered and has accepted a written contract of employment, dated 8 December 2022. A copy has been submitted for review. The contract is in standard employment terms, identifies the nominee, and for which position, referred to by its title as ‘Head of Engineering’, is for a fulltime position for at least 2 years. The information shows that the nominee has been working in the role since his engagement in 2022, and which exceeds the minimum 2-year period at the time of this review.
Reg 5.19(9)(e) is therefore met.
The Tribunal further finds that the employment contract does not include an express exclusion of the possibility of extending the period of employment.
Reg 5.19(9)(f) is also met.
Reg 5.19(9)(g) - Does the nominator’s business have the capacity to employ the nominee, as the identified person, for at least 2 years and to pay the person at least the AMSR for the occupation each year?
The Tribunal has noted the multiple financial documents submitted.
The representative also makes the following submission, which the Tribunal found compelling, and which is useful to set out in full:
“14 February 2025
INTRODUCTION
I am writing in my capacity as the Registered Migration Agent representing Datix Pty Ltd (trading as QuickClaim) in relation to the appeal against the refusal of the nomination application for Mr. Amin Farzin under the Employer Nomination Scheme (subclass 186). This submission provides additional evidence and references relevant precedent cases to demonstrate QuickClaim’s financial capacity and the essential nature of Mr. Farzin’s employment, in accordance with the Migration Regulations 1994.
1.    FINANCIAL VIABILITY AND BUSINESS GROWTH COMPANY OVERVIEW
QuickClaim, established in 2014, is a software provider catering to disability and aged care service providers, facilitating seamless interactions with the National Disability Insurance Scheme (NDIS). QuickClaim holds one of only eight NDIS API Aggregator licenses in Australia, solidifying its role as a key player in this niche industry.
FINANCIAL PERFORMANCE
-    Annual Recurring Revenue (ARR): Increased to $1.5 million as of February 2025.
-    Investor Funding: Secured $1.65 million in June 2022 and an additional $1.125 million in 2024, valuing the business at $11 million.
-    Profitability Projection: Expected to achieve profitability by late 2025.
SUPPORTING DOCUMENTATION
To demonstrate financial stability, we submit the following:
-    Company Tax Returns (2023 & 2024)
-    BAS Statements (FY23-FY25)
-    Letter of Solvency from Atlas Chartered Accountants
-    Letter of Support from OIF Ventures (major investor)
-    Payslips for the nominee for the last 3 years
2.   THE CRITICAL ROLE OF MR. AMIN FARZIN
Mr. Farzin has been employed as a Senior Software Developer for over two years, contributing significantly to:
-    Software Development & System Integration for NDIS compliance
-    Ensuring regulatory adherence within the aged care and disability sectors
-    Driving product innovation to meet growing client demand
3.   ADDRESSING THE DEPARTMENT’S CONCERNS UNDER REGULATION 5.19(9)(G)
The Department refused the nomination under Regulation 5.19(9)(g), citing concerns regarding QuickClaim’s financial capacity. This submission rebuts that claim by demonstrating:
-    Consistent Salary Payments: Mr. Farzin’s salary has been paid for over two years without issue.
-    Investor-Backed Growth Model: QuickClaim operates on a venture capital-funded model, ensuring financial stability.
-    Sustainable Business Model: Forecasts show ongoing profitability and financial security beyond 2025.
4.   INCONSISTENCY OF THE DEPARTMENT’S DECISIONS
The Department approved a Nomination for a similar position, just 2 months earlier, based on the same company documents.
We attach the previously approved Nomination, which highlights the inconsistency in decision based on the same supporting evidence.
5.   PRECEDENT CASES SUPPORTING OUR POSITION
The Tribunal has ruled favorably for businesses in similar circumstances, and recognized a company’s venture capital funding and ARR growth as sufficient financial capacity despite short- term losses.
The Tribunal also acknowledged that participation in government-backed R&D programs indicated long-term financial sustainability.
These cases demonstrate that high-growth technology firms, even when operating at a loss, can satisfy financial viability criteria.
5. SUPPORTING DOCUMENTATION
The following documents are attached in support of this submission:
-    Employment Contract of Mr. Amin Farzin
-    BAS Statements for FY23-FY25
-    Company Tax Returns (2023 & 2024)
-    Letters from Investors & Accountants
-    Company Financial Statements
CONCLUSION
Given the evidence provided, we respectfully request that the Tribunal overturn the
Department’s refusal and approve Mr. Farzin’s nomination. QuickClaim has demonstrably strong financial backing, a sustainable growth trajectory, and an undeniable need for Mr. Farzin’s skills.
I remain available to provide any additional information as required.”
Findings
The Tribunal accepts those submissions set out above and in summary finds:
a.The applicant currently holds a NDIS aggregator licence, one of only 8 in Australia, and is recognised as a professional and reliable financial services provider in the space; although there is no evidence as to the value attributable to the licence itself, or its transmissibility together with losses carried forward on transfer or sale[2], the Tribunal can accept that it is an asset of considerable worth to the applicant.
b.The applicant conducts business on a sustained capital-funded model from investor-backing. Investor funding from which the applicant has been reliant over the past several years, including further seed funding since 2022 totals $2,775,000 and which has led to an estimated business value at $11,000,000. ASIC records show currently there are no less than 19 beneficial shareholders as contributories to the applicant’s capital. Contributories for the venture capital enterprise include the applicant’s director, Mr Amir Hosseini and his private company; Archangel Ventures; Algorithm Investments; Billfolda Ventures; Mr Colin Wu (Hong Kong); HK Investments; and Thro Cloud Pty Ltd.
c.The nominee has already been employed for least least two years since December 2022 on his agreed salary ($160,000); produced payslips confirm the nominee’s salary payments at the gross rate of $$10,833.33 per month (nett $7,847.33); there is no evidence that salary payments historically and over the period of the nominee’s continuing employment have not been met.
d.An updated organisation chart shows the positions occupied in the business, and numbering 14 staff, 10 of whom are Australian citizens, and includes the nominee as Head of Engineering on a Subclass 482 visa, and 2 other visa holders (subclass 482) and 1 foreign resident employee.
e.A letter from the applicant’s accountants, dated 1 November 2024, attesting to solvency. It attests to the applicant’s “future viability”, based on a review of the company’s financial records and 24-month cash flows, cash reserves and Balance Sheet, with no “material outstanding liabilities”. The submission is supported with current financial statements. It further notes that the NDIS API aggregator licence is valuable intellectual property and “highly sought after”.
f.The submission notes that the Department had approved a nomination by the applicant previously, based upon “the same company documents”. The Tribunal has not had access to the applicant’s previous sponsorship history but can accept in principle the logicality and expectation of consistency in government decision-making.
g.A venture capital-funded business model in principle is not inconsistent with acceptable ‘financial capacity’ and should not be regarded as an impediment to a successful nomination, based upon consideration of its ‘financial capacity’. It is relevant to consider the overall context of the business model under consideration, the applicant’s history, and reasonable conclusions for future viability for meeting its migration obligations, drawn from that experience.
[2] Such losses are subject to ATO business continuity and ownership testing – see ATO website - >
Financial conclusions and estimations relied upon, as here, are not assured, but the financial future and enterprise viability of most small businesses will always contain an element of uncertainty as to predictions.
The issue for the Tribunal is not so much to be satisfied by way of ‘guarantee’ as to the financial future, but rather to find comfortable assurance that the applicant is operating on a sustainable business model which will have the capacity to employ the nominee, as the identified person, for at least 2 years and to pay the person at least the AMSR for the occupation each year.
The Tribunal finds on the available information that it has reached a state of satisfaction as to the future viability of the applicant as nominator for the designated period of two years and will have the financial capacity to meet its obligations to the nominee accordingly for that period.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of sub-reg 5.19(9)(e), (f) and (g) for approval of the nomination of the position in Australia.
The appropriate course is to remit the matter to the Department for consideration of the remaining criteria for the nomination application.
DECISION
The Tribunal remits the decision under review for further consideration with the direction that the applicant meets sub-regulations 5.19(9)(e), (f), and (g) of the Regulations.
Representative for the Applicant: Mr Adam Khaze (MARN: 0960138)
ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(aa) if the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa–be made before 16 November 2019 (subject to subclause (2A)); and
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.
(2A) Paragraph (2)(aa) does not apply if:
(a) the application identifies a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream; and
(b) the identified person is a transitional 457 worker or transitional 482 worker at the time the application is made.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)either:
(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
…
Direct Entry stream—additional requirements for approval
(9)If the nomination relates to a visa in a Direct Entry stream, the following requirements must also be met:
(a)the nominator is actively and lawfully operating a business in Australia;
(b)if the nominator’s business activities include activities related to the hiring of labour to other unrelated businesses—the position is within the business activities of the nominator and not for hire to other unrelated businesses;
(c)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(d)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(e)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(f)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(g)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(h)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(i)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(j)the requirements set out in subregulation (10) or (12) are met.
Occupations for the Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream
(10)The requirements of this subregulation are as follows:
(a)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (11); and
(ii)in force at the time the application is made;
(b)the occupation applies to the identified person in accordance with that instrument.
(11)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (10) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
Occupations for the Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream
(12)The requirements of this subregulation are as follows:
(a)the position is located at a place in regional Australia;
(b)the business operated by the nominator is located at that place;
(c)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(d)the tasks to be performed in the position correspond to the tasks of an occupation specified in a legislative instrument:
(i)made under subregulation (13); and
(ii)as in force at the time the application is made;
(e)the occupation applies to the identified person in accordance with that instrument;
(f)the Minister has been advised by a body that meets the requirements set out in paragraph (g) of this subregulation about matters relating to the following:
(i)whether the identified person would be paid at least the annual market salary rate for the occupation;
(ii)whether there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(iii)whether the position can be filled by an Australian citizen or an Australian permanent resident who is living in, or would move to, the local area concerned;
(g)the body must:
(i)be specified in a legislative instrument made by the Minister for the purposes of this paragraph; and
(ii)be located in the State or Territory in which the position is located; and
(iii)have responsibility for the local area in which the position is located.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of subregulation (12) and, for each occupation, specify any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(a)the nominator;
(b)the identified person;
(c)the occupation;
(d)the position in which the identified person is to work;
(e)the circumstances in which the occupation is undertaken;
(f)the circumstances in which the person is to be employed in the position.
…
Meaning of regional Australia
(16)In this regulation:
regional Australia means a part of Australia specified in legislative instrument made by the Minister for the purposes of this definition.