MIQ DIGITAL AUSTRALIA PTY LTD (Migration)

MIQ DIGITAL AUSTRALIA PTY LTD (Migration) [2021] AATA 5612 (25 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MIQ DIGITAL AUSTRALIA PTY LTD
CASE NUMBER:  1826346
HOME AFFAIRS REFERENCE(S):          BCC2018/526334
MEMBER:Deputy President J.L Redfern PSM
DATE:25 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 25 October 2021 at 12:50 PM

CATCHWORDS:
MIGRATION – Employer Nomination Scheme – Direct Entry stream – Marketing Specialist – consideration of financial capacity to maintain nominee’s full-time salary for at least 2 years – financial position of related overseas entity – whether terms and conditions of employment are no less favourable than those provided to an Australian citizen or permanent resident – consideration of training requirements – decision under review set aside
LEGISLATION:
Migration Act 1958 (Cth), s 245AR
Migration Regulations 1994 (Cth), reg 5.19
SECONDARY MATERIALS:
Department of Home Affairs, PAM3 – Div 5.3 General – Approval of nominated positions (employer nomination) – Regulation – 5.19
IMMI 17/074
IMMI 18/005
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 August 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, MIQ Digital Australia Pty Ltd (MIQ), applied for approval of two positions on 31 January 2018. MIQ is a company limited by shares and it is wholly owned by Media IQ Digital Ltd, which is based in the United Kingdom. MIQ is said to be part of a global group operating from London, North America, Europe and the Asia Pacific which uses analytics technology to identify data for use by its clients to drive growth. MIQ was established in Australia in 2016.
Employer nominations are intended to enable Australian employers to recruit, for permanent positions, skilled workers either from overseas or who are temporarily in Australia, where the employer has not been able to fulfil their needs from the Australian work force or through their own training efforts. The employer nominations scheme involves two stages, firstly, an employer seeking approval of a nominated position in which an individual is proposed to be employed in Australia and secondly, a person applying for a permanent position on the grounds the visa applicant proposes to be employed in that position.[1]
[1] Department of Home Affairs, PAM3 – Div 5.3 General – Approval of nominated positions (employer nomination) – Regulation – 5.19, 5.1.1.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
In this case, MIQ applied for approval of two nominations, seeking to satisfy the criteria in the Direct Entry nomination stream. The Direct Entry stream is limited to applicants who are nominated in relation to an occupation specified in a legislative instrument in force at the time the application is made. The two positions nominated by MIQ were for Marketing Specialists. MIQ applied under the Employer Nomination Scheme which allows the position and nominated business to be located anywhere in Australia but provides that certain training requirements must also be met.
The delegate refused both applications on the basis MIQ’s nomination did not satisfy reg 5.19(4) of the Regulations because the delegate was not satisfied that the nominees for the position would be employed for two years. In other words, the delegate was not satisfied about the financial viability of the business. The delegate did not make an assessment or findings in relation to the balance of the requirements for approval of the nomination.
Mr Jonathan Nathanael Wauchope was nominated for one of the positions by MIQ as a senior trader, marketing specialist and because his application was dependent upon the nomination being approved, his application for the related visa was also refused. Mr James Mark Alexander Anderson was nominated for the other position of senior trader by MIQ. Mr Wauchope applied for the related work visa with his spouse and child as secondary visa applicants. The Wauchope family’s visas were dependent upon the nomination being approved and because the nomination was refused their applications for the related visas were also refused.
MIQ applied to the Tribunal for the review of the refusal of the nominations in both matters and in June 2021 the Tribunal requested further information in support of the application, which was provided in July 2021. MIQ also provided extensive submissions addressing each of the relevant requirements in the Regulations. Mr Anderson and the Wauchope family applied for review of the refusal of their related work visas (matter no. 1830394 and 1829601 respectively). Because there were common issues relevant to the determination of each of the reviews, the nominations and related visa applications were listed for hearing concurrently and all applications were listed on the same day. Relevantly, the outcome of the proceedings in relation to the MIQ nominations are critical to the potential outcome in the related visa applications.
MIQ appeared before the Tribunal on 6 October 2021 and was represented in relation to the review by its lawyers. The proceedings in relation to the nomination of Mr Wauchope was listed first. Oral evidence was provided by the chief executive officer, Mr Jason Scott, and the finance manager, Mr Benjamin Prentice. Mr Wauchope gave evidence about his role with MIQ. Extensive evidence was given by Mr Scott and Mr Prentice about to the operation of the business in those earlier proceedings. Given the common factual issues in dispute, it was agreed that the evidence in the earlier proceedings should be evidence in the proceedings in relation to the nomination of James Anderson. The review of the nomination and related visa application by Mr Anderson was listed for hearing after the Wauchope proceedings and the evidence given by Mr Anderson in the MIQ proceedings was taken as evidence in his proceedings.
The evidence and findings set out in these reasons are necessarily in similar terms to the evidence and findings set out in MIQ proceedings matter no. 1828227.
For the following reasons, I have decided to set aside the decision under review and substitute a decision approving the nomination. I was provided with considerable assistance from the lawyers for MIQ, Ajuria Lawyers, who provided comprehensive, focussed probative submissions and evidence specifically directed to each of the requirements of the Regulations. Notably, Ajuria complied with the COVID-19 Special Measures Practice Direction – Migration and Refugee Division.
RELEVANT LAW AND INSTRUMENTS
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1) of the Migration Act1958 (Cth) (the Act). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. MIQ does not operate a labour hire business and, accordingly, the requirement in reg 5.19(4)(c) does not apply and is therefore met.
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Regulation 5.19(4)(e) provides that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. The reference to ‘Immigration’ should now be taken to refer to the Department of Home Affairs, which includes the immigration portfolio.
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision. MIQ claims to meet the requirements in reg 5.19(4)(h)(i) which relevantly requires that:
(1)the tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument (subcl (A));
(2)there is a genuine need for the nominator to employ the person identified as a paid employee to work in the position in the position under the nominator’s direct control (subcl (AA)),
(3)the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument (subcl (AAA));
(4)the nominator either:
a)meets the training requirements specified in the relevant instrument (if the business has operated for over 12 months) (subcl (B)(I)); or
b)has an auditable plan for meeting the training requirements (if the business has operated for less than 12 months) (subcl (B)(II)).
The relevant legislative instrument for the specified occupation is Migration (IMMI 18/005: Specification of Occupations and Assessing Authorities – subclass 186 Visas) Instrument 2018 (IMMI 18/005), which commenced on 17 January 2018 and applies to nominations made after this date. IMMI 18/005 sets out the occupations for subclass 186 visas for the purposes of subparagraph 5.19(4)(h)(i)(A) to the Regulations and the relevant ‘assessing authorities’ for the occupations listed for the purposes paragraph186 of Schedule 2 to the Regulations.
Relevant to the facts of this case, Section 8 of IMMI 18/005 includes the occupation of Marketing Specialist being ANZSCO code 225113. The ANZSCO code is the Australian and New Zealand Standard Classification of Occupations code (2013) published by the Australian Bureau of Statistics. ANZSCO is a skill base classification used to classify all occupations and jobs in the Australian and New Zealand labour markets. ANZSCO is used by the Minister as a reference point for various work-related visas.
The relevant legislative training instrument for the purposes of subparagraph 5.19(4)(h)(i)(B) to the Regulations is Migration (IMMI 17/074: Specification of Training Requirements) Instrument 2017 (IMMI 17/074), which commenced on 1 July 2017 and applies to nominations made after this date.
BACKGROUND AND OUTLINE OF EVIDENCE
On 31 January 2018 MIQ made an application for approval of its nomination for the position of Marketing Specialist, as identified in ANZSCO code 225113 Mr Wauchope was nominated for the role.
The application was made on the relevant approved form and was accompanied by the fee prescribed in reg 5.37. The form included a written certification stating that MIQ had not engaged in conduct in relation to the nomination that contravenes s 245AR(1) of the Act, which prohibits the nominator asking for or receiving a benefit in return for sponsoring a visa applicant. The application identified a need for MIQ to employ an identified person, in this case Mr Wauchope, as a paid employee to work in the nominated position under MIQ’s direct control. As such, there is no dispute that the requirement in reg 5.19(4)(a) is met. Notably, this is not an issue that was raised by the delegate.
In documents accompanying the application, the operations of MIQ, and its role as the Australian subsidiary of a global business, was described together with other documents in support of the application including an organisational chart, the relevant company searches for MIQ, job descriptions for the role, market comparisons, details about training expenses incurred and business activity statements for the previous two years. MIQ did not provide financial statements or tax returns in relation to its financial position, nor did the delegate request any further information prior to the refusal of the nomination.
Prior to the hearing, and in response to a request from the Tribunal to provide further information, MIQ provided further evidence in support of the nomination, including details about its operations and the operations of the group, tax returns for the 2018, 2019 and 2020 calendar years, financial statements from its holding company, MIQ Digital Ltd, business activity statements for the previous two and a half years, including business activity statements for the first six months ending June 2021, management accounts for MIQ for the current financial year and a letter of support for the ultimate holding company, Insight Topco Ltd. MIQ also provided examples of the work undertaken by Mr Wauchope, employment details and remuneration paid to him over the period, evidence of comparable market salaries and details of training expenditure for MIQ over the period April 2020 to May 2021.
Oral evidence was given by Mr Scott about the operations of MIQ in Australia and New Zealand and Mr Prentice gave evidence about its financial position. As already noted, it was accepted by the parties in all related proceedings that this evidence should be taken to be evidence in MIQ proceedings no. 1828227.
Set out below is a summary of the key aspects of the evidence provided, being the documentary and oral evidence, all of which I accept.
MIQ was incorporated in Australia in March 2016. It was originally incorporated in the name (Media IQ Digital Australia Pty Limited) but changed its name to ‘MIQ Digital Australia Pty Ltd’ in (May 2018). It has continually operated and been registered with the Australian Securities and Investment Commission (ASIC) since this time. It has both an Australian company number (ACN) an Australian business number (ABN) which is registered with the Australian Taxation Office (ATO). It has lodged business activity statements with the ATO since 2016. According to recent searches of the ASIC register, MIQ has four directors, three directors who are based in the United Kingdom, being Simon Tray, Gurman Hundal and Lee Puri, and one director is based in Australia, being Jason Scott who is also the company secretary and chief executive officer. All of the ordinary shares in the MIQ are held by Media IQ Digital Ltd, which is said to be the holding company based in the United Kingdom. According to submissions provided by its lawyers, MIQ is part of the global MIQ group which is “an analytics technology business that uses its analytical platform AiQ to unlock insights from data to drive business growth”. The headquarters for the MIQ Group is in London and it has offices across North America, Europe and the Asia Pacific.
MIQ provided financial statements dated 30 October 2020 for the year ended 31 December 2019 for its related holding company, Media IQ Digital Ltd (referred to in its financials as ‘MiQ’ but referred to in these reasons as the MIQ holding company). According to those statements, the MIQ holding company is a global company that runs “programmatic advertising campaigns for clients, delivered through AI powered analytics and purpose-built technology”. It is reported that in the financial year ended 31 December 2019, the MIQ holding company and its subsidiaries reported group turnover of $299.8 million with the cost of sales as $216.6 million. The report notes that the group has recently opened offices in Malaysia, China, Thailand and a commercial operation in India and that it had continued to expand its North American operations. It is noted that the group operates in the Asia Pacific region and, relevant to this case, it records the MIQ Australian company as one of its subsidiaries. The MIQ holding company has three directors based in the United Kingdom and they are the same directors as the MIQ Australia directors. It is noted in the financial statements that the MIQ holding company is a private company limited by shares. It is further noted that Insight Topco Ltd is its parent company which was reported to have provided a letter of support to provide funding for a period of at least 12 months from the date of signing the financial statements. The MIQ holding company reported that it made a profit of $15.5 million before tax with cash balances at the end of the year of $8.5 million after paying off $12.4 million of investor notes and $7.9 million of credit facilities during the period.
MIQ also provided the annual report and financial statements for Insight Topco Ltd for the calendar year ended 31 December 2019, also dated October 2020. According to the annual report and financial statements, there were five directors in the company at this time, being the three directors who are also directors of the MIQ holding company and MIQ Australia, with two additional directors being ‘T Wrenn’ and ‘S Easterbrook’. The registered office for Insight Topco Ltd is the same office as the registered office for the MIQ holding company. The overview of the financial statements are in similar terms to the overview provided for the financial statements for the MIQ holding company but in addition it is noted that, subsequent to the balance sheet date and “recognising the continued strength of the group’s trading and cash position, the group voluntarily repaid $19.4 million of the existing investor loan notes from cash generated by the group”. The financial statements provided include the balance sheet for Insight Topco Ltd and the consolidated accounts and balance sheet for group, which includes the MIQ holding company and its subsidiaries. These consolidated accounts record a loss of $7.9 million, attributable to administrative expenses and interest on borrowings, with net assets of $32.6 million. The administrative expenses for 2019 were $83.1 million reported to have been “driven by the group’s continued global expansion”. Relevantly this is also reflected in the financial statements for the MIQ holding company and Insight Topco Ltd.
Insight Topco Ltd provided a letter dated 21 June 2021 said to be signed by Simon Tray, the Global Chief Financial Officer, to the following effect:
29th June 2021
To Whom It May Concern,
I hereby confirm that Insight Topco Limited will provide all subsidiaries within the group with adequate financial support to ensure its business continuity for a period of 24 months from the signature date of this letter.
Although this letter does not provide a legally binding commitment to the remainder of the group, it is within the interests of Insight Topco Limited and the remainder of the group that Insight Topco supports all subsidiaries, and this letter of support will be enforced if required.
Management can also confirm that there are no side agreements or conditions that place restrictions on the support offered, or that would affect the agreement's enforceability.
The company have considered that the going concern basis is appropriate as FRS102 requires that the Company has the ability to continue as a going concern for the foreseeable future. As required by auditing standards, we confirm that we have considered a period of at least 12 months from the date of approval of the financial statements. The group's ability to operate as a going concern has been considered in a separate memo provided to the auditors. This memo confirms that the promised level of support from Insight Topco Limited meets the group's likely cash needs for the foreseeable future.
This letter of support is signed by the Group CFO, who has the ability to bind the parent company in providing the support. In addition to this, no previous confirmations of support have been subsequently withdrawn or revoked.
Finally, management have no concerns about the financial viability of Insight Topco Limited to provide support to the remainder of the group, or about any factors that would affect Insight Topco's Limited's ability to provide the level of support promised. Management are confident that there are no indications that the company may be unwilling to provide the support promised.
Yours Sincerely
Simon Tray Global CFO

Overall, the financial information provided in respect of the associated overseas entities reveals an expansion in the global operations and an increase in turnover and profitability more generally, with increasing expenses generated because of the group’s global expansion.
According to the company tax returns provided for MIQ, for the financial year ended 31 December 2018, it generated sales of $11.6 million, the cost of sales was $6.2 million and, after royalties and other expenses payable to the MIQ holding company of approximately $6.3 million are deducted, MIQ made a net loss of approximately $2 million. Total assets are recorded as $5 million with total liabilities of $7.5 million, a significant proportion of which represented internal fees paid to the head office. Wages paid by MIQ, which were included as liabilities, was in the vicinity of $2.6 million. Losses carried forward were in the vicinity were approximately $2.2 million.
For the year ended 31 December 2019, revenue for the company was $14 million, with $16.5 million in expenses (comprising nearly $8 million in expenses and royalties payable to the head office). The company made a further loss of $2.2 million in this financial year. Net assets were recorded as $5.6 million with net liabilities at $10.5 million (again representing substantial liabilities to the MIQ holding company) with salaries of in excess of $3.4 million. Losses of $4.5 million were carried forward for the purposes of income tax assessment.
In the calendar year ended 31 December 2020, MIQ recorded income of $12.7 million, expenses of $15.4 million, with a loss of $2.6 million. Liabilities exceeded assets in the vicinity of $8 million and losses carried forward were $6.6 million.
According to the profit and loss statements for MIQ as that 30 September 2021, sales had increased significantly to nearly $20 million, with a forecasted year end revenue of $29.3 million. According to Mr Prentice, given the significant increase in revenue it is expected that MIQ will make a profit during this trading year. This is corroborated by the profit and loss statement which includes a projection of just over $15 million for the cost of sales, $2.8 million for the rebate to the holding company, $9.8 million for overheads and net earnings (after tax and depreciation), of $2.1 million. MIQ has $5 million in the bank and has been able to make significant prepayments in loans to the UK holding company.
The business activity statements provided confirm that in the period from 1 October 2020 to 30 June 2021, MIQ reported sales of approximately $19.2 million to the ATO and paid tax of approximately $2.3 million.
According to the submissions provided by MIQ’s lawyers, training for the calendar year ending December 2020 included the employment of two full-time staff to provide training to Australian employees, a learning and development manager and a technical training manager, the employment of two full time graduate (associate) traders who completed a university degree in the two years prior to 2020 in a structured associate trader program and training through registered and external training providers. In support of this contention, MIQ provided employment contracts and payslips for the two full time training roles and graduate trader roles, training invoices for Communications for Commerce and invoices for training undertaken by the UK Trading Director in March 2020. It is submitted that MIQ’s total expenses for 2020 calendar year is $99,352.14 which is 2.09% of their payroll of $4,744,893.
Mr Scott explained the business operated by MIQ, his role in the business and the respective roles of Mr Anderson and Mr Wauchope. Mr Scott commenced with MIQ in October 2019 and he is in charge of the Australian and New Zealand operations. There are no employees in New Zealand and those clients are serviced through the Australian operations. The business is a programmatic media business, operating through digital radio, television and the Internet. The company obtains data through various sources that collect the data. The sources include subscriptions to companies that collect data or data obtained directly from clients. Some of this data is sourced through subscriptions paid for by the MIQ holding company. MIQ does not operate in social media. Its clients include a range of large corporate entities, such as Proctor and Gamble and Microsoft, marketing/advertising agencies and smaller independent agencies. The business has grown significantly over the past five years. It started in 2016 in a partnership model but after the business established itself in the following years, it generated its own sales arm. MIQ established its head office in Sydney but has now opened offices in Melbourne and operates in Brisbane, Adelaide and Perth.
MIQ develops products for clients based on analysis of data relating to customer habits and interests. There are three critical streams of its operations. The sales area is client facing. Employees who work in the sales area work directly with clients, which include marketing agencies, to prepare a brief of what is required. The sales staff then work closely with the trading team. The trading team analyses the data and undertakes further market research. It is important for traders to have expertise in analysis and a mathematical or data analysis background is helpful. Traders look at live data on a regular basis and make decisions about trends in the reports and recommendations that are generated. Traders need to have a good operating knowledge of the media and an understanding of the marketing interface. Market research is an integral part of the role. The third arm of the business is the customer service team who work with the traders to set up parameters for the customer and oversee the technical monitoring and reporting. The customer service team is responsible for implementing the recommendations made by the traders. Both Mr Wauchope and Mr Anderson commenced their work with MIQ in 2016 as senior traders. Mr Scott said that Mr Wauchope was originally part of the trading team and was the trading manager, but he had recently been appointed to the role of trader for emerging markets, in particular, the market in Western Australia. He said that it was difficult to find expertise for these trading roles as it required particular skills and expertise. Mr Scott said that MIQ had found that the best way was to develop these roles through recruitment at graduate level with training by experienced traders such as Mr Anderson and Mr Wauchope. Both were to be employed on a full-time basis for at least the next two years.
Mr Wauchope has worked with MIQ as a senior trader since 2016. Prior to this he worked for the MIQ holding company in the United Kingdom as a trader, working on major online digital campaigns for corporations such as Volkswagen. He worked with the MIQ holding company from 2011 until 2016, initially as an intern, then as an ad trader and digital marketing specialist and finally as a senior digital marketing specialist. Prior to this he worked as a sales advisor. He has a Bachelor of Arts in Entrepreneurship and Management conferred by Kingston University in 2013 he was married to the second named applicant in April 2014 and their child was born in February 2018. Mr Wauchope said that as a senior trader, he conducted market research and, based on this research, would develop plans for an advertising campaigns. He said that it was an important part of the role to “think outside the box” and be able to undertake analysis. He presented marketing campaigns and provided guidance to new traders. Apart from Mr Anderson, he was the most senior trader on the floor at MIQ. When he commenced with MIQ in Australia he was on a base salary of $60,000 per annum which was increased to $95,000 per annum.
Mr Wauchope entered into a contract of employment with MIQ dated 10 May 2016 appointing him to the role of senior trader on a base remuneration package of $60,000 per annum, exclusive of superannuation, together with an entitlement to participate in the company’s trader commission scheme. His hours were 9 am to 5:30 pm Monday to Friday and he was entitled to 25 days annual leave. Both parties are entitled to terminate the contract upon giving two months’ notice. There is no probation period and the contract contains a number of standard general provisions. Mr Wauchope’s remuneration was increased to $85,000 in October 2016 and then to $95,000 effective from 1 August 2018. This is Mr Wauchope’s current remuneration.
The MIQ holding company provided a letter to the Department dated 29 January 2018 in support of the application for the nomination. It was noted that the terms of Mr Wauchope’s employment are set out in this contract and that his contract is not subject to any express exclusion of the possibility of ongoing employment. Review of the contract of employment of May 2016 confirms that this is the case. The letter further confirmed that the position of senior trader was available to Mr Wauchope on a full-time basis for a period of at least two years. The contract provides for termination by either party giving no less than two months prior notice, but does not otherwise have an end date.
MIQ evidence in relation to comparable marketing roles that had been recently advertised on Indeed.com. One such role was an advertisement for a Marketing Specialist with RoZetta Technology in the range of $80,000-$100,000 a year. Review of the job description and responsibilities reveal that this role is similar to the role undertaken by Mr Wauchope. A further recent advertisement was provided for a Marketing Specialist role for Prop tech with the remuneration of $90,000 per annum. The role description was also similar to Jonathan Wauchope’s role.
Mr Scott said that the group had undertaken salary benchmarking for all of its employees. According to Mr Scott, the remuneration provided to both Mr Anderson and Mr Wauchope was favourable having regard to market research in relation to comparable roles. MIQ provided evidence of a salary increase and a payslip for an Australian employed as a Trader, their base salary rate is $80,000 per annum. Apart from Mr Anderson and Mr Wauchope, three of the traders in the team are Australian citizens or Australian permanent residents.
Mr Scott also gave evidence that he was not aware of any breaches of the Commonwealth or state laws by MIQ.
SUBMISSIONS AND ISSUES FOR DETERMINATION
The lawyers for MIQ submit that it meets the requirements of reg 5.19 (4)(a), which I accept.
It is submitted that MIQ is actively, lawfully and directly operating a business in Australia which I also accept. This is evidenced by the ASIC searches, the business activity statements had been lodged with the ATO from 2016 to June 2021 and the tax returns and financial statements, together with the evidence of the witnesses at the hearing.
It is submitted that the requirements of reg 5.19(4)(d) are satisfied because Mr Wauchope is employed on a full-time basis, has been employed on a full time basis since 2016 in a similar role and will be employed in the position for at least two years. It is further submitted that while policy provides that the financial capacity of the nominator might be a relevant factor to be considered if there is some doubt about the viability of the nominator, policy instructs that the delegate is not expected to undertake detailed analysis of the nominator’s financial position. It is contended that, in any event, the Tribunal should be satisfied about the financial viability and ongoing employment of Mr Wauchope given the company’s current trading history, the commitment of the MIQ holding company and the fact that there is no evidence that MIQ is in financial difficulties. As noted in proceedings 1828227, there is considerable force to these contentions and given this was the basis on which the approval for the nomination was refused by the delegate, this remains a contentious issue which warrants detailed analysis.
Regulation 5.19(4)(e) provides that the terms and conditions of employment applicable to the position must be no less favourable than those that are would be provided to an Australian for performing equivalent work. It is submitted that while this is a specialised market, there is sufficient evidence to establish that this requirement has been met.
It is further submitted that there is no evidence of adverse information known to Immigration before the Tribunal. Nor is there evidence that MIQ does not a satisfactory record of compliance with the laws of the State and the Commonwealth and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. It is therefore submitted that MIQ meets the requirements in regs 5.19(4)(f) and (g). I accept this submission based on my enquiries of the Department of Home Affairs database known as Integrated Client Services Environment (ICSE) and the evidence of Mr Scott.
MIQ must meet the criteria in in reg 5.19(4)(h)(i)(A)-(AAA) and (B). It is submitted the nomination meets the requirements in sub-clauses (A)-(AAA) because Mr Wauchope continues to be employed in the nominated role, albeit at a more senior role than when he started, and his role continues to be closely aligned with the ANZSCO classification for the occupation of Marketing Specialist (225113). It is further submitted that MIQ meets the training requirements in subclause (B) because there is evidence that it has expended 1% of its payroll on training for local staff through internal and external programs. After the hearing, MIQ provided further evidence and submissions to substantiate this claim.
MIQ must meet all of the criteria in reg 5.19(4). As already noted, I am satisfied that MIQ meets the criteria in reg 5,19(4)(a), (b), (f) and (g). The criterion in reg 5.19(4)(c) does not apply. These matters are uncontentious. However, the criteria in reg 5.19(4)(d), (e) and (h) are more contentious and involve substantive findings of fact. Accordingly, having regard the relevant criteria for the approval and the undisputed evidence that I accept in relation to requirements of reg 5.19(4), the issues for consideration are as follows:
1)Does the nomination comply with reg 5.19(4)(d) namely, am I satisfied Mr Wauchope will be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension?
2)Are the terms and conditions of employment applicable to the position no less favourable than those that are would be provided to an Australian citizen or permanent resident for performing equivalent work?
3)Does the nomination comply with reg 5.19(4)(h) namely, am I satisfied that the nomination meets the requirements that: first, there is a genuine need for a position that Mr Wauchope currently performs, where the tasks are aligned with an occupation specified by the Minister: and, secondly, the training requirements?
CONSIDERATION
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
If I am satisfied that MIQ meets all the requirements of reg 5.19(4), I must approve the nomination. For the reasons set out above, I am satisfied that MIQ meets 5,19(4)(a), (b), (f) and (g) and I find accordingly. The contentious issues for consideration relate to reg 5.19(4)(d), (e) and (h). These matters are considered below.
Term of employment of the visa holder: reg 5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
I am satisfied, having regard to the terms and conditions of the written contract, that those terms and conditions do not expressly exclude the possibility of an extension. There is no dispute that Mr Wauchope has been continuously employed by MIQ for the past five years in the role of a senior trader and more recently, working in emerging markets. I am also satisfied, based on the history of his employment and the evidence of Mr Scott, that this is a role he will continue to be employed in over the next two years. There is no dispute that this is full time employment and it is permanent, although subject to termination with two months’ notice. There is no evidence to suggest Mr Wauchope’s employment will be terminated within the next two years. Relevantly, there is evidence to the contrary, being the written statement of MIQ, the evidence of Mr Scott, the evidence about the growth of the business and the history of employment over a period of five years. The only contentious matter is whether there is any issue about the financial viability of MIQ in continuing its operations over the next two years. This was apparently the basis on which the delegate refused to approve the nomination.
The policy to which the lawyers refer is the Procedural Instruction for the approval of nominated positions (employer nomination) - Regulation 5.19 published by the Department.[2] the procedural instruction does not have any legislative force but it is nonetheless a useful guide for decision-makers in assessing whether a nominator meets certain criteria.
[2] Department of Home Affairs, PAM3 – Div 5.3 General – Approval of nominated positions (employer nomination) – Regulation – 5.19
Relevantly, section 7.4.5 of the instruction provides a guide for delegates in relation to the matters to be taken into account in making an assessment about the financial viability of a nominator for the purposes of assessing whether the company will be able to provide the nominee with at least two years of full-time employment. The instruction provides as follows:
Delegates need to be satisfied that the nominator has sufficient financial capacity to comply with the requirement to provide the nominee with at least 2 years of full-time employment. A simple statement that they can provide the 2 years of full-time employment is not sufficient evidence of the employer’s ability to comply with this requirement.
Delegates are not expected to undertake detailed analysis of the nominator’s financial situation, but may be prompted to make inquiries based on information submitted. For example, if there is evidence of possible financial difficulty such as being under external administration or having made a heavy loss in the most recent financial period, the delegate may wish to investigate further.
The assessment of financial capacity should relate to the entity lodging the nomination. Financial information relating to other entities that may be related to or associated with the nominator cannot be considered in this assessment.
…………….
Delegates should bear in mind that the assessment they are making is whether the business has the capacity to meet its employment obligations in regard to the nominee for a period of at least 2 years. The assessment is based on a future projection of the financial capacity of the business in an environment that is subject to change - this assessment is likely to be subjective.
As observed in my reasons in matter no. 1828227, I do not agree with the statements of principle that the assessment is likely to be subjective and that financial information relating to other entities that may be related or associated cannot be considered in this assessment. As stated in my reasons in those proceedings, it is not only possible but desirable that any assessment about future financial viability should be based on objective material. I also consider that it can be entirely appropriate and useful to review financial information about related entities if that information is relevant to intercompany dealings and loans and is otherwise relevant to the financial viability of a company, as is the case here.

In this case, I am sufficiently satisfied about the financial viability of MIQ to be satisfied about the continued employment of Mr Wauchope for the next two years.
MIQ has operated over the past five years and has generated significant sales revenue. It has not generated a net profit during this period although it has repatriated significant funds to its holding company expenses and repayment of loans. While it has a deficit of liabilities over assets, it has the support of its holding company and the ultimate parent company, Insight Topco Ltd, which carries weight, particularly given its operations have been supported over the last five years when the business was still growing. I am satisfied that MIQ is part of a global business that has been operating for a number of years and has been successful in its rapid growth. It is relevant to note that during this calendar year MIQ has generated over $19 million in sales and is forecast to generate approximately $29 million in sales by the end of the calendar year. This is evidenced by the most recent business activity statements provided by MIQ. According to Mr Prentice, MIQ is likely to make profit for the first time since it has been operating in Australia and this evidence is corroborated by the financial information provided by MIQ, including the profit and loss statements.
I therefore find that MIQ meets the requirement in reg 5.19(4)(d) because I am satisfied, on the basis of the evidence provided, that Mr Wauchope will be employed in the nominated position for at least two years full-time and that the terms and conditions of his employment do not expressly exclude the possibility of an extension. On balance I accept that his term will likely extend beyond this if MIQ continues with the success that it has apparently been able to establish over the past few years.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
I am satisfied, based on the evidence provided by MIQ about comparable market salaries and the evidence of Mr Scott, who I found to be a credible and knowledgeable witness, that the remuneration currently being paid to Mr Wauchope is in line with market expectations, and possibly more favourable because of the eligibility for an additional bonus and the payment of private health insurance. Review of the terms and conditions of Mr Wauchope employment also reveals that those terms are in accordance with usual terms and, if anything, are more favourable in terms of annual leave. I am therefore satisfied that the terms and conditions of employment applicable are no less favourable than those that are or would be provided to an Australian citizen or permanent resident performing equivalent work in the Sydney office of MIQ.
I therefore find that the requirements of reg 5.19(4)(e) are met.
Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)
Regulation 5.19(4)(h)(i)(A) requires that the tasks to be performed by the nominee in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing, which is in this case IMMI 18/005. As already noted, the relevant occupation specified is the occupation of Marketing Specialist, ANZSCO code 225113.
The occupation of Marketing Specialist is within the ANZSCO unit grouping 2251 Advertising and Marketing Professionals. It is noted that;
Advertising and marketing professionals develop and coordinate advertising strategies and campaigns, determine the market for new goods and services, and identify and develop my capital market opportunities for new and existing goods and services.
It is further noted that the indicative skill level for most occupations in the unit group is a bachelor degree or higher qualification, although at least five years of relevant experience may substitute for the formal qualification. Tasks in the occupation are said to include planning, developing and organising advertising policies and campaigns to support sales objectives, advising executives and clients on advertising strategies and campaigns to reach target markets, coordinating production of advertising campaigns involving specialist activities and, relevant to this case, television and film production media placement, analysing data regarding consumer patterns and preferences, interpreting and predicting current and future consumer trends, researching potential demand and market characteristics of goods and services, collecting and analysing data and other statistical information, supporting business growth and execution of marketing objectives, commissioning and undertaking market research to identify market opportunities and advising on all elements of marketing such as product mix, pricing, advertising and sales and promotion and distribution channels.
Having regard to the written role description attached to Mr Wauchope’s contract and the evidence given by both him and Mr Scott in relation to the tasks performed in his role, I am satisfied that the requirements in reg 5.19(4)(h)(i)(A) are met. I am satisfied that Mr Wauchope currently undertakes, and has undertaken for many years, a number of these key tasks. He provides guidance to members in the trading team in relation to these matters. The core function of the trading team is to undertake marketing research for its clients using analytical tools and technology. Mr Wauchope undertakes direct marketing and research functions for MIQ’s clients and advertising agencies and under his current role, he is focussing on these matters for MIQ in its “emerging markets”.
In addition, reg 5.19(4)(h)(i)(AA) requires that there must be a genuine need for the nominator to employ the person identified as a paid employee to work in the position under the nominator’s direct control. There is no issue that Mr Wauchope works under the direct control of MIQ. I am satisfied that MIQ has a genuine need for the role that Mr Wauchope is currently undertaking and has undertaken for a number of years. It is a specialist position in a unique business. He joined the company from its UK operations to assist with the establishment of the MIQ business in Australia and, having regard to the evidence of Mr Scott, I am satisfied he has performed an integral role in its growth in Australia. I am thus also satisfied that the requirements of reg 5.19(4)(h)(i)(AAA) have also been met.
Regulation 5.19(4)(h)(i)(B) applies when the nominator’s business has operated for at least 12 months, as in this case. The requirements for training of Australian citizens and permanent residents are set out in IMMI 17/074. Nominators are required to meet either Training Benchmark A or Training Benchmark B. The lawyers for MIQ contend that the nominator relies on Training Benchmark B, which requires recent expenditure of the business to the equivalent of at least 1% of the payroll of the business.
Relevantly IMMI 17/074 states:
Training Benchmark B:
Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training of employees of the business who are Australian citizens and Australian permanent residents.
The business is also required to show that the provision of training is related to the purpose of the business.
Recent expenditure for Training Benchmark B is defined as expenditure made in the previous financial year or the previous 12 months, as evidenced by a receipt for the payment(s) or a contract for employment of the relevant individual for whom salary payments are being included within expenditure that can count towards the benchmark.
Applicable expenditure
Expenditure that can count towards this benchmark includes:
a)    payments for Australian employees to undertake a formal course of study, including any reasonable and necessary associated costs (e.g. costs of travelling to the training venue or access an online training programme);
b)    payments to RTOs to deliver face-to-face training to Australian employees that will contribute to an Australian Qualifications Framework qualification;
c)     purchase of an eLearning platform or standalone training software;
d)    payments to cover the salary of Australian employees:
·engaged by the business as apprentices or trainees under a formal training contract; or
·who
ohave completed an undergraduate or higher degree in a university within the last 2 years, and
oare participating in a formal, structured graduate program for up to 2 years, or completing a professional year following their graduation
e)    the salary of a person whose sole role is to provide training to Australian employees;
f)   expenditure to attend conferences for continuing professional development.
Note: Australian employee is defined as an Australian citizen or Australian permanent resident.
MIQ provided employment contracts for two full time graduate traders and for a learning and development manager and technical training manager. According to the evidence provided, the MIQ holding company employees to full-time employees, being a learning and development manager and a technical training manager. The duties of those employees are to provide training and development to employees within the group, including the MIQ Australian subsidiary. MIQ assesses that the percentage of their salaries that would be attributable to training of the Australian employees for the previous 12-month period would be in the vicinity of $25,239. This amount represents the contribution paid by MIQ to its holding company for contribution to these expenses. In addition, MIQ employs two associate traders who are claimed to be Australian citizens and who completed a university degree in the two years prior to 2020 in a structured associate trader program. According to MIQ, the salaries paid to these graduates was in the vicinity of $59,000. Having regard to the evidence provided, which included copies of the relevant contracts, letters confirming the details of payment and various invoices, I accept the amounts claimed by MIQ represent applicable expenditure within the meaning of the instrument. In addition to this evidence, MIQ provided further evidence of invoices for training through registered and external training providers.
In summary, based on the evidence and submissions provided I am satisfied that the training expenses incurred by MIQ in the 2020 calendar year was $99,352. The payroll for this calendar year, as evidenced by the 2020 tax return was in the vicinity of $4.7 million. As such, the total monies paid by MIQ in training expenses in 2020 was 2.09% of payroll, which is more than double the training expenses required to meet Training Benchmark B. I am therefore satisfied that the requirements of reg 5.19(4)(h)(i)(B) are met.
Accordingly, I am satisfied that the requirements of reg 5.19(4)(h) are met.
CONCLUSION
Based on the findings above, I am satisfied that MIQ meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
J.L Redfern PSM
Deputy President

ATTACHMENT - Extracts from the Migration Regulations 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) 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; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating 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; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)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; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       all of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2021] AATA 5612

25 October 2021

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