MIQ Digital Australia Pty Ltd (Migration)

This matter concerned an application by MIQ Digital Australia Pty Ltd (MIQ) for approval of its nomination for the position of Marketing Specialist, with Mr Anderson nominated for the role. The application was made on 31 January 2018, and the delegate refused to approve the nomination. MIQ sought review of this decision before the Tribunal.

The primary legal issues before the Tribunal were whether MIQ’s nomination complied with specific requirements of regulation 5.19(4) of the Migration Regulations 1994. These included whether Mr Anderson would be employed in the nominated position full-time for at least two years, with terms and conditions that did not expressly exclude an extension; whether the terms and conditions of employment were no less favourable than those provided to an Australian citizen or permanent resident for equivalent work; and whether the nomination met the requirements of regulation 5.19(4)(h), specifically concerning a genuine need for the position, alignment of tasks with an specified occupation, and compliance with training requirements.

The Tribunal found that MIQ met several criteria of regulation 5.19(4), including those relating to the application being made in accordance with the approved form, the identification of a need for a paid employee under the nominator's direct control, the nominator actively and lawfully operating a business, and the absence of adverse information or a satisfactory record of compliance with workplace relations laws. Crucially, the Tribunal was satisfied that Mr Anderson’s employment contract did not expressly exclude the possibility of an extension, that his employment was full-time and permanent, and that there was no evidence to suggest termination within the next two years, despite the delegate's concerns about MIQ's financial viability. The Tribunal also considered the evidence provided by MIQ regarding its operations, financial position, and Mr Anderson's employment and remuneration.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision approving MIQ's nomination.