MIQ DIGITAL AUSTRALIA PTY LTD (Migration)

This matter concerned an application by MIQ Digital Australia Pty Ltd for approval of its nomination for the position of Marketing Specialist under the Direct Entry stream of the Employer Nomination Scheme. The delegate had refused to approve the nomination, and MIQ sought review of that decision before the Administrative Appeals Tribunal. The Tribunal was required to consider whether MIQ met all the criteria stipulated in regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the nominated employee would be employed for at least two years full-time 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 complied with the requirements concerning a genuine need for the position and specified training requirements. The Tribunal also considered the financial capacity of MIQ to maintain the nominee’s full-time salary for at least two years, which had been the basis for the delegate's refusal.

The Tribunal found that MIQ satisfied several criteria under regulation 5.19(4), including that the employee would be employed full-time for at least two years and that the employment contract did not expressly exclude the possibility of an extension. The Tribunal was satisfied, based on the evidence of the nominee's five-year employment history and the projected growth of the business, that there was a genuine need for the position and that the nominee would continue to be employed for the next two years. Crucially, the Tribunal found that the financial capacity of MIQ was sufficient to meet its obligations, overturning the delegate's concern on this point. The Tribunal also considered the training requirements and found them to be met.

The Tribunal set aside the delegate's decision and substituted a decision approving the nomination.