Lee & Choi Pty Ltd ATF Lee & Choi Trust (Migration)

This matter concerned an appeal by Lee & Choi Pty Ltd ATF Lee & Choi Trust (the applicant) against a decision to cancel its sponsorship approval. The dispute arose from allegations that the applicant had failed to satisfy its sponsorship obligations, specifically concerning the terms and conditions of employment provided to a sponsored person and whether that person worked in their nominated occupation. The case was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant had failed to satisfy its sponsorship obligations under the Migration Act 1958 and the Migration Regulations 1994. The specific obligations in question were Regulation 2.79, which mandates ensuring equivalent terms and conditions of employment, and Regulation 2.86, which requires ensuring the sponsored person works or participates in the nominated occupation. The Tribunal also had to consider the prescribed circumstances for taking action under section 140M of the Act, including the criteria for determining what action, if any, should be taken.

The Tribunal found that the delegate's conclusion that multiple bank transactions constituted a repayment of wages, thereby breaching Regulation 2.79, was not sufficiently established. The Tribunal noted that it had no material bearing on its decision-making process regarding two certificates provided by the department. Crucially, the Tribunal concluded that none of the circumstances for taking action under section 140L(1)(a) of the Act existed. Consequently, the power to take action under section 140M did not arise.

The Tribunal set aside the decision under review and substituted a decision not to take any of the actions specified in section 140M of the Migration Act 1958.