SUMMER'S CAFEINE PTY LTD (Migration)

This matter concerned an appeal by Summer's Cafeine Pty Ltd against a decision by the Department to take action under section 140M of the *Migration Act 1958* (Cth). The Department's delegate had found that the applicant failed to satisfy a sponsorship obligation by not ensuring the sponsored person, Ms Wang, worked in her nominated occupation as a Café and Restaurant Manager on a full-time basis, and that the applicant had provided false or misleading information regarding Ms Wang's employment and the genuine need for the role. The appeal was heard by Bridget Cullen, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant had failed to satisfy its sponsorship obligation to ensure the sponsored person worked in her nominated occupation, and whether the applicant had provided false or misleading information to the Department. These issues arose from concerns that Ms Wang was not working full-time in her nominated role and that there was no genuine need for the position. The Tribunal was required to determine if the circumstances prescribed in regulations 2.89 and 2.90 of the Migration Regulations 1994 existed, which would empower the Minister, or the Tribunal on review, to take action under section 140M.

The Tribunal considered the evidence presented, including oral testimony from the applicant's director and the sponsored person, as well as documentary evidence such as payslips, bank statements, and employment contracts. The Tribunal found that Ms Wang was paid a full-time wage and that the applicant had provided evidence of her performing tasks consistent with the nominated occupation, including planning menus, arranging purchases, and organising events, some of which were performed offsite. The Tribunal accepted that the period of operation at Bellissimo Coffee presented challenges, including the impact of COVID-19 restrictions and difficulties integrating existing staff with new employees. Crucially, the Tribunal concluded that Ms Wang was working full-time and that the tasks performed offsite were plausible and consistent with the requirements of a Café and Restaurant Manager. Therefore, the Tribunal was not satisfied that the prescribed circumstances for taking action under section 140M existed.

Accordingly, 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*.