ZYZ Investments Pty Ltd (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision made by the Department of Home Affairs regarding ZYZ Investments Pty Ltd's sponsorship obligations. The dispute arose from an alleged failure by ZYZ Investments to satisfy a sponsorship obligation, which led to the Department considering taking action under section 140M of the *Migration Act 1958* (Cth).

The Tribunal was required to determine whether the Department's decision to consider taking action under section 140M was justified. Specifically, the Tribunal had to assess the circumstances surrounding the alleged failure to meet sponsorship obligations, considering the criteria outlined in subregulation 2.89(3) of the *Migration Regulations 1994* (Cth). These criteria included the applicant's past and present conduct, the number and nature of any failures, the impact on others, whether the failure was intentional, reckless, or inadvertent, and the steps taken to rectify the failure and ensure future compliance.

The Tribunal's reasoning focused on the specific facts presented by ZYZ Investments, particularly the evidence of Mr. Song, a director of the company. The Tribunal found Mr. Song to be a credible witness, accepting his testimony regarding his inexperience in the role, the business's challenges due to the COVID-19 pandemic, and personal health issues affecting his ability to manage the company's obligations. The Tribunal also considered the nature of the failure, noting it was an unintentional, minor underpayment that had been refunded to the nominee. Having regard to the totality of these circumstances and the prescribed criteria, the Tribunal concluded that no action under section 140M should be taken.

Consequently, the Tribunal set aside the Department's decision under review and substituted a decision not to take one or more of the actions specified in section 140M of the *Migration Act 1958* (Cth).