1407462 (Migration)

[2016] AATA 3234

1407462 (Migration) [2016] AATA 3234 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Dan Li
Mr Songyang Chen
Mr Xianyin Chen

CASE NUMBER:  1407462

DIBP REFERENCE(S):  CLF2013/181922 CLF2013/182863 CLF2013/182864 CLF2014/69348

MEMBER:Rania Skaros

DATE:8 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first and third named applicants Business Skills (Residence) (Class DF) visas.

The Tribunal does not have jurisdiction to review the decision in relation to the second named applicant.

Statement made on 08 February 2016 at 3:19pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 February 2014 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 2 August 2013. The first named applicant (the applicant) indicated that the main business, in which she has 100% interest, is Xindong International Pty Ltd. It was noted that the business is involved in Image Consultancy Services and retail of flooring products.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.890.211 of Schedule 2 to the Regulations as the delegate was not satisfied that the applicant had demonstrated that the company actively operated a business for two years immediately before the application was made.

4. The applicant appeared before the Tribunal on 4 February 2015 by telephone from China to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The migration agent did not attend the hearing.

   Jurisdiction in relation to the second named applicant

6. Information before the Tribunal indicated that the second named applicant was not in Australia at the time of visa application and at the time of the delegate’s decision. In the circumstances, the Tribunal does not have jurisdiction in respect of the second named applicant. The Tribunal explained this to the applicant at the hearing.     

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed in respect of the first and third named applicants. The Tribunal does not have jurisdiction in relation to the second named applicant.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements in cl.890.221.

   Evidence before the Tribunal

9. On 5 November 2015 the Tribunal wrote to the applicant inviting her to provide information to demonstrate that she met the requirements of cl.890.211 at the time of application and that she continues to meet that requirement as at the time of decision as required by cl.890.221.

10. On 18 November 2015 the Tribunal received a submission from the applicant’s representative advising that the applicant established Xindong International Pty Ltd in 2009 and submitted that she had been involved in the management of the business for the two years before the date of application. Documents regarding the applicant’s business activities in 2011 were provided. The submissions suggested that the applicant was operating a giftware and flooring business from 2012 until now and that further evidence regarding this would be provided. No further evidence was received from the applicant despite the Tribunal’s continued follow up with the representative. On 21 December 2015 the Tribunal wrote to the applicant requesting her to provide current documents regarding the main business, including current financial reports, business activity statements for the last 12 months, business bank account statements, current ASIC and current lease for the business’ premises.

11. On 13 January 2015 the Tribunal received a number of documents, including a letter of support, invoices and bank statement dated between 2011 and 2012. The Tribunal also received a statement from the applicant detailing her employment experience, history of her business activities in Australia and other personal information. Relevantly, she stated that the business ceased operation in April 2014. The representative submitted that the applicant meets the requirements for the grant of the Subclass 890 visa as she had managed the business for a period of two years before the date of the visa application.

12. At the hearing the Tribunal discussed with the applicant the reason for why her application was refused and also explained to her that she is also required to meet the time of decision criteria in cl.890.221. The Tribunal explained to the applicant that it had written to the representative requesting evidence of the business’ current operations, it received advice, including a statement from her that the business had ceased operating. The applicant stated that the business ended its operations in April 2014. The Tribunal explained that to meet the time of decision criteria for the grant of the visa the business has to be actively operating. It noted that on the basis of her evidence it appears that she does not meet the requirement in cl.890.221 at time of decision. The applicant stated that on her understanding the requirement is that she has to be operating a business for two years and she has been operating a business for more than two years. The Tribunal explained that on its reading of the regulations, at the time of decision, the main business must be actively operating. The applicant indicated she understood. The applicant asked if she can provide information to address the delegate’s concerns about her not operating a business in the two years before the date of application. The Tribunal noted that her representative had already provided information about her business activities for the period before the date of application but that in light of the evidence that the business has ceased operation, it did not consider information about the operations of the business prior to the date of application would assist her with the requirement in cl.890.221. The applicant stated that she has been residing in Australia for 10 years and has operated a business for more than two years and hoped she could have the opportunity to reside in Australia.

    Consideration of the evidence

13. The issue in the present case turned on whether the applicant meets the requirements in cl.890.221, which requires the applicant to continue to meet cl.890.211.

14. At the time the visa application was lodged, the Business Skills (Residence) Class DF visa contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Sponsored Business Owner) and Subclass 893 (State/Territory Sponsored Investor). The applicants have only made claims in relation to Subclass 890.

15. The criteria for a Subclass 890 visa are set out in Part 890 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria.

16. Clause 890.211(1) requires that the applicant has had, and continues to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application is made. The term ownership interest is defined in r.1.03 and the term main business is defined in r.1.11.

17. At the time of application, the applicant provided evidence of her ownership interest in Xindong International Pty Ltd. Information was provided indicating that the business was involved in various activities, including image consultancy and later as a flooring business. The applicant contended that the main business, in which she had an ownership interest, had been actively operating for at least two years before the date of application.

18. Of relevance in this case however, is the time of decision requirement in cl.890.221, which requires the applicant to continue to satisfy the primary criteria in cl.890.211. The Tribunal considers that even if it accepts that the applicant met the cl.890.211 at the time of application, it is not satisfied that she meets the time of decision requirement in cl.890.221 which, in the Tribunal’s view, requires the applicant to continue to have an ownership interest in an ‘actively operating’ main business.

19. The evidence before the Tribunal indicates that the business ceased operating in April 2014. As there is no longer an actively operating business, the Tribunal finds that, at the time of this decision, the applicant does not continue to have an ownership interest in 1 or more actively operating main businesses. The applicant therefore does not continue to meet cl.890.211 and consequently does not meet the requirements of cl.890.221.

20. Given the above, the Tribunal finds that cl.890.221 is not met.

21. There is also no evidence before the Tribunal to indicate that any of the secondary applicants meet the primary requirements for the grant of the visa.

22. The applicants have only sought to satisfy the criteria for a Subclass 890 visa. No claims have been made, and there is no evidence to suggest, that the applicant meets the requirements for any of the other visa subclasses in Class DF. The Tribunal accordingly finds that the applicants do not meet the criteria for any Class DF visa.

23. Given the above, the Tribunal affirms the decision under review in respect of the first and third named applicants.

    DECISION

24. The Tribunal affirms the decision not to grant the first and third named applicants Business Skills (Residence) (Class DF) visas.

25. The Tribunal does not have jurisdiction to review the decision in relation to the second named applicant.

    Rania Skaros
    Member