1410112 (Migration)

Case [2015] AATA 3040

1410112 (Migration) [2015] AATA 3040 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Durairaj Paul Thiraviam
Mrs Florence S Thuraisingam
Miss Sheida Durairaj
Master Danush Durairaj

CASE NUMBER:  1410112

DIBP REFERENCE(S):  CLF2014/17077

MEMBER:Filip Gelev

DATE:1 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review not to grant the applicants Business Skills (Residence) (Class DF) Subclass 892 visas

Statement made on 01 July 2015 at 4:15pm

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 4 June 2014 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958 (the Act).

  2. The visa applicant applied for the visa on 4 February 2014. The delegate refused to grant the visa on the basis that cl. 892.211 was not met, because the applicant had not demonstrated an ownership interest in one or more actively operating businesses in Australia for at least two years immediately before the application was made.

  3. The applicants appeared before the Tribunal on 24 February 2015 to give evidence and present arguments.

  4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

  5. The issues in the present case are whether the applicants satisfy the time of application criterion in cl. 892.211 and the time of decision criterion in cl. 892.221. Clause 892.211 requires that the applicant has had, and continues to have, an ownership interest in 1 or more actively operating main business in Australia for at least 2 years immediately before the application is made. Clause 892.221 requires that the applicant continues to have, an ownership interest in 1 or more actively operating main business in Australia at the time of decision.

  6. In this case, on the material before it, the Tribunal considers that it is open to it to make findings in respect of the first named visa applicant’s ability to meet the time of decision criteria in cl.892.221, even though this issue was not considered by the delegate.

  7. The Tribunal is empowered to determine an application by reference to a specified criterion which has not been addressed by the primary decision maker.  If the Tribunal is not satisfied that a criterion is met, and it is a necessary prerequisite for the grant of a visa, then the Tribunal will sufficiently exercise its jurisdiction by affirming the delegate’s decision on that basis: Hui v Minister for Immigration and Citizenship [2011] FMCA 486; Jin v Minister for Immigration and Citizenship [2009] FMCA 540.

  8. The Tribunal finds that the applicant does not satisfy either cl. 892.211, nor cl. 892.221.

    892.211

  9. The delegate refused the visa application on the basis that the applicant did not satisfy clause 892.211 of Schedule 2 to the Regulations at the time of application. Clause 892.211 provides:

    892.211

    (1)     The applicant has…

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AGLC
1410112 (Migration) [2015] AATA 3040
Case
[2015] AATA 3040
Decision Date

CaseChat Overview and Summary

In the matter of 1410112 (Migration), the Tribunal was tasked with reviewing a decision by a delegate of the Minister for Immigration and Citizenship, who had refused to grant a Business Skills (Residence) (Class DF) Subclass 892 visa to the applicants. The primary issue before the Tribunal was whether the applicants met the time of application and time of decision criteria stipulated in clauses 892.211 and 892.221 of the Migration Regulations. Clause 892.211 requires the applicant to have had, and to continue having, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application, while clause 892.221 requires the applicant to maintain such an interest at the time of decision.

The Tribunal determined that it was within its jurisdiction to consider the time of decision criteria, even though the delegate had not addressed it. The Tribunal reasoned that if it found that a necessary criterion for the grant of a visa was not met, it could affirm the delegate’s decision on that basis. The Tribunal found that the applicants did not satisfy either clause 892.211 or clause 892.221, as they did not have the required ongoing ownership interest in a main business in Australia for the requisite period. Consequently, the Tribunal concluded that the applicants did not meet the necessary criteria for the Subclass 892 visa.

Given that the applicants only sought the Subclass 892 visa and did not make claims for other visas, the Tribunal affirmed the delegate’s decision not to grant the applicants the Business Skills (Residence) (Class DF) Subclass 892 visas. The Tribunal's decision was based on the applicants' failure to meet the stipulated criteria for the visa in question.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in the present case are whether the applicants satisfy the time of application criterion in cl. 892.211 and the time of decision criterion in cl. 892.221. Clause 892.211 requires that the applicant has had, and continues to have, an ownership interest in 1 or more actively operating main business in Australia for at least 2 years immediately before the application is made. Clause 892.221 requires that the applicant continues to have, an ownership interest in 1 or more actively operating main business in Australia at the time of decision. In this case, on the material before it, the Tribunal considers that it is open to it to make findings in respect of the first named visa applicant’s ability to meet the time of decision criteria in cl.892.221, even though this issue was not considered by the delegate. The Tribunal is empowered to determine an application by reference to a specified criterion which has not been addressed by the primary decision maker. If the Tribunal is not satisfied that a criterion is met, and it is a necessary prerequisite for the grant of a visa, then the Tribunal will sufficiently exercise its jurisdiction by affirming the delegate’s decision on that basis: Hui v Minister for Immigration and Citizenship [2011] FMCA 486; Jin v Minister for Immigration and Citizenship [2009] FMCA 540. The Tribunal finds that the applicant does not satisfy either cl. 892.211, nor cl. 892.221.892.211 The delegate refused the visa application on the basis that the applicant did not satisfy clause 892.211 of Schedule 2 to the Regulations at the time of application. Clause 892.211 provides:892.211(1) The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made. Regulation 1.03 defines provides that ‘ownership interest’ has the meaning given to it in subsection 134(10) of the Act, which states:‘ownership interest’in relation to a business, means an interest in the business as:(a) a shareholder in a company that carries on the business; or(b) a partner in a partnership that carries on the business; or(c) the sole proprietor of the business;including such an interest held indirectly through one or more interposed companies, partnerships or trusts; Regulation 1.03 also provides that ‘main business’ is defined in regulation 1.11 as follows:(1) For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:(a)the applicant has, or has had, an ownership interest in the business; and(b) the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; …(2) If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.

Decision

Reasons for decision

The applicant has only sought to satisfy the criteria for a Subclass 892 visa. No claims have been made in respect of the other visas (subclass 890, 891, or 893) in Class DF. As the applicant has not met the criteria for a Subclass 892 visa, the decision under review must be affirmed.DECISION The Tribunal affirms the decision under review not to grant the applicants Business Skills (Residence) (Class DF) Subclass 892 visas.Filip GelevMember

Ratio Decidendi

Legal Principle Established

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