1504781 (Migration) - [2016] AATA 3125

1504781 (Migration) [2016] AATA 3125 (21 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Zekun Li
Ms Jian Chen
Mr Mingjun Li
CASE NUMBER:  1504781
DIBP REFERENCE(S):  CLF2008/166396 CLF2009/104926 CLF2009/105011 CLF2009/18222 CLF2009/282 CLF2015/14545 CLF2015/23145
MEMBER:Kate Millar
DATE:21 January 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets:
·cl.892.221 of Schedule 2 to the Regulations.

Statement made on 21 January 2016 at 8:56am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Li operates an import/export business, Kun Jian Pty Ltd (Kun Jian), and he and his wife Ms Chen are directors of Kun Jian. Mr Li, Ms Chen and their son Mr Mingjun Li applied for Business Skills (Residence) (Class DF) Subclass 892 visas on 10 August 2009.
This is the second time Mr Li, Ms Chen and Mingjun have had this same visa application refused. Their visa applications were first refused because a delegate of the Minister for Immigration and Border Protection was not satisfied that at the time of the visa application Mr Li had an ownership interest in one or more actively operating main businesses in Australia for at least two years before the application as made. The definition of main business includes a requirement that, broadly speaking, the person is involved in the day to day management of the business, and the delegate was not satisfied Mr Li had this involvement. Mr Li applied to the Migration Review Tribunal for a review of this decision, and the Migration Review Tribunal (as it then was and differently constituted) remitted the matter for reconsideration in accordance with the direction that Mr Li met cl.892.211 of Schedule 2 of the Migration Regulations 1994 (the Regulations).
In reconsidering the application for the visa on 27 March 2015, a delegate of the Minister again refused the visa application, finding that Mr Li did not meet the requirements of cl.892.221, in particular the requirement that the business continued to be actively operating at the time of the decision and the requirement that that Mr Li and Ms Chen continued to have assets with a net value of at least AUD250,000. As a result, the delegate refused the applications for the visas under s.65 of the Migration Act 1958 (the Act).
Mr Li, Ms Chen and Minjun applied for a review of the decision.
Mr Li appeared before the tribunal on 11 November 2015 to give evidence and present arguments, and was represented by his registered migration agent. The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION
The Business Skills (Residence) (Class BS) visa is a visa for successful business people and provides Australian permanent residence. The criteria for the grant of this visa are set out in Part 892 of Schedule 2…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 3125
Decision Date: 21 January 2016

CaseChat Overview and Summary

The decision under review involves the applications for Business Skills (Residence) (Class DF) visas for Mr Li, Ms Chen, and Mingjen. The matter was heard and determined by the Migration Review Tribunal. The primary issue before the Tribunal was whether the applicants met the secondary criteria for the visa, specifically cl.892.221 of Schedule 2 to the Regulations. The Tribunal found that Mr Li met the primary criteria and recommended that the matter be remitted for further consideration of whether Ms Chen and Mingjen meet the secondary criteria.

The Tribunal considered the criteria for the grant of the Business Skills (Residence) (Class BS) visa, which includes both primary and secondary criteria. The primary criteria must be met at the time of the application, while the secondary criteria must be met at the time of the decision. The Tribunal examined whether Mr Li continued to satisfy cl.892.221, which requires the applicant to maintain an ownership interest in one or more businesses, ensure the businesses are actively operating, and that the value of the ownership interest of the applicant and their spouse is at least 10% of the business. The Tribunal determined that Mr Li met these requirements at the time of the decision.

The Tribunal found that Mr Li's business, Kun Jian, continued to actively operate and was a qualifying business as defined in r.1.03. The term “actively operating” was interpreted to mean the business was engaged in activities as a commercial enterprise in the nature of an ongoing concern. The Tribunal found that Mr Li's business met these requirements and that there was no dispute about his continued ownership interest in the business.

The Tribunal concluded that Mr Li met the primary criteria for the visa and recommended that the matter be remitted for further consideration of whether Ms Chen and Mingjen met the secondary criteria. The Tribunal's decision was based on the evidence presented and its interpretation of the relevant legislation and regulations. The matter was remitted to the Minister for further consideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As Mr Li may meet the primary criteria, it is also appropriate to remit Ms Chen and Mingjen’s visa applications to the Minister for further consideration of whether they meet the secondary criteria for the visa.DECISION The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets:· cl.892.221 of Schedule 2 to the Regulations.Kate MillarMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION The Business Skills (Residence) (Class BS) visa is a visa for successful business people and provides Australian permanent residence. The criteria for the grant of this visa are set out in Part 892 of Schedule 2 of the Regulations, and at least one applicant must meet the primary criteria. There are criteria that must be met at the time of the application, and criteria that must be met at the time of this decision. The criteria in issue before me relate are those that must be met at the time of this decision. Clause 892.221 requires that the applicant continues to satisfy the criteria in cl.892.211 and cl.892.214 and that if the applicant met the requirements of paragraph 892.212(b), continues to meet those requirements. I have considered each of cl.892.211, 892.214 and 892.212(b) in turn, keeping in mind that the time I am considering is the time of this decision. This clause requires the applicant to continue to meet the requirement that:· The applicant has an ownership interest in one or more businesses· The business or businesses are actively operating.· The businesses meet the definition of main business in r.1.11. This in turn requires that:o The applicant has an ownership interest in the businesso The applicant maintains 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;o The value of the ownership interest of the applicant and his or her spouse is at least 10% of the business; ando The business is a qualifying business as defined in r.1.03. This requires that it is operated for the purpose of making a profit through the provision of goods, service or goods and services (other than the provision of rental property) to the public and it is not operated primarily or substantially for the purpose of speculative or passive investment. · For each business an Australian Business Number has been obtained; and· All Business Activity Statements (BAS) required by the Australian Taxation Office (ATO) have been submitted to the ATO. The previous decision of the Migration Review Tribunal found this criterion was met at the time of the visa application. Kun Jian continues to have an Australian Business Number and Mr Li provided BAS to the end of the most recent quarter after the hearing. There is no dispute that Mr Li continues to have an ownership interest in Kun Jian of over 10% of the business. He is the director and the person who runs the business. I find that these elements of cl.892.211 and the definition of main business are met at the time of this decision. The elements in 892.211 that that are in issue at the time of this decision issue are whether the business continues to actively operate and whether it continues to be a qualifying business. Is the business actively operating? The term “actively operating” is not defined in the legislation. Mr Li’s representative submits this is the same as “carrying on” a business, meaning repetition and activities undertaken as a commercial enterprise in the nature of an ongoing concern, and cites the High Court in Hope v Bathurst City Council (1980) 144 CLR 1.