1606368 (Migration) - [2019] AATA 6685

1606368 (Migration) [2019] AATA 6685 (1 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1606368
MEMBER:Alison Mercer
DATE:1 November 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Class DF subclass 892 visas.
Statement made on 01 November 2019 at 11:08am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – net assets in nominated main business – funds held in an investment scheme – security for commercial lease to operate business – terms of related Deed – net business and personal assets – continual ownership interest in ‘main business’ – broad considerations – not restricted to form 1217 – evidence of import/export activities at time of visa application – active operation at time of Tribunal’s decision – unique or exceptional circumstances – unfair or unreasonable results – well settled in Australia – penalised for having made a commercial decision – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.11; Schedule 2, cls 892.212, 892.221
CASES
Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328
Rahbarinejad v Minister for Immigration and Border Protection [2018] FCCA 2293
Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513
Tung-Liang Liang v Minister for Immigration [2009] FCA 189
Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301
Yang v Minister for Immigration & Anor [2014] FCCA 1576
Zhu v Minister for Immigration and Border Protection [2016] FCCA 1874
Warnakula Weerasooriya (Migration) [2019] AATA 2500
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 April 2016 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) subclass 892 visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 26 June 2015. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not meet cl.892.212, which required that the applicant met 2 out of the 3 subparagraphs, (a), (b) and/or (c). The delegate found that the applicant’s main business in Australia was [Company 1] (trading as [Business 1]) and that the relevant period for consideration was 26 March 2014 to 26 March 2015. The delegate further found that the applicant did not claim to have employed full-time employees so could not meet cl.892.212(a) and therefore had to meet cl.892.212(b) and (c).
In relation to cl.892.212(c), the requirement that the applicant’s net assets in the business were at least $75,000 at the time of the visa application and in the 12 months period immediately before that, the delegate found that the applicant’s…

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.

Continue reading 1606368 (Migration)

Details

AGLC: 1606368 (Migration) [2019] AATA 6685
Case: [2019] AATA 6685
Decision Date: 1 November 2019

CaseChat Overview and Summary

This matter concerned an application for a Business Skills (Residence) (Class DF) visa, subclass 892 (State/Territory Sponsored Business Owner), by a family of four. The primary dispute revolved around whether the applicant met the requirements of clause 892.212 of the Migration Regulations 1994, which sets out criteria for net business and personal assets, and net assets in the nominated main business. The Administrative Appeals Tribunal was required to determine if the applicant had satisfied at least two of the three specified requirements under this clause.

The Tribunal considered whether the applicant met the criteria relating to providing employment to Australian citizens or permanent residents, the net value of business and personal assets in Australia, and the net value of assets owned in the main business. Specifically, the delegate had found that the applicant did not meet the employment requirement, nor the requirement for net assets in the main business, as approximately $50,000 held in a lawyer's trust account was not accepted as an asset of the main business, resulting in a net value below the $75,000 threshold. Consequently, the applicant was deemed not to have met two of the three requirements of clause 892.212.

Despite affirming the delegate's decision not to grant the visas, the Tribunal noted that the applicants were experienced business people with professionally employed daughters in regional Australia, who had been resident in Australia since 2012. The Tribunal also acknowledged the applicant's successful operation of a business and efforts to identify export opportunities. Considering these factors, and the argument that the applicant might be penalised for a commercial decision to cease a declining business and explore new ventures, the Tribunal concluded that the outcome could be considered unfair or unreasonable. Therefore, the Tribunal referred the case to the Department for consideration by the Minister under section 351 of the Migration Act 1958.

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 decisions under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The original issue in the present case was whether the applicant meets cl.892.212, which provides as follows:892.212Unless the appropriate regional authority has determined that there are exceptional circumstances, the applicant meets at least 2 of the following requirements:(a) in the period of 12 months ending immediately before the application is made, the main business in Australia, or main businesses in Australia, of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:(i) provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 1 full-time employee over that period of 12 months; and(ii) provided those hours of employment to an employee, or employees, who:(A) were not the applicant or a member of the family unit of the applicant; and(B) were Australian citizens, Australian permanent residents or New Zealand passport holders;(b) the business and personal assets in Australia of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:(i) have a net value of at least AUD250 000; and(ii) had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the application is made; and(iii) have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together;(c) the assets owned by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main businesses in Australia:(i) have a net value of at least AUD75 000; and(ii) had a net value of at least AUD75 000 throughout the period of 12 months ending immediately before the application is made; and(iii) have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together. There is no evidence before the Tribunal that the appropriate regional authority has determined that there are exceptional circumstances in this case. As noted above, the delegate found that cl.892.212 was not met because:·the applicant did not claim to meet cl.892.212(a)(i) (at least 1 full time Australian employee at the time of application and in the preceding 12 months);·the applicant’s net assets in her nominated main business were less than $75,000 in the 12 months immediately preceding the visa application (the delegate assessed them as $53,334 as at 31 March 2014, as she did not accept that approximately $50,000 held in a lawyer’s trust account was an asset of the main business) and the applicant therefore did not meet cl.892.212(c); and·therefore, the applicant did not meet 2 out of the 3 requirements in cl.892.212.

Decision

Reasons for decision

The Tribunal has considered the applicants’ circumstances in this case, and notes that the first and second applicants are experienced business people, while their daughters (the third and fourth named applicants) are both qualified professionals as a result of their secondary and tertiary education in Australia. The Tribunal notes that the third and fourth named applicants are both employed by Australian employers in [City 1] (classified as ‘regional Australia’ for the purposes of most Australian skilled and business visas). Their documentary and oral evidence indicates that they have been largely resident in Australia since 2012. Moreover, the Tribunal gives weight to their oral evidence, supported by documentary evidence, that the applicant successfully ran the [Business 1] in [City 1] from 2012 to 2016, and has put considerable research into identifying suitable [Australian State 1] products for export overseas. Given the available evidence indicates that the family has bought residential property in Australia and that they are well settled and the third and fourth named applicants are professionally employed in Australia, the Tribunal regards the outcome in this case as falling within the Ministerial guideline relating to cases in which the application of relevant legislation leads to unfair or unreasonable results in a particular applicant’s case. This is particularly so since it can be argued that the applicant is in some ways being penalised by the terms of cl.892.221 for having made a commercial decision to cease operating the [Business 1] due to its declining profitability and to explore new business activities that may in future be of benefit to Australia, even though they are currently fledging. The Tribunal therefore refers their case to the Department to be brought to the Minister’s attention for consideration pursuant to s.351. DECISION The Tribunal affirms the decision not to grant the applicants Class DF subclass 892 visas.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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