Ali (Migration) - [2019] AATA 6739

Ali (Migration) [2019] AATA 6739 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT: Walid Mahmood Ali ALI
Bushra Oraibi Hameid AL SAMERAIE
Anas Waleed Mahmood MAHMOOD
Jumana Walid Mahmood MAHMOOD
Bilal Waleed Mahmood MAHMOOD
Ahmed Waleed Mahmood MAHMOOD

CASE NUMBER: 1706105
HOME AFFAIRS REFERENCE(S): BCC2015/2879517
BCC2015/3079551
BCC2016/3121312
BCC2016/3121417
BCC2016/3121527
BCC2016/3121619

MEMBER:Mr S Norman
DATE:9 December 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal has decided to remit the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:
·cl.892.211(1) of Schedule 2 to the Regulations
and:
·in relation to the secondary applicants, the appropriate course of action is to also remit their applications to the Department for reconsideration in light of the finding that the first named applicant now satisfies cl.892.211(1)

Statement made on 09 December 2019 at 10:42am

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) visa – continuous ownership interest of main business – business was actively operating at all relevant times – diverse range of business activities – design and development project postponed – trading goods from several other countries – some unprofitable business operations ceased – qualifying business – direct and continuous involvement in the management – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 134
Migration Regulations 1994, Schedule 2, cls 892.211, 892.221; rr 1.03, 1.11

CASES

Shahpari v Minister for Border Protection [2016] FCCA 513
Yang v Minister for Immigration and Border Protection [2014] FCCA 1576

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 March 2017 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.
The applicants applied for the visas on 21 September 2015. At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor). The applicants in this case are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.
The delegate in this case refused to grant the visas on the basis that the first named visa applicant (‘the applicant’) did not satisfy the requirements of cl.892.211(1) of Schedule 2 to the Regulations.
The first named applicant (the applicant) appeared before the Tribunal on 27 November 2019 to give evidence and present arguments. The applicant was represented in relation to the review.
For the following…

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: [2019] AATA 6739
Decision Date: 9 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (Cth) (the Tribunal) considered an application for review of a decision by the Minister for Immigration and Border Protection to refuse a Subclass 892 (State/Territory Business Owner) visa. The applicant, Mr Ali, sought to demonstrate that he had met the requirements for the visa, specifically concerning his continuous ownership interest in his main business and his direct and continuous involvement in its management.

The primary legal issues before the Tribunal were whether Mr Ali's main business was a "qualifying business" for the purposes of the visa, and whether he had maintained a direct and continuous involvement in its management throughout the relevant period. This involved determining whether the business was actively operating at all relevant times, despite a postponement of a design and development project, trading with diverse international suppliers, and the cessation of some unprofitable operations.

The Tribunal found that the business was a qualifying business. It reasoned that the postponement of the design and development project did not indicate a lack of active operation, particularly given the business's diverse trading activities with multiple countries. The cessation of unprofitable operations was also considered a normal aspect of business management rather than evidence of non-operation. The Tribunal concluded that Mr Ali had demonstrated direct and continuous involvement in the management of the business. Consequently, the Tribunal remitted the decision to the Minister for reconsideration.

Orders