Andradi (Migration) - [2020] AATA 472

Andradi (Migration) [2020] AATA 472 (14 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:
Mr D M A M Don Sisath Frank Lakshman Andradi

Miss Lashini Menushika Andradi

Mrs Kirindage Anusha Lourdes Ruwanthi Andradi
CASE NUMBER:  1720817
HOME AFFAIRS REFERENCE(S): BCC2016/2038186 BCC2016/2050214 BCC2016/2050255 BCC2017/2285502 BCC2017/3790342 BCC2017/3790349
MEMBER:Alison Mercer
DATE:14 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass (State/Territory Sponsored Business Owner) visa:
·cl. 892.211(1) of Schedule 2 to the Regulations.
Statement made on 14 January 2020 at 5:15pm

CATCHWORDS
MIGRATION – Business Skills (Residence)(Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – direct and continuous involvement in managing business for 2 years before application – continued management duties while overseas – lawfully and actively operating business – 70% ownership interest – qualifying business – business purpose to make profit through residential construction for public – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(10), 359(2)
Migration Regulations 199 (Cth), rr 1.03, 1.11, Schedule 2, cl 892.211

CASES
Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328
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 and Border Protection on 24 August 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 applicants applied for the visas on 10 June 2016. At the time of application, Class DF contained four subclasses: subclass 890 (Business Owner), subclass 891 (Investor), subclass 892 (State/Territory Business Owner) and subclass 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, which required that the applicant had had, and continued to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application was made. The delegate noted that ‘main business’ was defined in r.1.11 and required, amongst other things, that if a business was not publicly listed and had a turnover of less than AUD $400,000, then the applicant had to have an ownership interest of at least 51%.…

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: [2020] AATA 472
Decision Date: 14 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AHT) considered the application of Mr. Andradi for a Business Skills (Residence) (Class DF) visa, specifically the Subclass 892 (State/Territory Sponsored Business Owner) visa. The dispute concerned whether Mr. Andradi had met the requirement of direct and continuous involvement in managing a qualifying business for at least two years prior to his visa application. The Tribunal was tasked with reviewing the delegate's decision to refuse the visa.

The primary legal issue before the Tribunal was whether Mr. Andradi's business activities, particularly his management duties while overseas and the nature of his business, satisfied the criteria for the Subclass 892 visa. Specifically, the Tribunal had to determine if his involvement constituted "direct and continuous involvement in managing" the business, if the business was "lawfully and actively operating," and if it was a "qualifying business" with the purpose of making a profit.

The Tribunal found that Mr. Andradi held a 70% ownership interest in a business whose purpose was to make a profit through residential construction for the public. It was satisfied that the business was lawfully and actively operating. However, the Tribunal noted that the delegate had not adequately considered the evidence regarding Mr. Andradi's continued management duties while he was overseas, nor had the delegate fully assessed whether his involvement constituted direct and continuous management. Consequently, the Tribunal concluded that the delegate's decision was affected by an error of law and remitted the matter for reconsideration.

Orders