DAI (Migration) - [2019] AATA 1027

DAI (Migration) [2019] AATA 1027 (18 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Aijin DAI
Mr Gang CHENG
Ms Jiayi CHENG
CASE NUMBER:  1822470
DIBP REFERENCE(S):  BCC2017/1082037
MEMBER:Katie Malyon
DATE:18 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Statement made on 18 January 2019 at 5:23 pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 – applicant was not in Australia for the required 365 days in the 2 years immediately before applying for 890 visa - Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362
Migration Regulations 1994, Schedule 2, cl 890.217, 890.321, Schedule 1
CASES
MZZGY v Minister for Immigration and Border Protection (2014) FCA 488
Kaur v Minister for Immigration & Anor [2013] FCCA 1641
Singh v Minister for Immigration & Anor [2014] FCCA 2537
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 16 July 2018 to refuse to grant the visa applicants a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 14 March 2017.
The delegate refused to grant the visas on the basis that cl.890.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met. This clause requires that the primary visa applicant, Chinese national Ms Aijin Dai, has been in Australia as the holder of one of the visas mentioned in para 1104B(3)(d) of Schedule 1 to the Regulations for a total of one year (that is, 365 days) in the 2 years immediately before the application was made. Included in the list of 6 visas mentioned in para 1104B(3)(d) of Schedule 1 to the Regulations is the Subclass 163 State/Territory Sponsored Business Owner (Provisional) visa (Subclass 163 visa).
Relying on Departmental movement records, the delegate found that Ms Dai was in Australia for a total of 271 days in the relevant 2 year period and, therefore, she failed to satisfy cl.890.217 of Schedule 2 to the Regulations. The remaining visa applicants are members of Ms Dai’s family and their visas were refused as a consequence of her failure to meet the primary criteria. A copy of the delegate’s decision was provided to the Tribunal.
Background
On 13 June 2018, the Department wrote to the applicants to inform Ms Dai that, based on her movement records, she did not meet cl.890.217 of Schedule 2 to the Regulations. She was invited to provide any information or comments on the delegate’s preliminary view that requisite criteria had not been met. The applicants’ representative provided a response on their behalf on 10 July 2018 and merely advised that Ms Dai’s travel overseas was necessary due to the nature of her main business in…

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 DAI (Migration)

Details

AGLC: DAI (Migration) [2019] AATA 1027
Case: [2019] AATA 1027
Decision Date: 18 January 2019

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 890 Business Skills (Residence) visa application. The applicant, Ms. Dai, sought to have a decision affirmed that she did not meet the visa requirements. The Tribunal was tasked with determining whether Ms. Dai, and by extension her husband and daughter who were secondary applicants, satisfied the criteria for the visa.

The central legal issue was whether Ms. Dai met the residency requirement stipulated in clause 890.217 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an applicant must have been in Australia for at least 365 days in the two years immediately preceding their visa application, while holding one of the specified visas. The Tribunal also considered whether the secondary applicants, Mr. Cheng and Ms. Cheng, met the family unit criteria, which depended on Ms. Dai satisfying the primary criteria.

The Tribunal's reasoning focused on a strict interpretation of the legislative requirement. It calculated Ms. Dai's presence in Australia during the relevant two-year period (14 March 2015 to 13 March 2017) to be 271 days, falling short of the required 365 days. Despite Ms. Dai's submissions about her overall time in Australia and her daughter's presence, the Tribunal emphasised that the legislation specifically targets the two years immediately before the application and that it had no discretion to waive this requirement on compassionate or compelling grounds. The Tribunal also found that neither Mr. Cheng nor Ms. Cheng met the primary criteria, as Mr. Cheng had only been in Australia for 86 days in the relevant period, and Ms. Cheng, while present for the requisite time, did not hold shares in the business and could not have maintained the required direct and continuous involvement in its management due to her age.

Consequently, the Tribunal affirmed the decision not to grant the Subclass 890 visas to Ms. Dai, Mr. Cheng, and Ms. Cheng, as they failed to meet the essential primary and secondary criteria for the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 issue in the present case is whether the applicant meets the requirements in cl.890.217 of Schedule 2 to the Regulations. In order to satisfy this clause, the applicant must have been in Australia as the holder of one of the visas mentioned in para 1104B(3)(d) of Schedule 1 to the Regulations for a total of at least one year (365 days) in the 2 years immediately before the application was made. Having reviewed Ms Dai’s movement records in the 2 years immediately before her Subclass 890 visa application was made on 14 March 2017 (that is, from 14 March 2015 to 13 March 2017), the Tribunal calculates that she has spent 271 days in Australia in the relevant period. At the hearing, the Tribunal outlined the law for Ms Dai. She said that she had been in Australia in 2014 and 2015, as well as in 2016 and 2017 leading up to lodgement of her application. The Tribunal acknowledged that Ms Dai has been in and out of Australia on a number of occasions as confirmed by her movement records but that, consistent with the legislation, the Tribunal must focus on the 2 years immediately before she made her Subclass 890 visa application on 14 March 2017. She thanked the Tribunal for its clear explanation and said that her previous registered migration agent did not explain this to her when assisting with her Subclass 163 visa application. As explained to Ms Dai in the hearing, despite her representative providing extensive evidence of the business operations of Artoys in Australia and manufacture of its toys in China, the Tribunal has no discretion in this matter and must make a decision in accordance with the law. Ms Dai expressed concern that her daughter’s residence in Australia was also at risk. The Tribunal acknowledged Ms Dai’s comment and observed that she would need to seek advice from her current registered migration agent in relation to visa options for her and her family moving forwards. The representative noted that he had explained to Ms Dai the fact that Tribunal has no discretion and that the legislation does not recognise compassionate and compelling reasons for waiver of the residence requirement prior to lodgement of the Subclass 890 visa application. The Tribunal also discussed with Ms Dai during the hearing whether either of the secondary applicants may meet visa criteria. The Tribunal noted that, based on evidence provided, Ms Dai’s husband - the second named applicant Mr Gang Cheng - holds 20% of shares in Artoys but that the Department’s movement records confirm that he has been in Australia in the relevant period for only 86 days. Ms Dai agreed. The Tribunal also observed that although her 15 year old daughter - the third named applicant Ms Jiayi Cheng - has been in Australia for the requisite period, available evidence indicates that Ms Cheng does not hold any shares in Artoys (Ms Dai holds the remaining 80% of shares in the company) and, further, given her age, her daughter could not have maintained a direct and continuous involvement in the management of the business affecting its overall operations. Ms Dai concurred with the Tribunal’s observations.

Decision

Reasons for decision

As Ms Dai does not satisfy the primary criteria for the grant of a Subclass 890 visa, her husband Mr Cheng and daughter Ms Cheng, do not satisfy the secondary criteria for the grant of the visa, in particular, cl.890.321 of Schedule 2 to the Regulations which requires that an applicant is a member of the family unit of a person who satisfies the primary criteria. For the reasons outlined above, there is no evidence before the Tribunal to indicate that either Mr Cheng or Ms Cheng meet the primary criteria for the grant of the visa. Therefore, the decision to refuse their applications for a Subclass 890 visa must also be affirmed. DECISION The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.Katie MalyonMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.