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

1. 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).

2. The visa applicants applied for the visa on 14 March 2017.

3. 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).  

4. 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

5. 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 Australia, Artoys Pty Ltd (Artoys).  Artoys imports, wholesales and distributes of a range of its own-brand children’s toys from China.  It also sells toys on-line.

6. In the delegate’s decision, a copy of which was provided to the Tribunal, the delegate acknowledges that the nature of Ms Dai’s business may require some overseas travel.  However, the delegate found that it did not alter the fact that Ms Dai was not in Australia for the required 365 days in the 2 years immediately before applying for her Subclass 890 visa on 14 March 2017 (that is, from 14 March 2015 to 13 March 2017) and, as a result, she did not satisfy cl.890.217 of Schedule 2 to the Regulations. Further, the delegate found that neither of the secondary applicants met the requisite criteria for grant of the visas.

   Invitation to attend a hearing

7. On 21 November 2018, the Tribunal invited the applicants to attend a hearing on 19 December 2018 to give evidence and present arguments relating to the issue arising in this case.  The applicants’ representative wrote to the Tribunal on 12 December 2018 to request a postponement of the hearing on the basis that, and according to the medical evidence provided, Ms Dai was in China and had sustained an ‘injury of the collateral ligaments at the outer side of the right knee’: it recommended ‘rest for 4 months’ and a ‘follow-up visit’.  The medical evidence provided by the representative was a letter from Lanxi Ruikang Hospital dated 7 December 2018.  The Tribunal notes there is no date or timeframe for the follow-up visit, and nor was any medication prescribed.  Further, the letter is not on letterhead and does not have an address, or any telephone or website contact details.  

8. Under s.362B(1) of the Act, the Tribunal has a discretion - confirmed by s.362B(2) of the Act - to reschedule an applicant’s appearance before it, or to delay its decision on the review, in order to enable their appearance to be rescheduled. Accordingly, the Tribunal considered whether it would be appropriate to exercise this discretion in the applicants’ favour having regard to the medical certificate before it in relation to Ms Dai. In doing so, the Tribunal had regard to the decisions in Kaur v Minister for Immigration & Anor[1], Singh v Minister for Immigration & Anor[2] and MZZGY v Minister for Immigration and Border Protection[3] where the Courts have held that a medical certificate which merely indicates an applicant is unfit for work for a period will not necessarily constitute a firm basis for a scheduled hearing to be postponed in all circumstances.

   [1] [2013] FCCA 1641 (16 September 2013) at [7] – [11]

   [2] [2014] FCCA 2537 (Simpson J, 14 October 2014)

   [3] (2014) FCA 488 at [7] – [11]

9. The evidence provided by the applicants' representative did not set out Ms Dai’s inability to participate in a hearing to give oral evidence before the Tribunal by way of teleconference from China. Further, for the reasons outlined above at para [7], the Tribunal had some concerns regarding the bona fides of the letter from Lanxi Hospital. Accordingly, pursuant to s.362B of the Act, on 13 December 2018 the Tribunal responded to the request for a postponement noting that the certificate does not make any reference as to why Ms Dai cannot participate in the hearing by way of a telephone call from China. Accordingly, the Tribunal informed the representative that the hearing will proceed on 19 December 2018 but that the later time of 2:30 pm (Sydney time) to accommodate Ms Dai being in China.

   Hearing

10. Ms Dai appeared before the Tribunal on 19 December 2018 by teleconference from China to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicants were represented in relation to the review by their registered migration agent, who also attended the Tribunal’s hearing by way of teleconference from Sydney. 

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. 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. 

14. 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.

15. 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. 

16. 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.

17. Having regard to the evidence before it, the Tribunal finds that prior to lodging her Subclass 890 visa application each of the applicants held a Subclass 163 visa, that is, one of the visas mentioned in para 1104B(3)(d) of Schedule 1 to the Regulations. Their Subclass 163 visas were granted on 14 March 2017. The Tribunal also finds that, as the holder of a Subclass 163 visa, Ms Dai spent only 271 days in Australia in the 2 years immediately before lodging her Subclass 890 visa application. In the circumstances, the Tribunal finds that, although Ms Dai held one of the visas mentioned in para 1104B(3)(d) of Schedule 1 to the Regulations in the 2 years immediately before her Subclass 890 visa application was made, she was not in Australia for a total of one year (that is, 365 days) in the 2 years immediately prior to his application.

18. For these reasons, the Tribunal finds that Ms Dai does not satisfy cl.890.217 of Schedule 2 to the Regulations.

19. 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

20. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

    Katie Malyon

    
    Member