He (Migration) - [2019] AATA 5065

He (Migration) [2019] AATA 5065 (28 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Wenjing He
Mr Haoheng Li
Miss Lok lo Li
Miss Letong Li
CASE NUMBER:  1804585
DIBP REFERENCE(S):  BCC2016/603288 BCC2017/1523163 BCC2018/1319039
MEMBER:Karen McNamara
DATE:28 October 2019
PLACE OF DECISION:  Sydney
DECISION:
The Tribunal remits 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 890 (Business Owner) visa:
·cl.890.211 of Schedule 2 to the Regulations.

Statement made on 28 October 2019 at 12:36pm

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(10)
Migration Regulations 1994 (Cth), Schedule 2 cls 890.211, 890.221, rr 1.03, 1.11

CASES
Lobo v MIMA [2002] FCAFC168

Shahpari v Minister for Border Protection [2016] FCCA 513

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 5 February 2018 to refuse to grant the applicants a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 10 February 2016. The delegate refused to grant the visas on the basis that the first named applicant Ms Wenjing He (the applicant),did not satisfy the requirements of cl.890.211 of Schedule 2 to the Migration Regulations (the Regulations) because the delegate was not satisfied that the applicant had satisfactorily demonstrated her continuous involvement in managing the business from day-to-day or significant involvement in decision-making affecting the overall direction and performance of the business as required by 1.11(1)(b) of the definition of main business.
The applicants applied for review of that decision and a copy of the delegate's decision record was provided to the Tribunal.
Ms Wenjing He appeared before the Tribunal on 10 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the second named applicant Mr Haoheng Li. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
Whilst the Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUE
The issue in the present case is whether the applicant meets the time of decision requirements in cl. 890.221 which requires the applicant to continue to satisfy the criteria in cl.890.211 by having an ‘ownership interest’ in one or more actively operating ‘main businesses’ in Australia.
RELEVANT LAW
At the time the visa application was lodged, the Business Skills (Residence) Class DF visa contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business…

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 5065
Decision Date: 28 October 2019

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse a Subclass 890 (Business Owner) visa. The applicant, who claimed a 50% ownership interest in T & Y Capital Holdings Pty Ltd, was found by the delegate not to have maintained direct and continuous involvement in the management and decision-making activities of the nominated business. The delegate concluded that the business did not meet the definition of a "main business" under Regulation 1.11 of the Migration Regulations 1994, and consequently, the applicant did not meet the visa requirements.

The primary legal issue before the Tribunal was whether the applicant had maintained direct and continuous involvement in the management of the business from day to day and in making decisions affecting its overall direction and performance, as required by Regulation 1.11(1)(b). This involved assessing whether the nominated business qualified as a "main business" under the Regulations, which defines such an enterprise as one operated for profit, other than for speculative or passive investment.

The Tribunal considered the applicant's evidence regarding the business's operations, which initially involved labour hire services and later diversified into business and accounting consultancy. The Tribunal acknowledged that the applicant had an ownership interest and, drawing on the principles from *Lobo v MIMA* [2002] FCAFC 168, determined that direct and continuous involvement could manifest in various ways depending on the specific business. The Tribunal was satisfied, based on the written and oral evidence, that the applicant had been actively involved in collecting outstanding accounts, establishing new service processes, and making key decisions regarding the business's direction, thereby meeting the requirements of Regulation 1.11(1)(b).

Consequently, the Tribunal found that the applicant had maintained direct and continuous involvement in the nominated business and that the business met the definition of a main business. The delegate's decision was set aside, and the matter was remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The term qualifying business is defined in r.1.03 of the Regulations as an enterprise that:(a) is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and(b)is not operated primarily or substantially for the purpose of speculative or passive investment.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant applied for the Subclass 890 visa on the basis of claims related to one nominated main business, T & Y Capital Holdings Pty Ltd (the main business). The applicant provided evidence of a 50% ownership interest in the main business. The applicant claimed to have registered the business “on or about 15 January 2013 ”. ASIC records confirm that the business was registered on 15 January 2013. The applicant claimed that she held 50% shares and her husband Mr Haoheng Li held 50% and that she is responsible for operating the business. The applicant states that the business became active in the beginning of October 2013 when she entered into a verbal agreement with a company (Winteam Pty Ltd) to supply labour hire to Hans Smallgoods in Queensland. This agreement was terminated in December 2014 and the applicant then secured a verbal agreement with another business (Mitchelle Star Trading Pty Ltd) to supply labour hire to Hans Smallgoods Queensland. In January 2015 the applicant expanded the supply of labour hire to Primo in South Australia. On 30 June 2015 the applicant’s subcontractor contracts were terminated and the applicant diversified the business operations to the provision of business and accounting consultancy services. The applicant claims that during the transition period she remained actively involved in the business through accounts receivable collections and management of the new services. During the transition stage the applicant leased commercial offices in Eastwood NSW and commenced operating from these premises on 30 November 2015. The delegate noted that whilst the applicant claimed to supply labour hire to Winteam Pty Ltd and Mitchelle Star Trading Pty Ltd no documentary evidence had been supplied to support this claim. Similarly in regard to the applicant’s claims that the business diversified in July 2015 to provide business and accounting consultancy service, no evidence was provided to support this claim. The delegate noted in their decision “Based on the information provided I am not satisfied that the applicant maintained direct and continuous involvement in the management and decision making activities of T&Y Capital Holdings Pty Ltd. Consequently the nominated business does not meet the definition of a main business under Regulation 1.11 at the time of decision. As the nominated business does not meet the definition of main business at the time of decision, the applicant therefore does not meet clause 890.221 because she does not continue to meet the requirements of clause 890.211”.

Decision

Reasons for decision

Accordingly, the Tribunal is satisfied that the applicant did have and does have an ownership interest in the nominated business at all relevant points in time. Maintains a direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business: r.1.11(1)(b). Secondly, the applicant must maintain, or have maintained, direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business. The Tribunal is of the view that this criterion contains two requirements. First the applicant maintained direct and continuous involvement in the management of the business from day to day. Secondly the applicant maintained direct and continuous involvement in making decisions that affected the overall direction and performance of the business. In assessing whether the applicant satisfies the requirements of r.1.11(1)(b), the Tribunal has taken into account the judgement in Lobo v MIMA [2002] FCAFC168 which discusses an equivalent provision in relation to the former Subclass 845 visa. The Court specified that there are a variety of ways in which a person might maintain direct and continuous involvement in the management of a business and in making decisions affecting its overall direction and performance. A person involved in the ‘management of the business’ does not necessarily have to manage the whole of the business. The Tribunal must have regard to all the circumstances and requirements of the individual business. The Tribunal has considered the nature and size of the business. On the basis of the written and oral evidence provided by the applicant, the Tribunal acknowledges that the business when established in 2013, provided labour hire services. In 2015 due to changes to labour hire agreements, the applicant diversified and changed the nature of the business to a business and accounting consultancy service. The Tribunal understands that the business provides business consultation predominately to Chinese clients in the Eastwood area of Sydney. The business also provides accounting and book keeping services. On the basis of written evidence before the Tribunal the applicant employs four staff. During the transition period the applicant claimed she maintained direct and continuous involvement in the management of the business on a daily basis by ensuring all outstanding accounts receivable were collected and systems and processes associated with the consultancy aspects of the business were in place. The applicant made decisions in regard to the new direction of the business and has continued to be the primary decision maker in respect to the overall management and direction of the business. The Tribunal has taken into account the evidence before it, in relation to the visa application. The Tribunal accepts that the applicant has maintained direct and continuous involvement in the business and makes decisions affecting the overall direction and performance of the business.

Ratio Decidendi

Legal Principle Established

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