Hu (Migration) - [2023] AATA 1423

Hu (Migration) [2023] AATA 1423 (19 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Sau Lan Hu
Mr Hon Hui Lim
Miss Joanne Hui Ting Lim
REPRESENTATIVE:  Mr Nabeel Lang (MARN: 0601921)
CASE NUMBER:  2015217
HOME AFFAIRS REFERENCE(S):          BCC2020/1292298

MEMBER:Susan Hoffman
DATE:19 May 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants Business Innovation and Investment (Permanent) (subclass 888) visas.

Statement made on 19 May 2023 at 8:52am
CATCHWORDS
MIGRATION – Business Skills (Permanent) (Class EC) visa – Subclass 888 (Business Innovation and Investment (Permanent)) – ownership interest in at least one actively operating main business during the two years before the visa application was lodged – began the process of opening a bakery business – made enquiries – premises not acquired – seafood export business – provision of goods and services to the public – single wholesaler owned by the applicant’s family – no sales or expenses during relevant period – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 134
Migration Regulations 1994 (Cth), rr 1.03, 1.11; Schedule 2, cl 888.222
CASES
Shahpari & Ors v Minister for Immigration & Anor [2016] FCCA 513
Zhou & Ors v Minister for Immigration [2003] FMCA 169
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 Home Affairs on 28 September 2020 to refuse to grant the visa applicants Business Skills (Permanent) (Class EC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas in the Business Innovation stream on 1 April 2020. They were seeking to satisfy the criteria for the grant of a Subclass 888 visa. The delegate refused to grant the visas on the basis that she was not satisfied that the primary applicant had an ownership interest in at least one actively operating business throughout the two-year period immediately before the applications were made.
The applicants appeared before the Tribunal on 13 April 2023 to give evidence and present arguments.
The Tribunal also received oral evidence from Mr Vun Chan Lim (the applicant’s spouse) and Mr Honn Fatt Lim (their son). Both witnesses attended the hearing in its entirety.
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.
A pre-hearing submission was made dated 6 April 2023. A post-hearing submission was made dated 24 April 2023. This was followed up by an amended submission dated 29 April 2023. The two post-hearings submissions were almost identical. The second submission updated some financial information and corrected a typographical error included in the first submission.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The central issue in the present case is whether there was at least one actively operating main 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: [2023] AATA 1423
Decision Date: 19 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by Mr Hu (the applicant) against a decision not to grant him and his family Business Innovation and Investment (Permanent) (subclass 888) visas. The central dispute concerned whether the applicant had met the requirement of having an ownership interest in at least one actively operating main business in Australia during the two years immediately before his visa application was lodged on 1 April 2020.

The Tribunal was required to determine if the applicant satisfied clause 888.222 of the Migration Regulations 1994, which mandates an ownership interest in at least one actively operating main business. This involved interpreting the definitions of "ownership interest," "main business," and "qualifying business" as provided in the Migration Act 1958 and the Migration Regulations 1994. Specifically, the Tribunal had to assess whether two identified business activities – a seafood export business and a bakery business – met the criteria of being actively operating main businesses during the relevant period of 1 April 2018 to 31 March 2020.

The Tribunal found that while the seafood export business had been in operation for some time, the evidence did not establish it as a "main business" as defined by the regulations, particularly concerning its provision of goods and services to the public and its profit-making purpose. The bakery business, which had not yet opened by the start of the relevant period, clearly did not meet the criteria of being actively operating. The Tribunal concluded that the applicant had not demonstrated that he met the requirements of clause 888.222.

Consequently, as an essential requirement for the visa was not met, the Tribunal affirmed the decision not to grant the applicants the Business Innovation and Investment (Permanent) (subclass 888) visas.

Orders

Orders of the court

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Background

Background to the litigation

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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 central issue in the present case is whether there was at least one actively operating main business during the period 1 April 2018 to 31 December 2018. This is a criterion that must be met for clause 888.222 to be satisfied. It reads as follows:Cl 888.222 (1) The applicant (the current applicant): (a) had an ownership interest in at least one actively operating main business in Australia during the 2 years immediately before the application was made; and(b) continues to have the ownership interest in the actively operating main business.(2) If the current applicant acquired the ownership interest from another person who was an applicant for, or held, a Business Skills (Permanent) (Class EC) visa or a Business Skills (Residence) (Class DF) visa at the time of the acquisition, the current applicant must have held the ownership interest with that person as a joint interest for at least one year before the current applicant’s application was made. “Ownership interest” is defined in section 134(10) of the Act as follows:ownership interest, in relation to a business, means an interest in the business as: (a) a shareholder in a company that carries on the business; or (b) a partner in a partnership that carries on the business; or (c) the sole proprietor of the business;including such an interest held indirectly through one or more interposed companies, partnerships or trusts. Cl. 888.222(1) refers to a main business. The definition of a main business is set out on Regulation 1.11 and can be found as an attachment to this statement. Regulation 1.11(d) requires that the business is a qualifying business. The definition of the term “qualifying business” is set out in r.1.03 and is as follows:qualifying business means 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. Cl. 888.222(1)(a) requires the applicant to have had an ownership interest in at least one actively operating main business during the two years before the visa application was lodged. As it was lodged on 1 April 2020, the relevant two-year period runs from 1 April 2018 to 31 March 2020. According to the visa application form, the legal registered name of the main business was H&L Corporation Pty Ltd. Two business activities were identified, which were the export of seafood and the production and retail of patisseries. As at 1 April 2018 the seafood export business had been in operation for about two years and the bakery business had not yet opened. As general background, consistent with written and oral submissions, the businesses were run by the primary applicant’s family. The secondary applicants, Mr Hon Hui Lim and Miss Joanne Hui Ting Lim, are the children of the primary applicant and her husband, Mr Vun Chan Lim. Their eldest son is Mr Hon Fatt Lim, known as Mr Hayden Lim. According to the submissions, he is an Australian citizen and is an accountant. The post-hearing submissions stated that Mr Vun Chan Lim and Mr Hayden Lim “were the two key executive decision makers.” As noted earlier, they both attended the hearing in person. Together they gave most of the oral evidence.

Decision

Reasons for decision

Given the findings above, the Tribunal is not satisfied that cl 888.222 is met. As one of the essential requirements for the visas is not met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicants Business Innovation and Investment (Permanent) (subclass 888) visas.Susan HoffmanMemberReg 1.11 Main business (1) For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:(a) the applicant has, or has had, an ownership interest in the business; and(b) the applicant maintains, or has maintained, 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; and(c) the value of the applicant’s ownership interest or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:(i) if the business is operated by a publicly listed company — at least 10% of the total value of the business; or(ii) if:(A) the business is not operated by a publicly listed company; and(B) the annual turnover of the business is at least AUD400 000;at least 30% of the total value of the business; or(iii) if:(A) the business is not operated by a publicly listed company; and(B) the annual turnover of the business is less than AUD400 000;at least 51% of the total value of the business; and(d) the business is a qualifying business. (2) If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.

Ratio Decidendi

Legal Principle Established

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