Jia (Migration)

[2024] AATA 1679

Jia (Migration) [2024] AATA 1679 (26 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Rongping Jia
Miss Jianing Yao

REPRESENTATIVE:  Mrs Pushpaleela R Selvarajah

CASE NUMBER:  2112117

HOME AFFAIRS REFERENCE(S):          BCC2018/5057695

MEMBER:Susan Hoffman

DATE:26 March 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Permanent) (subclass 888) visas.

Statement made on 26 March 2024 at 7:45am

CATCHWORDS
MIGRATION – Business Skills (Permanent) (Class BB) visa – Subclass 888 (Business Innovation and Investment (Permanent)) – significant investor stream – fund managers incorrectly set up account to automatically transfer fees from complying investment to non-complying cash account – no right of review for primary applicant, and no application made – secondary applicants wife and daughter – daughter’s long residence, education and mental health and treatment – request for referral for ministerial consideration declined – possibility of applying directly – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 888.311
Administrative Appeals Tribunal Act 1975 (Cth), s 2A

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 Home Affairs on 25 August 2021 to refuse to grant the visa applicants Business Skills (Permanent) Subclass 888 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 14 November 2018 as secondary visa applicants. The delegate refused to grant a Subclass 888 visa to the primary visa applicant, Mr Le Yao, and refused to grant visas to Ms Jia (his spouse) and Miss Yao (their daughter) on the basis that they were not members of a family unit of a person who holds a Subclass 888 visa.

3. Mr Yao had no right of review and did not apply to the Tribunal for review of the delegate’s decision.

4. Miss Yao appeared before the Tribunal on 25 January 2024 to give evidence and present arguments. Ms Jia did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their representative, Ms Selvarajah, and their counsel, Mr Nicholas Poynder, who provided a written submission dated 24 January 2024.

6. At the hearing, it was conceded that the delegate’s decision was correct. The reasons for this are set out in detail later in this Statement. At the hearing, Ms Selvarajah for the applicants requested, and was granted, seven days to make a further submission to support their request that the Tribunal refer their case for ministerial discretion. On 31 January 2024, Ms Selvarajah asked for an extension of time to 1 March 2024 to provide additional documents in support of the request for the referral. The extension of time request was granted.

7. On 1 March 2024, a request for a further extension of time - to 22 March 2024 – to provide additional documents was made. The Tribunal granted this request but advised that no further extension of time requests would be granted.

8. On 22 March 2024, Ms Selvarajah submitted a letter from a clinical psychologist, Ms Jing Wang, and requested a further three weeks for Ms Wang to produce a report about Miss Yao. The Tribunal refused to grant this extension of time request.

9. As already set out, the extension of time requests were made only in respect of submitting documents concerning the request that the Tribunal refer the case for ministerial intervention.

10. The Tribunal is mindful of section 2A of the Administrative Appeals Tribunal Act 1975 which sets out the AAT’s objective, as follows:

    In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

    (a) is accessible; and

    (b) is fair, just, economical, informal and quick; and

    (c) is proportionate to the importance and complexity of the matter; and

    (d) promotes public trust and confidence in the decision‑making of the Tribunal.

11. The decision in this review is clear and will not be affected by the submission of more documents. It was conceded on the day of the hearing that the outcome of review would be to affirm the decision of the delegate. The Tribunal considers it would not be acting in accordance with the objective to be quick, to delay issuing this decision any further. It is now more than eight weeks after the hearing. It is, of course, open to the applicant to apply directly for ministerial discretion to be applied.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. It is not in contention that Mr Yao was the primary applicant for a Subclass 888 visa and the application was refused by the Department. Mr Yao did not have a right of review in relation to that decision and no application for review of that original decision was before the Tribunal.

14. The applicants in this review (Ms Jia and Miss Yao) are the secondary applicants in the visa application lodged by Mr Yao. That being the case, the issue in this matter is whether cl 888.311 in Schedule 2 to the Migration Regulations 1994 (the Regulations) is satisfied. It reads:

    The applicant:

    (a)  is a member of the family unit of a person who holds a Subclass 888 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b)  made a combined application with that person.

15. As Mr Yao’s visa application was not successful, the secondary applicants could not be found to be members of the family unit of a person who holds a Subclass 888 Visa. The visa applications of the secondary applicants could not succeed.

16. The applicants in this review conceded that the decision of the delegate was correct and could not be overturned on review. Their reason for seeking review by the Tribunal of the delegate’s decision was that they wanted their case to be referred to the Minister for consideration under s. 351 of the Act. For that to happen, there has to be decision by the Tribunal. The applicants requested that the Tribunal refer their case for ministerial discretion.

17. Section 351 of the Act provides for the Minister to substitute a decision of the Tribunal with a more favourable decision.

18. The Tribunal declines to make a referral to the Minister on behalf of the applicants. It notes that the applicants can make a request directly to the Minister.

19. For the record, further background to the case is as follows.

    Why the visa application was unsuccessful

20. Mr Yao applied for a Subclass 888 visa in the Significant Investor stream. At the time he was the holder of a Subclass 188 visa, which is a temporary visa. He applied for a Subclass 888 visa on the basis of maintaining a complying investment in Australia of at least $5 million for a four-year period.

21. Mr Yao’s investment was made up of two components:

    ·     $1.5 million which was invested with the New South Wales Waratah Bond Program.

    ·     $3.5 million which was invested with MLC through JBWere Limited fund managers on 20 October 2014.

22. These investments met the criteria to be found to be complying investments with a combined value of $5 million. This continued to be the case until 15 February 2016 when $4,587.47 was transferred out of the MLC complying investment into a non-complying MLC cash account. After this occurred, there was less than the required $5 million invested in the complying investments.

23. After the delegate made their decision, Mr Keiran Faulkner, Senior Wealth Adviser, JBWere Limited wrote to the Department. His letter was dated 27 August 2021. Mr Faulkner made the following points:

    ·     JBWere made an error in setting up the accounts. The set up should have been such that fees charged in relation to the investments were debited to a bank account and not taken from a complying investment account and transferred to non-complying MLC cash account.

    ·     The selling down of the investments to pay for fees was automatic and (after the initial set up) had no human involvement from Mr Yao, JBWere or MLC.

    ·     The amount that was sold down was remitted to MLC and not to Mr Yao.

    ·     Mr Yao operated in good faith and JBWere were at fault.

24. The Tribunal is satisfied that the reduction in the balance in the complying investment was the result of a mistake made by JBWere and that Mr Yao was not aware that the balance had reduced until notified of it by Mr Faulkner. Mr Faulkner set out the details in a letter to Mr Yao dated 12 November 2018.

    The review applicants’ circumstances

25. The Tribunal asked Miss Yao if she had any family members who are Australian citizens or Australian permanent residents and she said she did not.

26. Miss Yao gave the following evidence:

    ·     During the process of the visa application, neither she nor her family did anything wrong.

    ·     She was 16 years old when she came to Australia in 2011 and has lived in Australia since then. Her mother, Ms Jia, was in Australia with her on a guardianship visa. Miss Yao has been in Australia 12 years and her mother has been here for 10 years. She calculates that she has been outside of Australia for one year during the 12 years.

    ·     Miss Yao was in Australia during high school and attended university here. All her friends are in Australia. She has a Bachelor of Commerce degree, majoring in Finance and plans to study for a PhD or other research degree. As she was not living in China during the years she was in Australia, she did not take the Chinese college exam, so she cannot continue her studies in China.

    ·     All her social life is in Australia. Ms Jia’s life is also all in Australia. Her mother has been learning English to integrate better into Australian society and her plans for the future are based on her being in Australia.

27. Mr Poynder added that it was apparent from the hearing that Miss Yao spoke English as well as Mandarin. She had studied and attained her degree in English. Miss Yao had arrived in Australia as a 16-year-old and was now 28 years old which presented a challenge for her should she return to China. She cannot continue her Australian studies in China.

28. The requests for extension of times after the hearing were to allow time for assessments to be made of Miss Yao’s psychological health. According to a letter dated 15 February 2024 from Dr Zhuang (Zan) Miao, consultant psychiatrist, Miss Yao is under his care. She “presented with symptoms of Major Depressive Episode with suicidal ideations, in the context of a few psychosocial stressors.”

29. According to a letter dated 22 March 2024 from Ms Jing Wang, Clinical Psychologist, she was currently assessing Miss Yao and would produce a report.

    Concluding paragraph

30. As neither of the applicants in this review are members of the family unit of a person who holds a Subclass 888 visa, the applicants do not satisfy the criteria for grant of a Subclass 888 visa.

    DECISION

31. The Tribunal affirms the decision not to grant the applicants Business Skills (Permanent) (subclass 888) visas.

    Susan Hoffman
    Member