Kou (Migration) - [2024] AATA 2245

Kou (Migration) [2024] AATA 2245 (19 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Danqing Kou
Mr Yang Pan
Mr Daniel Guan Nan Pan
Mr David Guan Quan Pan
CASE NUMBER:  2118774
HOME AFFAIRS REFERENCE(S):          BCC2018/4649365

MEMBER:Peter Ranson
DATE:19 June 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Business Innovation and Investment (Permanent) (Class EC) visas.
Statement made on 19 June 2024 at 12:41pm

CATCHWORDS
MIGRATION – Business Skills (Permanent) visa – Subclass 888 – purchase of the business and the associated loan from the applicants to do that was not adequately explained and evidenced – value of the business – reasons for the decline in the value of the business have been adequately explained – applicants have met the requirements tested by the Tribunal other than net business assets at the time of this decision – Ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, rr 1.11, 1.03, Schedule 2, cl 888.222, 888.223, 888.224, 888.225

STATEMENT OF DECISION AND REASONS

BACKGROUND

Ms Kou and her family are from China having previously lived in New Zealand. They established a business in China in 1993 and moved to New Zealand in 2001. They arrived in Australia in 2013 and purchased a takeaway business in suburban Melbourne. The business closed and relocated to another location under a new name, and they continue under that name now.
Ms Kou applied for a Business Skills (Permanent) Business Innovation and Investment (Permanent) (Class EC) visa on 23 October 2018. The secondary applicants applied based on being members of her family unit.
The primary criteria for the grant of a Subclass 888 visa include criteria set out in streams. Ms Kou applied for a visa in the Business Innovation stream. The criteria in Subdivisions 888.21 and 888.22 are the primary criteria for the grant of the visa in the Business Innovation stream. All criteria must be satisfied at the time a decision is made on the application.
On 6 December 2021, a delegate of the Minister for Home Affairs refused to grant Ms Kou a Business Skills (Permanent) Subclass 888 visa under s 65 of the Migration Act 1958 (Cth). The delegate found the secondary applicants could not be granted Subclass 888 visas, as they did not meet the primary criteria, nor did they meet the secondary visa criterion (cl.888.311) requiring them to be members of the family unit of a person who met the primary visa criteria, and they made a combined application with Ms Kou. Ms Kou then applied for a review of that decision.
The delegate refused to grant the visa on the basis the purchase of the business and the associated loan from the applicants to do that was not adequately explained and evidenced.
The issues in the present case are:
(a) Do the applicants have an actively operating main business at the relevant times,
(b) Was the purchase of…

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.

Keep reading for free

Create a free CaseChat account to read Kou (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] AATA 2245
Decision Date: 19 June 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Business Skills (Permanent) visa, Subclass 888, made by Ms Kou. The Administrative Appeals Tribunal (AAT) was tasked with determining the correct or preferable decision based on an independent assessment of the facts.

The primary legal issue before the Tribunal was whether Ms Kou had met the requirements for the Business Skills (Permanent) visa, specifically concerning her net business assets and ownership interest in an actively operating main business in Australia. The Tribunal considered various clauses of the relevant regulations, including cl.888.222, cl.888.223, cl.888.224, and cl.888.225, to assess whether the applicant had satisfied the criteria for the visa.

The Tribunal reasoned that while policy could be a relevant factor, it must be applied flexibly and consistently with legislative requirements. The Tribunal noted that it had an obligation to consider all relevant criteria, even if the initial refusal was based on a specific one, to avoid unnecessary remittals. In this instance, the Tribunal examined Ms Kou's ownership interest in a takeaway food business, 'Clarinda Fish and Chippery', which she purchased in 2013 and operated in partnership with Mr Pan. The Tribunal also considered the reasons for any decline in the business's value, ultimately concluding that the applicants had adequately explained these reasons. Despite some initial concerns regarding the explanation and evidence for the purchase of the business and associated loan, and the net business assets at the time of the decision, the Tribunal found that the applicants had met the requirements tested by the Tribunal, other than the net business assets. The Tribunal affirmed the decision under review.

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

Full text does not contain this section.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal is charged with determining the correct or preferable decision based on an independent assessment of the facts before it and is entitled to treat policy as a relevant factor in that determination. The Full Federal Court has found that where a policy exists to guide the decision maker in exercising its powers, the Tribunal may apply that policy in reviewing a decision where it "makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion”.[1][1] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, from 420. To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the policy is consistent with the requirements as set out in the legislation. The President of the AAT has issued Directions on Conducting Migration and Refugee reviews. Copies of these were provided to Ms Kou by e-mail on 22 February 2024. Generally, the Tribunal will only look at the criterion the delegate was not satisfied was met. However, if it appears another criterion may not be satisfied, the Tribunal has an obligation to consider that other criterion, because there is no point remitting a decision on one criterion and sending it back to the Department of Home Affairs only for it to fail on another criterion if that was obvious to the Tribunal while conducting its review. In this decision, the Tribunal is considering cl.888.225, being the criterion on which the delegate refused your application, which relies on the applicant having an ownership interest in at least one actively operating main business in Australia. To do that, the Tribunal will first consider cl.888.222, then cl.888.223 and cl.888.224, before turning its attention to cl.888.225. Ms Kou and her family lived in New Zealand and moved to Australia in June 2013. Mr Pan had arrived earlier that year to work in a takeaway food business, such as a fish and chip shop, so he could become familiar with such businesses ahead of buying one. In October 2013, Ms Kou purchased a takeaway business called ‘Clarinda Fish and Chippery’ in suburban Melbourne. She operated the business in partnership with Mr Pan and they leased the premises from which the business operated. The business now operates as ‘Angelo’s Fish & Chips’ at Wantirna also in suburban Melbourne. Clause 888.222 requires the applicant had an ownership interest in at least one actively operating main business in Australia during the two years immediately before the application was made,[2] and continues to have the interest in the actively operating main business.[3] No more than two businesses can be nominated for this purpose,[4] and one or both businesses relied on to meet these criteria.[5][2] Clause 888.222(1)(a).[3] Clause 888.222(1)(b).[4] r.1.11(2).[5] Yang v Minister for Immigration and Border Protection [2014] FCCA 1576.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.