Li (Migration) - [2023] AATA 1116

Li (Migration) [2023] AATA 1116 (26 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Yinrong Li
Mr Yonghua Zhang
Mr Jiaying Zhang
Miss Ziying Zhang
REPRESENTATIVE:  Mr Min Hu (MARN: 0215827)
CASE NUMBER:  2005928
HOME AFFAIRS REFERENCE(S):          BCC2018/3300428

MEMBER:Antonio Dronjic
DATE:26 April 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Permanent) Subclass 888 visas.

Statement made on 26 April 2023 at 12:37pm
CATCHWORDS
MIGRATION – Business Skills (Permanent) (Class EC) visa – Subclass 888 (Business Innovation and Investment (Permanent)) – ‘main business’ – ownership interest – direct and continuous involvement in management on a day to day basis – requirements of the individual business – real estate agency – licensed estate agent – officer in effective control – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.11; Schedule 2, cl 888.222
CASES
Minister for Immigration and Citizenship v Hart [2009] FCAFC 112
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 20 March 2020 to refuse to grant the visa applicant a Business Skills (Permanent) Subclass 888 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 31 August 2018. The delegate refused to grant the visa on the basis that the primary applicant (the applicant) was unable to meet the requirements of cl 888.222(1) of the Migration Regulations 1994 (the Regulations).
In her visa application form, Ms Li nominated one main business, Yinrong Pty Ltd trading as Ivy Real Estate (Docklands). The delegate was not satisfied on the evidence presented to the Department that the applicant 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 during the period of two years before lodgement of the visa application. Consequently, the applicant was unable satisfy the definition of main business, which has its meaning set out in reg 1.11.
The applicants applied to the Tribunal on 24 March 2020 for review of the delegate’s decision and with their applications submitted a copy of the primary decision record.
On 20 January 2023, the Tribunal wrote to the applicants informing them that the Department file contains a certificate and notification regarding disclosure of certain information to the Tribunal, issued under s 376 of the Act. The Tribunal informed the applicants of its preliminary view that the certificate is valid, and accordingly release of information is prevented. The Tribunal enclosed a copy of the s 376 certificate dated 20 March 2020 and invited the applicants to provide their comment on the validity of the certificate.
On 1 February 2023, the applicant’s representative wrote to the Tribunal informing it that the ‘applicant has decided to accept AAT’s decision not to release the relevant information’.
On…

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 Li (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: [2023] AATA 1116
Decision Date: 26 April 2023

CaseChat Overview and Summary

This matter concerned an appeal by Ms Li against a decision of the Administrative Appeals Tribunal (AAT) affirming the refusal of her Business Skills (Permanent) (Class EC) visa, Subclass 888 (Business Innovation and Investment (Permanent)). The core of the dispute revolved around whether Ms Li had met the regulatory requirement of maintaining direct and continuous involvement in the management of her business on a day-to-day basis during the specified period.

The legal issues before the court were whether Ms Li had demonstrated direct and continuous involvement in making decisions that affected the overall direction and performance of her business between 31 August 2016 and 30 August 2018, and whether she had maintained direct and continuous involvement in the day-to-day management of the business during the same period. These were factual matters for the Tribunal to determine based on the evidence presented.

The court considered the ordinary dictionary meaning of "continuous" as unceasing or unbroken, and "day to day" as self-evident. Evidence from Ms Zhang, a licensed estate agent and director of the business, indicated that Ms Li attended promotional events, made decisions on discounts and rental management fees, negotiated corporate rates with property developers, and made decisions regarding employee salaries, hiring, and firing, often in consultation with others. Ms Li herself described her role as the "boss" and director, overseeing the financial aspects and attending promotional events with Chinese-speaking clients. The Tribunal accepted this evidence, finding that Ms Li had maintained direct and continuous involvement in decision-making affecting the business's overall direction and performance. The court affirmed the Tribunal's finding that the applicant had met the requirements.

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

Ms Li stated that she is in charge of the financial side of her business. When asked, she stated that the business engages services of an external accounting firm which prepares relevant financial documents (including BAS and financial reports).Evidence of Ms Zhang In her evidence, Ms Zhang confirmed that she is a director and minority shareholder of Yinrong Pty Ltd. She is and has been a licensed estate agent since June 2016. She stated that her position at the business is manager, and that in addition to a sales commission, she receives an annual salary of approximately $40,000 to $50,000. The witness confirmed that Ms Li purchased Ivy Real Estate (Docklands) from her father, Mr Hao (Henry) Zhang, and that one of the conditions for sale of this business was that Ms Zhang is appointed a company director and a shareholder and that she works at the business as an estate agent. This condition was verbally agreed between Ms Li and Mr Zhang. During the period from August 2016 to August 2018, the business employed five full‑time employees. Ms Zhang was the only licensed estate agent during this period, and in that capacity, she managed the agency’s sales department. She was the only person authorised to operate the agency’s trust account. Initially, her cousin Oskar (Ms Li’s son) worked in sales. From 2019, he was appointed to manage the agency’s rental department. Oskar is no longer employed by the business, and according to Ms Zhang’s recollection, he ceased employment in 2021. Ms Zhang confirmed that the business retained services of external accountants for bookkeeping and the preparation of financial reports for the ATO. Ms Zhang confirmed in her evidence that she was aware of the requirement that the manager of the real estate agency must be a licensed estate agent. She gave evidence that, as the only licensed estate agent, she managed the estate agency during the relevant period, but that at the same time Ms Li managed her. When asked to describe Ms Li’s role in the business during the relevant period, the witness stated that Ms Li attended various promotional events, made decisions whether to approve discounts for property buyers or rental management fees and communicated and discussed corporate rates with property developers to secure sales contracts for the agency. When the Tribunal enquired how she was able to communicate with property developers without having functional English, the witness stated that Ms Li communicated with Chinese developers or Chinese nationals working for property developers. Ms Zhang gave evidence that Ms Li worked every day but that her work hours were flexible because of the nature of her role at the business. The witness further stated in her evidence that Ms Li made decisions about employees’ salaries and that, in consultation with Ms Zhang and Oskar, decided whether to hire or fire employees. She explained that because Ms Li invested money in the business, she was the one making important decisions affecting the overall business performance.

Decision

Reasons for decision

However, the Regulations do require an applicant to ‘maintain direct and continuous involvement in management on a day to day basis’. The ordinary dictionary meaning of ‘continuous’ is unceasing, unbroken, uninterrupted. The meaning of the term ‘day to day’ is self‑evident.Did the applicant maintain direct and continuous involvement in making decisions that affected the overall direction and performance of the business from 31 August 2016 to 30 August 2018? In his submissions, the applicant’s representative stated that Ms Li, as a person with a controlling ownership interest in the business, had and still has a final say in respect of the business development, budgeting and costing decisions. It was further submitted that, during the relevant period, the applicant’s duties included marketing campaigns, sponsorship, financial operations, legal assistance, welfare of the employees and return of the investment. The applicant claims that both estate managers (Ms Zhang and the applicant’s son Oskar) reported to her, and that she had a final say in deciding who would be employed at the business. In her oral evidence, Ms Li described her role in the business, during the period from 31 August 2016 to 30 August 2018, as the boss and the director of the business. She was employed as a general manager, and in that capacity she received a fortnightly salary of approximately $1,400. She conceded that she did not have authority to operate the agency’s trust account but stated that she oversaw the financial side of her business. She further stated that she attended several promotional events and interviews, with Chinese‑speaking clients and developers. She described Ms Zhang’s role as looking after ‘nitty-gritty’ parts of the business. In her oral evidence, Ms Zhang stated that, during the relevant period, Ms Li attended various promotional events, made decisions whether to approve discounts for property buyers or rental management fees and communicated and discussed corporate rates with property developers to secure sales contracts for the agency. She further stated that Ms Li made decisions about employees’ salaries, and that in consultation with her and Oskar, decided whether to hire or fire employees. Based on the evidence before it, the Tribunal accepts that the applicant maintained direct and continuous involvement in making decisions that affected the overall direction and performance of the business from 31 August 2016 to 30 August 2018.Did the applicant maintain direct and continuous involvement in the management of the business from day to day during the period from 31 August 2016 to 30 August 2018? The question of whether an applicant has demonstrated an involvement in the management of that business from day to day is a matter of fact for the Tribunal.[1][1] Lobo v MIMIA [2005] FMCA 1024 at [25]–[26]. For example, in Sun v MIBP [2015] FCCA 1266 the Court held that on a plain reading of reg 1.11(1)(b) it could not be said that the applicant, whilst she was overseas, maintained a direct and continuous involvement in the management of the business from day to day including making decisions affecting the overall direction and performance of the business (at [34]).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.