Li (Migration) - [2020] AATA 1205

Li (Migration) [2020] AATA 1205 (14 April 2020)

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Li LI
Weichen YU
Yuanting YU
Zixuan YU

CASE NUMBER:  1729191
HOME AFFAIRS REFERENCE(S):                 BCC2016/2805402
MEMBERS:I Berry (Presiding), P Ranson
DATE:14 April 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decisions not to grant the visa Applicants Business Skills (Residence) (Class DF) visas.

Statement made on 14 April 2020 at 1:41pm
Statement made on 14 April 2020 at 4:42pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – history of involvement in unacceptable business activities – underpayment of staff – ownership interest in main business – two nominated businesses – active operation – satisfying the definition of ‘main business’ at all relevant points in time – maintaining direct and continuous involvement – shareholder and director – no day-to-day involvement in the operations or management of the first business – commencement of ownership interest – purchased business – settlement date of second business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134
Migration Regulations 1994 (Cth), rr 1.11, 1.11A; Schedule 2, cls 890.211, 890.216

CASES
Rahbarinejad v Minister for Immigration & Border Protection [2018] FCCA 2293
Zhou v MIMIA [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 Immigration on 13 November 2017 to refuse to grant the visa Applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).
The Applicants applied for the visas on 18 August 2016. The application period is the two years immediately before the application is made, i.e. 18 August 2014 to 17 August 2016 (the Application Period).
At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor). The Applicants in this case are seeking to satisfy the criteria for the grant of Subclass 890 (Business Owner) visas, as set out in Part 890 of Schedule 2 to the Migration Regulations 1994 (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 890.2. The others need only to satisfy the secondary criteria set out in Subdivision 890.3.
The delegate in this case refused to grant the visas on the basis the first named visa Applicant (the Applicant) did not satisfy the requirements of cl.890.216 of Schedule 2 to the Regulations because of the involvement of the Applicant in another business, which was prosecuted for breaching Australia’s industrial relations laws by underpaying certain staff.
The Applicant appeared before the Tribunal on 5 December 2019 to give evidence and present arguments. The Applicant was represented in relation to the review by Ms Karen Wong (the Representative) who attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded the decision under review should be affirmed.

CONSIDERATION 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.

Continue reading Li (Migration)

Details

AGLC: Li (Migration) [2020] AATA 1205
Case: [2020] AATA 1205
Decision Date: 14 April 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Li (Migration), with the Applicant seeking review of a delegate's decision to refuse a Subclass 890 (Business Owner) visa. The refusal was based on the Applicant's alleged involvement in unacceptable business activities, specifically her directorship of Vipper Pty Ltd, a company prosecuted for underpaying its employees. The delegate found the Applicant complicit in this conduct, deeming it unacceptable in Australia.

The primary legal issue before the Tribunal was whether the Applicant met the requirements of Clause 890.211(1) of the Migration Regulations, which mandates an ownership interest in one or more actively operating main businesses in Australia for at least two years prior to the visa application and continuing at the time of the decision. This involved determining if the nominated businesses, Veggie Heaven and the 7-Eleven Business operated by Vipper, qualified as "main businesses" and if the Applicant maintained the requisite ownership interest and direct and continuous involvement.

The Tribunal reasoned that a business is an enterprise, not a legal entity, and therefore it was crucial to identify the specific businesses to which the "main business" definition applied. The Applicant relied on her ownership interest in Veggie Heaven, purchased on 16 November 2014, and her interest in the 7-Eleven Business operated by Vipper. The Tribunal noted that the Applicant's initial investment in Vipper was for visa purposes and that the Seafood Business, briefly operated by the Applicant, was not mentioned in her application and its financial documentation was unclear and contradictory. The Tribunal found that the Applicant's assertion of involvement in the Seafood Business was not substantiated by the provided documentation, which indicated its operation concluded in August 2013, prior to the settlement date of Veggie Heaven.

The Tribunal concluded that the decision under review should be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded the decision under review should be affirmed. As mentioned above, the delegate in this case refused to grant the visas on the basis the Applicant engaged in business conduct not acceptable in Australia. The Applicant had invested in another company, Vipper Pty Ltd (ACN 098 124 522) (Vipper), which was prosecuted for underpaying its employees. Vipper operated a convenience store in Brisbane and the Applicant was a director of Vipper at the time. The delegate found the Applicant, as a director of Vipper, was effectively complicit in the underpayment of wages and benefits and held that to be engaging in business conduct not acceptable in Australia. Before testing the contention the Applicant engaged in business conduct not acceptable in Australia it is necessary to firstly determine whether the main business test has been met. Clause 890.211(1) requires the Applicant had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made and continued to have that interest at the time the visa application was made. The Applicant must continue to satisfy this requirement at the time of this decision[1].[1] cl.890.221(a) No more than two businesses can be nominated for this purpose (r.1.11(2)) and one or both of the businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion.[2][2] Yang v Minister for Immigration and Border Protection [2014] FCCA 1576. It is important to note at this point case law has established a business is not a legal entity but rather an enterprise or undertaking. It is therefore important for the Tribunal to identify the business or businesses to which the definition of main business must be applied. It is also important to note that one business can be owned by multiple entities and conversely, multiple businesses can be owned by one entity. The businesses relied on by the Applicant to satisfy these requirements are supermarkets known as ‘Veggie Heaven’ purchased on 16 November 2014 (Veggie Heaven) and her interest in a 7-Eleven business operated by Vipper (the 7-Eleven Business). The Applicant commented at the Hearing she initially invested in Vipper for the purpose of her visa application. Veggie Heaven and the 7-Eleven Business were owned by LNV Trading Pty Ltd (ACN 162 690 100) (LNV) and Vipper respectively. The Tribunal notes the form 1217 lodged with the application recorded at item 13 under heading ‘Main business 1’ in answer to the question ‘What was/is the major activity of this business?’ only the word ‘Supermarket’. The Applicant briefly had a seafood import business, which she asserted was conducted from about April 2013 to January 2014, (the Seafood Business). The Tribunal notes the form 1217 lodged with the application did not mention the Seafood Business. The Applicant provided a copy of the business activity statement (BAS) for LNV for the quarter ended 30 September 2014, which the Tribunal notes is prior to the settlement date for Veggie Heaven, and which shows sales of $55,978 with no applicable GST and purchases of $54,016 with no input credits claimed. The Applicant was asked at the Hearing if these transactions were for the Seafood Business and she initially said they were; then retracted that statement instead referring the question to her accountant, which she did and the accountant refused to cooperate. In any event, the documentation in relation to the Seafood Business provided by the Applicant post-Hearing reveals the activity commenced in March 2013 and concluded in August 2013.

Ratio Decidendi

Legal Principle Established

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