Li (Migration) - [2019] AATA 5700

Li (Migration) [2019] AATA 5700 (13 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yi Li
Mr Bin Yan
Mr Haofeng Yan
CASE NUMBER:  1621807
DIBP REFERENCE(S):  BCC2015/3320324 BCC2015/349564 BCC2015/350109 BCC2015/350110 BCC2015/350113 BCC2015/350114 BCC2016/2082479 BCC2017/997308
MEMBER:Warren Stooke AM
DATE:13 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 visa:
· cl.892.211 of Schedule 2 to the Regulations;
· cl.892.214 of Schedule 2 to the Regulations; and
· cl.892.221(a) of Schedule 2 to the Regulations.

Statement made on 13 August 2019 at 1:57pm

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(1), 375A
Migration Regulations 1994 (Cth), Schedule 2 cls 892.211, 892.214, 892.221(a), rr 1.03, 1.11A(1)
CASES

Commissioner for Corporate Affairs (Vic) v Bracht (1989) 7 ACLC 121
Cullen v Corporate Affairs Commission (NSW) (1988) 14 ACLR 789
Re Lau & MIMIA (2002) AATA 703
Sun & Anor v Minister for Immigration and Anor [2015] FCCA 1266
Yang v Minister for Immigration and Border Protection [2014] FCCA 1576

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 to refuse to grant the applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 2 February 2015. The delegate refused to grant the visas on 15 December 2016.
The applicants applied for the visas on 2 February 2015. 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 892 (State/Territory Business Owner) visas, as set out in Part 892 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 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.
The delegate made the decision on the basis that evidence of being actively engaged in the business was not provided by the applicant as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).
The applicant appeared before the Tribunal on 17 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jack Yang. The applicant was represented in relation to the review. The representative made written submissions and attended the Tribunal hearing.
The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that she understood that the reason for the refusal to grant the visa was that “there was no management”.
The applicant confirmed to the Tribunal that to the best 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.

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Details

Case: [2019] AATA 5700
Decision Date: 13 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Ms Li, who sought review of a decision concerning her eligibility for a Business Skills (Residence) visa, specifically the Subclass 892 (State/Territory Sponsored Business Owner) visa. The dispute centred on whether Ms Li met the criteria relating to ownership and active engagement in an Australian business.

The Tribunal was required to determine whether Ms Li satisfied the requirements of clause 892.211 and clause 892.221 of the Migration Regulations. Clause 892.211 mandates that an applicant must have had, and continue to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years prior to the application date. Clause 892.221 requires the applicant to maintain such an ownership interest at the time of the decision.

The Tribunal noted that Ms Li provided evidence of acquiring 100 per cent ownership of Sihang Trading Australia Pty Ltd, trading as Bargains on Parade, on 19 November 2012. This business was described as a retail shop located in Williamstown, Victoria. The core of the Tribunal's consideration involved assessing whether this ownership, as evidenced by company documents, satisfied the "actively operating main business" and "actively engaged" requirements for the specified periods.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. This indicates that the Tribunal found there were issues with the original decision that required further examination or a new decision to be made.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in the present case are whether the applicants satisfy the time of application criterion in cl.892.211 and the time of decision criterion in cl.892.211. Clause 892.211 requires that the applicant has had, and continues to have, an ownership interest in 1 or more actively operating main business in Australia for at least 2 years immediately before the application is made. Clause892.221 requires that the applicant continues to have, an ownership interest in 1 or more actively operating main business in Australia at the time of decision. ACN and Share Holding The applicant provided evidence that she acquired 100 per cent ownership of Sihang Trading Australia Pty Ltd (T/S Bargains on Parade) on 19 November 2012. The business was described as a retail shop and is located at Shop 1/17 Douglas Parade, Williamstown, Victoria [Department Fil: Folio 188-191]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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