Liu (Migration)

[2024] AATA 941

Liu (Migration) [2024] AATA 941 (16 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yingqun Liu
Miss Shurui Liu
Master Hengyi Liu
Mrs Jinru Li

REPRESENTATIVE:  Mr Christopher Levingston (MARN: 9301108)

CASE NUMBER:  2110873

HOME AFFAIRS REFERENCE(S):          BCC2019/5323933

MEMBER:Andrew McLean Williams

DATE:16 April 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for reconsideration, with the direction that:

·the first-named Applicant meets the requirements of clause 888.224 of Schedule 2 to the Regulations; and

·the other named Applicants, as family members of the first-named Applicant, meet the requirements of clause 888.311.

Statement made on 16 April 2024 at 11:18am

CATCHWORDS

MIGRATION – Business Skills (Permanent) (Class EC) visa – Subclass 888 (Business Innovation) – BAS statements for two years prior to the visa application – statements submitted late – members of the family unit – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 888.224, 888.311

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 to refuse to grant the Applicants Business Skills (Permanent) visas, under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The Applicants applied for the visas on 23 October 2019. The Delegate refused to grant the visas on 17 August 2021 (‘the refusal decision’).

2. The Delegate made the refusal decision on the basis that the first-named Applicant had not provided evidence to satisfy the requirements in clause 888.224 of the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 888.224 requires that BAS statements for the two years immediately prior to the date of the visa application be submitted in support of the application.

3. The Applicant appeared before the Tribunal on 16 April 2024, and was represented in this review application by his solicitor Mr Christopher Levingstone, of Christopher Levingston & Associates.  

4. This visa application was originally submitted on 23 October 2019. Accordingly, clause 888.224 requires that the application be accompanied by BAS statements for the eight financial quarters immediately prior to the date of visa application – those between July 2017 and September 2019.

5. In a statement dated 8 April 2024 the Applicant explains that he has been building and conducting his business in Australia and had been reporting BAS to the ATO every quarter, via the aegis of his accountant and the ATO on-line portal.  In parallel, the Applicant’s Subclass 888 visa application was being managed by his former migration agent, who would periodically request documents from the Applicant in support of the visa application.  Eight BAS reports were provided to the Applicants former migration agent on 5 September 2019 in response to her request for same.  However, these were not Business Activity Statements, in the specific form required by clause 888.224. Unfortunately, that fact was not advised to the Applicant by his former migration agent until as late as August 2021. The Applicant promptly instructed his accountant to provide the necessary BAS statements in their correct form to the former Migration Agent, and these were duly provided, however by that stage the Delegate had already made the refusal decision.

6. Prior to the hearing of this application for review Mr Levingstone made the necessary arrangements for the required BAS statements to be submitted to the Tribunal.  As this is a hearing de novo these documents are now before the decision maker prior to the making of any decision.  The BAS statements thus constitute new evidence before the Tribunal that was not previously available to the original Delegate. 

7. Having perused the BAS statements Tribunal is satisfied that the criterion in clause 888.224 is met and has concluded that the matter should now be remitted to the Department for reconsideration.

8. In these circumstance the Applicant’s wife and children, as family members of the primary applicant, also satisfy the necessary requirements of clause 888.311 in Schedule 2 of the Regulations.

   DECISION

9. The Tribunal remits the application for reconsideration, with the direction that the Applicants meets the following criteria for a Subclass 888 visa in Schedule 2 to the Regulations:

   ·The first-named Applicant satisfies the requirements of clause 888.224; and

   ·The other named Applicants each meet the requirements of clause 888.311.

   Andrew McLean Williams
   Member