Liu (Migration)

[2020] AATA 4639

Liu (Migration) [2020] AATA 4639 (26 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Ms Yuan Liu

Mr Zhijian Chen

Miss Zichun Chen

CASE NUMBER:  1914406

HOME AFFAIRS REFERENCE(S): BCC2017/2155056 BCC2019/2693854

MEMBER:Robyn Anderson

DATE:26 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Residence) (Class DF) visas.

Statement made on 26 August 2020 at 4.15pm.

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 State/Territory Sponsored Business Owner visa – Australian business and personal assets at least AUD250,000 – net business assets in the main business – Business Activity Statements included in the application – deemed time of notification – business activity as a going concern – close temporal connection – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 362, 379
Migration Regulations 1994, Schedule 2, cls 892.211, 892.212, 892. 311

CASES

Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562
Berenguel and Minister for Immigration and Citizenship [2010] HCA 8
Nasirzadeh v MIBP [2019] FCCA 1115
Yang v Minister for Immigration and Citizenship [2010] FMCA 890

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 on 22 May 2019 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 June 2017. At the time of application, Class DF contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Sponsored Business Owner) and Subclass 893 (State/Territory Sponsored Investor). The applicants in this case are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Sponsored 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.

3. The delegate in this case refused to grant the visas on the basis that the first named visa applicant, Ms Liu (the applicant), did not satisfy the requirements of cl.892.212 of Schedule 2 to the Regulations because the delegate was not satisfied that the business and personal assets of the applicant and her spouse had a net value of at least AUD250,000 throughout the 12-month period immediately prior to the application date. Nor was the delegate satisfied that the net business assets of the applicant and her spouse in the “main business” had a net value of at least AUD75,000 throughout the 12-month period immediately prior to the application date. This meant that two of the three requirements under cl.892.212 could not be met.

4. The Tribunal acknowledged receipt of the review applications to the existing authorised representative (I-migration Pty Ltd) on 12 June 2019. The Tribunal received details of a change in the appointment of an authorised representative for the applicants on 17 October 2019, being Dr Deng of Australian Pathway Consulting Pty Ltd. On 14 February 2020, the Tribunal received details of a further change in the appointment of an authorised representative for the applicants, being Mr Wu of Global Immi Solutions. However, the updated details were not registered.

5. On 24 April 2020, the case was constituted to a Tribunal Member, and on 11 May 2020, the Tribunal wrote to the applicants, under s.359A of the Act, providing particulars for comment or response by 25 May 2020, to certain information which the Tribunal considers would, subject to comments or response, be the reason or a part of the reason for affirming the decisions under review. The letter was sent to Dr Deng of Australian Pathway Consulting Pty Ltd. The Tribunal noted in particular the requirement under cl.892.211(2) of Schedule 2 to the Regulations that “all Business Activity Statements required by the ATO for at least two years immediately before the application is made have been submitted to the ATO and have been included in the application.” The Tribunal noted that:

   According to the Department file, while copies of the Business Activity Statements in respect of the quarters ending 30 September 2015, 31 December 2015, 30 September 2016, 31 December 2016 and 31 March 2017 were provided with the application, Business Activity Statements required to be included with the application in respect of the quarters ending 30 June 2015, 31 March 2016 and 30 June 2016 were not provided until February 2019 following a written request from the Department in December 2018.

6. The Tribunal also alerted the applicant to the relevance of the recent case of Nasirzadeh v MIBP [2019] FCCA 1115 (Nasirzadeh) and requested further financial information in the same letter of 11 May 2020 under s.359(2) of the Act. 

7. While the Tribunal erred in sending the correspondence of 11 May 2020 to the wrong recipient due to an administrative error in not registering the authorised representative in February 2020, at 8.00pm on 11 May 2020, Mr Wu of Global Immi Solutions emailed the Tribunal and advised of his appointment as the authorised representative of the applicants. At the same time, a request was made under s.362A of the Act for a copy of the AAT file.  Mr Wu made no reference to his earlier correspondence of 14 February 2020 and the documents submitted were all signed and dated 11 May 2020. The contact with the Tribunal on 11 May 2020 appears to have been prompted by receipt of the Tribunal’s letter of the same day.  Furthermore, Mr Wu has not indicated at any time that he did not receive the letter from the Tribunal on 11 May 2020.

8. The Tribunal considered the revised explanatory memorandum to the Migration Amendment (Notification Review) Bill 2008 (the Bill), in particular in relation to s.379C(7) of the Act.  The purpose of the amendments, in part, was to provide greater clarity and consistency in regard to the application of the notification provisions, in an effort to obstruct delays in resolution of cases as a result of technical issues where no apparent prejudice is evident.

9. One of the two key changes to the notification regime through the Bill was to provide that the deemed time of notification provisions would be enlivened, “despite non-compliance with a procedural requirement for giving a document to a person where the individual has actually received the document unless the person is able to show they received the document at a later date in which case they will be taken to have received the document at that date”.

10. The purpose of the Bill, as relevant to s.379C of the Act, is reiterated at Item 9, which states: “the deemed time of notification provisions in the Act will apply where there has been actual notification, despite a defect in procedures for giving the person the notice, unless the person can show that he or she received it at a later time.“ 

11. No further contact was made with the Tribunal until 26 May 2020. At 11.38am on 26 May 2020, one day after the prescribed timeframe to respond to the Tribunal’s letter of 11 May 2020, Mr Wu contacted the Tribunal. He acknowledged receipt of the letter dated 11 May 2020 and also advised that while the majority of requested documents would be provided over the next day, an extension of time to provide the remaining documents would be requested at a later date. On the same day, various financial documents were provided, and an extension of time requested in respect of the 2016/2017 financial statements and general ledger loan accounts of GL Global Group Pty Ltd and evidence in respect of the source of funds loaned to GF Global Group Pty Ltd. There was no acknowledgement of the information put to the applicant under s.359A of the Act on 11 May 2020.

12. In the circumstances of this case, the Tribunal finds that Mr Wu, as the appointed representative of the applicants, is deemed to have received the letter of 11 May 2020, “as if the Tribunal had given the document to the person without making an error in doing so”, as provided in s.379C(7) of the Act.

13. As the response from the applicant was after the allowed response period, which ran to 25 May 2020, and no request for an extension of time was received prior, the Tribunal is satisfied that the applicant failed to respond to the Tribunal’s invitation under s.359A within the prescribed timeframe and therefore s.359C of the Act applies. As a consequence, and pursuant to s.360(3) of the Act, the applicant is not entitled to appear before the Tribunal to give evidence and present arguments in support of their case.

14. In response to a request from the Tribunal on 28 May 2020, Mr Wu provided consent from the applicants to release personal information, on 1 June 2020. Accordingly, on 2 June 2020, copies of the written material requested under s.362A were sent to the applicants’ authorised representative at Global Immi Solutions. As the Tribunal was yet to receive a response in regard to the information raised in respect of missing business activity statements in the application, as raised under s.359A of the Act on 11 May 2020, the Tribunal wrote again to the applicants on 3 June 2020. Given that the written material requested under s.362A had now been provided, in the circumstances, the Tribunal did not exercise its discretion under s.359C(2) of the Act and decided to allow a further 14 days for a response in regard to the information relevant to the requirements under cl.892.211(2)(b) of Schedule 2 to the Regulations.

15. On 4 June 2020, Mr Wu replied to the Tribunal and provided various documents.  In addition, he submitted as follows:

    Just a kind reminder please do check the email / submission I sent on 26 May, in which 13 documents have been enclosed, including BAS documents in respect of the quarters ending 30 June 2015, 31 March 2016 and 30 June 2016.

    However, to satisfy cl 892.211(2)(b) the BAS document ending 30 June 2017 will also be requested. Here you go.

16. The Tribunal wrote to the applicant on 4 June 2020, clarifying the opportunity granted by the Tribunal on 3 June 2020 for a response to the information relevant to the requirements under cl.892.211(2)(b) of Schedule 2 to the Regulations. The letter stated as follows:

    ·     The Tribunal acknowledges receipt of your email dated 4 June 2020 and information provided on 26 May 2020 and 4 June 2020.

    ·     As set out in the Tribunal’s letter of 11 May 2020 and 3 June 2020, if the Tribunal relies on the information in the departmental file whereby three business activity statements in respect of the period 16 June 2015 to 15 June 2017 that were required to be included in the application in accordance with cl.892.211 of Schedule 2 to the Migration Regulations 1994 were omitted, then it would be a reason, or part of a reason for affirming the decision that is under review on the basis that the requirements under cl.892.211(2)(b) of Schedule 2 to the Migration Regulations 1994 are not met.  The Tribunal also alerted you to the relevance of the recent case of Nasirzadeh 2019 FCCA 1115

    ·     The issue is not about whether the relevant business activity statements were provided after the application date, as it is clear from the Department file that they were provided in February 2019.  Rather, the issue is that it appears that business activity statements in respect of the quarters ending 30 June 2015, 31 March 2016 and 30 June 2016 were not “included in the application” at 16 June 2017, as required under cl.892.211(2)(b) of Schedule 2 to the Migration Regulations 1994.

    ·     In accordance with the Tribunal’s previous correspondence of 3 June 2020, you have been granted 14 days from 3 June 2020 for lodgement of a submission regarding the requirements under cl.892.211(2)(b) of Schedule 2 to the Migration Regulations 1994.

    ·     If no submission regarding this issue is received by close of business on 17 June 2020, the Tribunal will proceed to make a decision based on the information before it. Unless cl.892.211(2)(b) of Schedule 2 to the Migration Regulations 1994 can be met, it is futile to consider any of the other primary criteria under cl.892.2 of Schedule 2 to the Migration Regulations 1994 and the remainder of the information for which you have requested an extension of time to provide would then no longer be required. 

17. Mr Wu provided a submission on 17 June 2020.  In response, the Tribunal requested evidence of the original online application lodged on behalf of the applicants by Mr Wu.  On the same day, 19 June 2020, the Tribunal wrote to the Department requesting confirmation of whether the relevant Business Activity Statements, being for the quarters ending 30 June 2015, 30 September 2015, 31 December 2015, 31 March 2016, 30 June 2016, 30 September 2016, 31 December 2016 and 31 March 2017, were all received at the time when the application was made.

18. Mr Wu responded to the Tribunal on 24 June 2020 that the application was lodged by post.  He did not take up the opportunity to provide evidence of the original application submitted to the Department.

19. In the meantime, it became apparent that three folios of the file provided to the applicants under s.362A of the Act on 2 June 2020 had been inadvertently omitted by the Tribunal.  The omitted folios were scanned accordingly and released to the applicant on 16 July 2020.

20. The Tribunal provided the Department’s response to the applicants on 17 July 2020, that the Business Activity Statements for the preceding two years before lodgement of the application in June 2017 were not included in the original application (discussed below in paragraph 45). The Tribunal included a letter in accordance with s.359A of the Act inviting comments and/or a response by 31 July 2020. No further communication was received by the Tribunal. Consequently, the Tribunal proceeded to make a decision.

21. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    ISSUE

22. The issue in this case is whether the applicant meets the primary criteria in cl.892.21 of Schedule 2 to the Regulations, being at the time of application. The requirements under cl.892.21 are not mutually exclusive and must all be met before the applicant can satisfy the necessary criteria at the time of application.

23. While the central issue raised by the Department was in relation to the net personal assets and the net assets of the applicants in the main business (cl.892.212 of Schedule 2 to the Regulations), the Tribunal had raised a preliminary issue from the outset. As noted above, in accordance with s.359A of the Act, the Tribunal put to the applicants that as the evidence in the Department file indicates that not all of the required Business Activity Statements were included in the application, if it were to rely on this information in making a decision, it may find that the applicant does not meet the requirement under cl.892.211(2)(b) of Schedule 2 to the Regulations and affirm the delegate’s decision. The Tribunal also noted the recent case of Nasirzadeh.

24. As noted in a letter to the applicants from the Tribunal on 4 June 2020, unless cl.892.211(2)(b) of Schedule 2 to the Regulations can be met, it is futile to consider any of the other primary criteria under cl.892.21 of Schedule 2 to the Regulations. If the applicant cannot satisfy all of the criteria at the time of application, it is unnecessary for the Tribunal to proceed to consider any other issues, including the net assets provisions.

25. Clause 892.211 of Schedule 2 to the Regulations sets out two main criteria. Firstly, it requires the applicant, for at least two years immediately before the application was made, to have an ownership interest in the main business (cl.892.211(1) of Schedule 2 to the Regulations). As noted above, the applicants lodged an application for a Subclass 892 visa on 16 June 2017. Therefore, the relevant period in respect of cl.892.211 of Schedule 2 to the Regulations is 16 June 2015 to 15 June 2017 (the relevant period).

26. Secondly, for each of the nominated main businesses, an Australian Business Number must have been obtained (cl.892.211(2)(a) of Schedule 2 to the Regulations) and, as noted above, the Business Activity Statements required by the ATO in the relevant period have been submitted to the ATO and have been included in the application (cl.892.211(2)(b) of Schedule 2 to the Regulations).

27. It is the requirement under cl.892.211(2) of Schedule 2 to the Regulations that is the central issue in this case. In particular, the requirements set out in cl.892.211(2)(b) of Schedule 2 to the Regulations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. Ms Liu nominated GF Global Group Pty Ltd as “the main business” in her application. For the purpose of assessing the criteria in cl.892.211(2) of Schedule 2 to the Regulations, the Tribunal considered GF Global Group Pty Ltd as “the main business”.

    Australian Business Number and Business Activity Statements

29. There is no question that GF Global Group Pty Ltd was registered with an Australian Business Number on 1 November 2010 and continues to be registered, thereby satisfying the criterion under cl.892.211(2)(a) of Schedule 2 to the Regulations. The Tribunal finds accordingly.

30. ATO Portal generated Business Activity Statements in the relevant period clearly demonstrate that all Business Activity Statements required by the ATO for the relevant period were submitted to the ATO prior to the visa application date of 16 June 2017. As such, the Tribunal finds that the first limb of cl.892.211(2)(b) of Schedule 2 to the Regulations is met.

31. The second limb of cl.892.211(2)(b) of Schedule 2 to the Regulations requires that the Business Activity Statements for the relevant period, whether generated from the ATO Portal, an accountant’s software package or manually prepared forms, “have been included in the application”. This is the central issue in this case.

32. In the case of Nasirzadeh, the applicant lodged a Subclass 892 visa application on 16 September 2014.  On 24 March 2015, the Department requested further information, including copies of all Business Activity Statements for the relevant period.  The Business Activity Statements were provided on 22 May 2015, some eight months after the visa application was lodged.  While the Department refused to grant the application on the basis that no documentation was provided in support of either of the two nominated main businesses or the management and operation of the businesses, a differently constituted Administrative Appeals Tribunal affirmed the decision on the basis of failing to include the Business Activity Statements in the application. 

33. The decision was upheld in the Federal Circuit Court of Australia at Sydney on 22 May 2019.  The court found that cl.892.211(2)(b) imports an “objective temporal test” as to “whether or not the BAS were included with the visa application.” The court went on to hold that the regulation importing the test was valid, and that late submission of the Business Activity Statements did not meet the requirement in the regulation. The court further noted that provision of the Business Activity Statements after the visa application date was not an issue considered by the delegate, as in this case, but was nonetheless a relevant consideration in determination of the application on review. In determining that the regulation was valid, the court noted:

    In my view, the criterion in issue serves a clear purpose of requiring applicants for this class of visa to establish business activity as a going concern over a period of two years prior to their visa application.  Further, while there may be harsh consequences, as the applicants have sought to demonstrate in this case, that is not enough to establish invalidity.

1. The Tribunal acknowledges that the court’s comments in Nasirzadeh were made in the context of whether or not the criterion in cl.892.211(2)(b) of Schedule 2 to the Regulations was invalid on the basis of unreasonableness. The regulation was ultimately found to be valid. Nevertheless, the court was specific in stating that an “objective temporal test” exists, which requires one to answer the question of “whether or not the BAS were included with the visa application.” There is no doubt that a simple question of fact must be answered.

2. According to the departmental file, Business Activity Statements in respect of the quarters ending 30 September 2015, 31 December 2015, 30 September 2016, 31 December 2016 and 31 March 2017 were included in the application.  However, the required Business Activity Statements in respect of the quarters ending 30 June 2015, 31 March 2016 and 30 June 2016 were not.  Consequently, the Department wrote to the applicant on 5 December 2018 requesting additional information, including copies of all Business Activity Statements lodged during the two years preceding application for the main business, GF Global Group Pty Ltd.  It is evident that all relevant Business Activity Statements were provided in response to the request, amongst other information, receipted by the Department on 25 February 2019.  The accompanying letter from I-Migration Pty Ltd noted, in part, as follows:

   As the application was lodged on 16 June 2017, BAS for a 2-year period between Mar 2015 – Mar 2017 have been included with this application, as that is the most recent full 2-year period prior to lodgement.

3. The Tribunal notes clause 12 of Form 1217 [Business Skills Profile: Business Owner (Residence)] that states:

   Attach certified copies of all Business Activity Statements submitted to the Australian Taxation Office by any business in which you have an ownership interest in the last 2 years.

4. The Tribunal considered the specific wording of the legislation. “Included in” is not a complex legal term. The Macquarie Dictionary defines “include” as to contain, to be a part of. The Cambridge English Dictionary defines “include” as to contain something as a part of something else. In the Tribunal’s view, in the context of cl.892.211(2)(b) of Schedule 2 to the Regulations, a reasonable person would understand it to mean just that – the Business Activity Statements to be contained as a part of the complete application. The note under clause 12 of Form 1217 uses the word “attach” to convey a similar meaning as “included in” or “with” the application form.

5. The Tribunal finds that the second limb of cl.892.211(2)(b) of Schedule 2 to the Regulations requires the applicant to include in (meaning attach with) the visa application at the time of lodgement, all Business Activity Statements required by the ATO for the relevant period.

6. In a submission from Mr Wu, dated 17 June 2020, he states that as the initial migration agent who assisted the applicants to lodge their application on 16 June 2017, he was well aware of the time of application requirement to include the Business Activity Statements with the application.  He further stated that he recalls that one of the required Business Activity Statements was not available until the last minute, due to late lodgement to the ATO and there was nothing that prevented all of the required Business Activity Statements from being included in the application.

7. The Tribunal observed that three of the Business Activity Statements, being the quarters ending 30 September 2016, 31 December 2016 and 31 March 2017 were lodged on 23 May 2017, while the Business Activity Statement in respect of the quarter ending 30 June 2016 was lodged on 31 May 2017.  This is over two weeks prior to the lodgement of the visa application on 16 June 2017.

8. Mr Wu went on to contend that given that five of the eight required Business Activity Statements were included in the application, this distinguishes the case from that of Nasirzadeh. In the Tribunal’s view it is not a question of whether the Business Activity Statements were available for inclusion and, as already discussed, it is common ground that all had been lodged with the ATO prior to the application date of 17 June 2017.  The question is purely factual: were all of the required Business Activity Statements included in the application or were they not? It matters little whether none or some of the Business Activity Statements were included in the application.  The omission of three of the required Business Activity Statements impacts on the ability of the applicants to establish business activity as a going concern over a period of two years prior to their visa application.  This is particularly so given that two of the omitted Business Activity Statements were in consecutive quarters, representing the first six months of 2016.  As such, the Tribunal does not consider that this case is distinguished from Nasirzadeh on this basis.

9. Mr Wu acknowledged that omission by his client might be a possibility, however, stated that there is nothing that leads to one drawing such a conclusion.  Rather, he strongly pins the blame on administrative error by the Department.  The basis for this contention was that the Department had already erred in excluding the third applicant from the initial application.  He further pointed out that the delegate simply requested all Business Activity Statements in December 2018 and did not indicate that any had not been included in the original application.  Mr Wu surmised that this could be interpreted as the delegate’s awareness of internal errors that may have misplaced the three omitted Business Activity Statements.

10. He further noted that the case notes at the initial assessment do not indicate that any Business Activity Statements are missing. As such, he asserted that it is unfair that the applicant be liable for any omissions. Furthermore, as the delegate refused the application on the basis of cl.892.212 of Schedule 2 to the Regulations, Mr Wu stated that this “logically aligns with our claim of satisfaction of cl.892.211(2)(b) of Schedule 2 at TOA, as the letter of refusal would address dissatisfaction only.”

11. In contrast, in a later submission on 24 June 2020, Mr Wu stated that there was nothing in his submission of 16 June 2020 to suggest that all of the Business Activity Statements were lodged at the time of application.

12. In response to a request from the Tribunal to the Department for clarification as to when the required Business Activity Statements were lodged, the Department replied via email on 8 July 2020 as follows:

    We have determined from the decision maker’s (DM) notes that the BAS statements for the preceding two years before lodgement of this application in June 2017 were not included in the original application. These documents amongst others were requested by the DM on 05/12/2018 and received in paper format by the department on 25/02/2019.

13. The Tribunal sent the information received from the Department to the applicant under s.359A on 17 July 2020 allowing 14 days for comment. No further comment was received.

14. The Tribunal considered the evidence before it, none of which provides any kind of basis to determine that all of the required Business Activity Statements were included in the application on 16 June 2017.  Furthermore, Part 6 of the Code of Conduct for Migration Agents requires the agent to maintain proper records that can be made available for inspection on request by the Authority, relevantly, including files containing a copy of each client’s application, for a period of up to seven years after the date of the last action on the file.  As Mr Wu did not take up the opportunity to provide a copy of the application and the accompanying documents to the Tribunal, the Tribunal can only conclude that the Business Activity Statements that were omitted in the Department’s file were in fact not included in the initial application.  Therefore, the Tribunal is satisfied that all of the eight required Business Activity Statements were not included in the application on 16 June 2017 and finds accordingly.

15. The Tribunal acknowledges that the eight required Business Activity Statements were provided to the Department on 25 February 2019. In respect to the second limb of cl.892.211(2)(b) of Schedule 2 to the Regulations, the wording expressly states very clearly that the Business Activity Statements are to be “included in the application”, providing a necessary grammatical connection to the heading “Criteria to be satisfied at time of application”, as discussed in the case of Berenguel and Minister for Immigration and Citizenship [2010] HCA 8 (Berenguel).  In Berenguel, the court distinguished cls.885.214 and 885.215 from cl.885.213 of Schedule 2 to the Regulations in that in addition to being time of application criteria, the legislation also specifically states that the application is “to be accompanied by” further evidence and noted that no such requirement in respect of proof of compliance exists in the wording of cl.885.213.

16. In the case of Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562 (Anand), the court considered the requirement under cl.487.216 of Schedule 2 to the Regulations which, as in cls.885.214 and 885.215 considered in Berenguel, required the application to be “accompanied by” evidence that the applicant and all persons included in the application who are at least 16 have applied for an Australian Federal Police Check during the 12 months immediately before the day when the application is made.  The court found that although such an application had been made prior to the date of application, as no evidence accompanied the application form, the requirement could not be satisfied. 

17. In the case of Anand, Katzmann J took a fairly broad view of the word “accompanied”, considering that evidence supplied around the time of application may be sufficient.  However, she concluded that the words, “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made.”

18. According to the Macquarie Dictionary, “accompanied” means “to go or exist in company with.” The Cambridge English Dictionary defines “accompanied” as ”to be provided or exist at the same time as something”, that is to be “with” something. The Tribunal considers that “accompanied by (with)” and “included in” (the latter discussed in paragraph 37 above), have essentially the same meaning and are likely understood as such by any reasonable person. Therefore, the Tribunal does not accept that interpretation of the meaning and intention of the second limb of cl.892.211(2)(b) of Schedule 2 to the Regulations in the case of the applicant is any different to that of cls.885.214 and 885.215, which were distinguished from the central findings in Berenguel, nor to cl.487.216 as discussed in Anand.

19. The Tribunal found above that all of the eight required Business Activity Statements were not included in the application on 16 June 2017.  While five were included at the time of application, the remaining three were provided in February 2019, some 20 months after the date of the visa application. Even if the Tribunal was to follow Anand and apply some flexibility, the Tribunal concludes that 20 months after the time of application does not have the close temporal connection as referred to in Anand to enable such a consideration. Therefore, the Tribunal finds that the criterion under the second limb of cl.890.211(2)(b) of Schedule 2 to the Regulations is not met.

20. As part of the submission of 24 June 2020, Mr Wu requested that the Tribunal exercise its discretion in the best interest of the client “to have a real chance and opportunity to represent their case and claims, aligning with the AAT’s objectives.”

21. If Mr Wu is referring to an opportunity for the applicants to appear at hearing, there is no discretion available to the Tribunal (Yang v Minister for Immigration and Citizenship [2010] FMCA 890). As discussed above, Mr Wu is deemed to have received the letter of 11 May 2020 in accordance with s.379C(7) of the Act. Furthermore, Mr Wu did not indicate at any time that he did not receive the letter on 11 May 2020. Section 359C(2) of the Act refers to an applicant who is invited under s.359A to comment or respond to information and fails to do so before the time for doing so has passed, as occurred in this case. Section 360(3) of the Act states that in the event that s.359C(2) applies to the applicant, the applicant is not entitled to appear before the Tribunal. There is no provision for discretion.

22. If Mr Wu is referring to a discretion in relation to cl.892.211(2)(b) of Schedule 2 to the Regulations in respect of the provision of Business Activity Statements, the terms are clear, without ambiguity. It is not the Tribunal’s position to go behind such a clear intent. The Tribunal sympathises with the difficult circumstances in which the applicants find themselves. The Tribunal is also cognisant of the “harsh consequences” to the applicants, as alluded to by Driver J in Nasirzadeh. However, the Tribunal has no discretion to consider compassionate or compelling circumstances when determining whether or not cl.892.211(2)(b) of Schedule 2 to the Regulations is satisfied.

    CONCLUSION

23. As the applicant fails to meet cl.892.211(2)(b) of Schedule 2 to the Regulations, it means that she cannot satisfy cl.892.211 of Schedule 2 to the Regulations. As one of the primary and essential criteria to be satisfied at time of application is not met, regardless of whether or not the net assets provisions are met, the criteria to be satisfied at time of application in accordance with Subdivision 892.21 of Schedule 2 to the Regulations cannot be met and the decision under review must be affirmed.

24. Further, because the first named applicant is unable to satisfy the time of application criteria, the second and third named applicants are unable to satisfy cl.892.311 of Schedule 2 to the Regulations. This is because they are not members of a family unit of a person who holds a Subclass 892 visa granted on the basis of satisfying the primary criteria under Subdivision 892.21 of Schedule 2 to the Regulations. Therefore, the decision in relation to the secondary applicants must also be affirmed.

    DECISION

25. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

    Robyn Anderson
    Member