Nguyen (Migration)

[2024] AATA 2244

Nguyen (Migration) [2024] AATA 2244 (20 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Thu Hong Nguyen
Mr Phuc Binh Ha
Mr Phuc An Ha
Mr Phuc Quang Ha
Miss Ngoc Phuong Linh Ha

REPRESENTATIVE:  Mr Duy Thanh San (MARN: 1796383)

CASE NUMBER:  2110805

HOME AFFAIRS REFERENCE(S):          BCC2019/140668

MEMBER:Amanda Mendes Da Costa

DATE:20 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Business Innovation and Investment (Permanent) (Class EC) (Subclass 888) visas.

The Tribunal refers the matter to the Department for consideration by the Minister under s351 of the Act.

Statement made on 20 June 2024 at 11.10am

CATCHWORDS
MIGRATION – Business Skills (Permanent) visa – Subclass 888 – applicants declined hearing invitation – had only spent 363 days in Australia in the two-year immediately prior to the visa application – a shortfall of one day in satisfying cl 888.221 – applicants have made a significant commitment to living and in Australia and contributing to the Australian community – Ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 888.221

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 16 August 2021 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).

2. The visa applicant applied for the visa on 22 January 2019. The delegate refused to grant the visa on the basis that the fist named applicant did not satisfy cl 888.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. On 5 April 2024, the Tribunal wrote to the applicants by letters advising that it had considered all the material before it relating to their application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 5 June 2024. On 3 June 2024, the Tribunal was advised by the applicants (in writing) that they did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. The matter has therefore been determined on the evidence available to the Tribunal.

4. The applicants were represented in relation to the review.

5. The documentation provided by the applicants for the purpose of the review includes written submissions dated 24 May 2024 with enclosures. The Tribunal has also considered the information contained in the Departmental and Tribunal files for the applicant.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the first named applicant (the applicant) satisfies the criteria in cl 888.221 of Schedule 2 to the Regulations.

8. Clause 888.221 requires that the applicant has been in Australia, as the holder of one or more visas mentioned in the table in subitem 1104BA(4) of Schedule 1, for a total period of at least one year in the two years immediately before the application was made.

   Background

9. The applicant’s visa application was lodged on 22 January 2019 the two years ending immediately before the application is made is from 22 January 2017 to 21 January 2019.

10. The Tribunal notes that on 15 May 2020 the Department wrote to the applicant, inviting her to comment on the following information:

    Clause 888.221 states that the applicant must have resided in Australia for at least one year in the two years immediately before the visa application was made. Departmental movement records indicate that during the period 22 January 2017 to 21 January 2019 the applicant had only been in Australia for a period of 363 days which is less than the one year required to satisfy cl 888.221.

11. On 14 July 2020, the applicant responded to the Department’s invitation, providing written submissions and further documents in support of her visa application.

12. In the written submissions to the Department, the applicant acknowledged that before lodging her visa application she was advised by her previous migration agent that she met all of the requirements for the grant of the visa and that her former agent made an error in calculating the period of time she had spent in Australia in the two years immediately prior to the visa application. She further submitted that it was unthinkable that she would have allowed her former agent to lodge the visa application on her behalf if she was aware that she had only spent 363 days in Australia in the two-year immediately prior to the visa application.

13. The applicant submitted that from the date of lodgement of the visa to date, she had spent a substantial number of days in Australia on her business activities. She sought that the delegate exercises her power to waive the requirements of cl 888.221 for the applicant.

14. The delegate found that there was no provision which gave her the discretion to grant a waiver of the requirements of cl 888.221. The delegate was not satisfied that the applicant had been onshore in Australia for one years in the two years immediately prior to the visa application being made, and she therefore did not meet the requirements of cl 888.221.

    Applicant’s submissions to the Tribunal

15. In applicants written submissions to the Tribunal dated 29 May 2024 may be summarised as follows:

    ·They acknowledge that the applicant is unable to satisfy cl 888.221 because she did not reside in Australia for at least one year in the two years immediately before the application was made.

    ·The applicants’ former migration agent incorrectly assessed that the applicant satisfied cl888.221 when they lodged the visa application on behalf of the applicants on 22 January 2022. However, there was a shortfall of one day in satisfying cl 888.221.

    ·The applicant’s subclass 188 visa at the time of lodgement of the visa application did not cease until 2 November 2019 which meant she had a further nine months to reside in Australia for an additional one day to satisfy the criteria in cl 888.221 and was present in Australia at the time of the visa application.

    ·Exceptional economic benefit would result from the applicants being permitted to remain in Australia on the basis that since being granted a subclass 188 visa the applicant has invested a significant number of businesses and personal investments. This includes the construction of modular homes, property development, business investments, wage contributions and taxation payments.

    ·The applicants have integrated into the Australian community, having lived her for more than nine years on temporary visas. They have also complied with all visa conditions and Australian laws.

    ·Had the applicant satisfied cl 888.221 she and the other applicants would have met the remaining criteria at the time of the delegate’s decision.

    Findings

16. Based on the Department’s movement records for the applicant and the admissions made by the applicant in its written submissions to both the Department and the Tribunal is satisfied that the applicant was onshore in Australia during the period 22 January 2017 to 21 January 2019 for a total of 363 days in the two years immediately before the visa application was made.

17. Accordingly, the Tribunal is not satisfied that the applicant was in Australia as the holder of one or more visas mentioned in the table of subitem 1104BA(4) of Schedule 1, for a total period of at least one year in the two years immediately before the visa application was made.

    Conclusion

18. Based on the above findings the Tribunal is not satisfied that the applicant meets the requirements of cl 888.221.

19. Given its findings regarding the first named applicant the Tribunal is not satisfied that that the second named, third named, fourth named and fifth named applicants meet the secondary requirements for the grant of Business Innovation and Investment (Permanent) (Class EC) (Subclass 888) visas.

    Request for Ministerial intervention

20. The applicants have requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicants, if the Minister thinks that it is in the public interest to do so.

21. The applicant’s submissions indicate:

    ·The applicant intends to develop and construct modular homes in Victoria, potentially in the regional area of Lara or Geelong. These homes are intended to alleviate the housing shortage in Victoria and to provide accommodation for agricultural workers in the regional area. The Tribunal notes that it has been provided with the proposed residential design and feasibility report prepared by the architect responsible for designing the modular homes (Documents 6a and 6b to the enclosures to the submissions).

    ·The letter from the applicants’ accountants dated 29 May 2024 (enclosure 9 to the submissions) shows that the applicant has invested more than AUS 4Million in Australian businesses since 2015. In conjunction with these investments the companies i which the applicant has invested have incurred a total wage expense of AUS1,722,394.

    ·The fourth named applicant has established a business (QM Pty Ltd) which developed eight townhouses which were completed and sold in October 2021. The sale price of these townhouses ranged between AUS720,000 and AUS780,000.

    ·The applicants submit that if granted the visa, the fourth named wishes to undertake further building projects in Victoria. The documentation provided in relation to QM Pty Ltd include Extracts of a Contract of Sale, ASIC records and a mortgage agreement between the applicant and QM Pty Ltd (enclosure 7 to the submissions).

    ·The applicant has acted as a lender to QM Pty Ltd in the amount of AUS4Million which was repaid after the eight townhouses were sold.

    ·The applicant has also purchased (and sold for profit) four properties in Australia in the period 2015 to 2022. The letters for the applicants’ accountants (enclosure 9 to the submissions) shows that the applicant and her family manage several investment trusts (Hong Quang Trust and Hong Phat Trust) which have generated a combined income of AUS663,474 which has been distributed to the applicants.

    ·The applicants’ personal assets in Australia exceed AUS6Million comprised of AUS4.7Million in real property, AUS119,414.00 in bank accounts and AUS1.25Million in motor vehicles.

    ·Additionally, the applicant owns a residential property in Maribyrnong which was purchased in 2018 for AUS4.15Million and another property in Koralagh, NSW, valued at AUS550,000.

22. Based on the material provided, the Tribunal considers the applicants have made a significant commitment to living and in Australia and contributing to the Australian community.

23. Accordingly, the Tribunal is satisfied that exceptional economic benefit to Australia would result from the applicants being permitted to remain in Australia.

24. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

25. The Department affirms the decision not to grant the applicants Business Innovation and Investment (Permanent) (Class EC) (Subclass 888) visas.

26. The Tribunal refers the matter to the Department for consideration by the Minister under s351 of the Act.

    Amanda Mendes Da Costa
    Member