Nong (Migration) - [2019] AATA 6802

Nong (Migration) [2019] AATA 6802 (6 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:
Mrs Shuli Nong

Mr Zihai Lin

Master Jiheng Lin

Miss Yinghui Lin
CASE NUMBER:  1818467
HOME AFFAIRS REFERENCE(S): BCC2017/259605 BCC2017/430558 BCC2017/430659 BCC2018/4129517
MEMBER:Mary Sheargold
DATE:06/12/2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:
·cl.892.211(1) of Schedule 2 to the Regulations.

Statement made on 06 December 2019 at 3:58pm

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 June 2018 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 19 January 2017. 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 in this case refused to grant the visas on the basis that the first named visa applicant did not satisfy the requirements of cl.892.211 of Schedule 2 to the Regulations because the delegate was not satisfied that the first named visa applicant had maintained direct and continuous involvement in the management of the main business relied on in the visa application during the relevant period.
The applicants appeared before the Tribunal on 6 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr He-Ming (Peter) Huang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent, Mr Harry Song. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
Non-disclosure certificate issued pursuant to s.376 of the Act
At the hearing, the Tribunal informed Ms Nong that the Department had placed a non-disclosure certificate issued pursuant to s.376 of the Act in relation to a document it had received on 20 July 2018. The non-disclosure certificate stated that s.376(1)(b) of the Act applied to the source information received in the Border Watch Allegations Team via mail on 20 July 2018, and stated that, as this information was given to the Department of Home Affairs, in confidence, s.375A of the Act did not apply. The non-disclosure certificate noted that the Tribunal’s use…

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 6802
Decision Date: 6 December 2019

CaseChat Overview and Summary

This matter concerned an application for a Business Skills (Residence) (Class DF) visa, specifically a Subclass 892 (State/Territory Business Owner) visa, brought before the Tribunal by the first named applicant. The core dispute revolved around whether the applicant had maintained the requisite ownership interest in an actively operating main business in Australia for the specified periods.

The Tribunal was required to determine whether the applicant possessed an ownership interest in a business operated through MWM Co Pty Ltd, a proprietary company, for at least two years immediately prior to the visa application and continued to hold that interest at the time of the application and at the time of the Tribunal's decision. This involved assessing whether the business was "actively operating" and met the definition of a "main business" under the Migration Regulations 1994.

The Tribunal applied the criteria set out in clause 892.211(1) of Schedule 2 to the Migration Regulations 1994, which mandates an ownership interest in an actively operating main business. It considered the definition of "ownership interest" as provided in section 134(10) of the Migration Act 1958 and regulation 1.03 of the Migration Regulations 1994, which includes being a shareholder in a company. The Tribunal found that the applicant had acquired and maintained a 70% shareholding in MWM Co Pty Ltd throughout the relevant periods, satisfying the ownership interest requirement.

Consequently, the Tribunal remitted the applications for reconsideration by the Minister, with a direction that the first named applicant met the criteria under clause 892.211(1) for a Subclass 892 visa. The Minister was to consider the remaining visa criteria, including those pertaining to secondary applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal decided to exercise its discretion, and pursuant to s.376(3)(b), it disclosed the matter contained in the document the subject of the non-disclosure certificate to the applicant. In doing so, the Tribunal noted that the matter so contained in that document was only peripherally relevant to the current issue, and noted that the information in that document was consistent with the reasoning of the delegate in refusing to approve the visa applications.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the first named visa applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application for a Subclass 892 visa was made.Ownership interest in main business Clause 892.211(1) requires that 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: cl.892.221(a). No more than two businesses can be nominated for this purpose (r.1.11(2)) and only 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: Yang v Minister for Immigration and Border Protection [2014] FCCA 1576. The business relied on by the applicant to satisfy these requirements is operated through a proprietary company, MWM Co Pty Ltd. The business sells, manufactures, and installs curtains and drapes. Accordingly, the Tribunal must consider the nature of the applicant’s interest in this business, whether the business was actively operating and whether it met the definition of ‘main business’ in the period commencing two years immediately prior to the date of application and as at the date of application. The Tribunal must also consider these issues as at the date of this decision and whether the applicant continues to satisfy cl.892.211(1). Does the applicant have an ownership interest in each business relied on at all relevant times? An ‘ownership interest’, in relation to a business, means an interest in the business as:·a shareholder in a company that carries on the business, or·a partner in a partnership that carries on the business, or·the sole proprietor of the business;including such an interest held indirectly through one or more interposed companies, partnerships or trusts (r.1.03 of the Regulations and s.134(10) of the Act). Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of r.1.11A of the Regulations, set out in the attachment to this decision: r.1.11A(1). In order to meet cl.892.211(1) the Tribunal must be satisfied that the applicant had an interest of this kind in the relevant business or businesses both at the time of making that application and for the two years immediately before. The business the subject of this application is operated through MWM Co Pty Ltd, a proprietary company. Therefore, the issue for consideration is whether the applicant had an ownership interest as a shareholder in MWM Co Pty Ltd at the relevant times.

Decision

Reasons for decision

Given the findings above, the Tribunal is satisfied that cl.892.211(1) is met. The appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa, including in relation to the secondary applicants. DECISION The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 visa:·cl.892.211(1) of Schedule 2 to the Regulations.Mary SheargoldMemberATTACHMENT - LEGISLATIONMigration Regulations 19941.03DefinitionsIn these Regulations, unless the contrary intention appears:…ownership interest has the meaning given to it in subsection 134(10) of the Act.…qualifying business means an enterprise that:(a) is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and(b) is not operated primarily or substantially for the purpose of speculative or passive investment.…1.11Main business(1)For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:(a)the applicant has, or has had, an ownership interest in the business; and(b)the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and(c)the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:(i)if the business is operated by a publicly listed company—at least 10% of the total value of the business; or(ii)if:(A)the business is not operated by a publicly listed company; and(B)the annual turnover of the business is at least AUD400 000;at least 30% of the total value of the business; or(iii)if:(A)the business is not operated by a publicly listed company; and(B)the annual turnover of the business is less than AUD400 000;at least 51% of the total value of the business; and(d)the business is a qualifying business.(2)If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.1.11A Ownership for the purposes of certain Parts of Schedule 2(1)Subject to subregulation (4), for Parts 132, 188, 888, 890, 891, 892 and 893 of Schedule 2, ownership by an applicant, or the applicant’s spouse or de facto partner, of an asset, an eligible investment or an ownership interest, includes beneficial ownership only if the beneficial ownership is evidenced in accordance with subregulation (2).(2)To evidence beneficial ownership of an asset, eligible investment or ownership interest, the applicant must show to the Minister:(a)a trust instrument; or(b)a contract; or(c)any other document capable of being used to enforce the rights of the applicant, or the applicant’s spouse or de facto partner, as the case requires, in relation to the asset, eligible investment or ownership interest;stamped or registered by an appropriate authority under the law of the jurisdiction where the asset, eligible investment or ownership interest is located.(3)A document shown under subregulation (2) does not evidence beneficial ownership, for subregulation (1), for any period earlier than the date of registration or stamping by the appropriate authority.(4)Beneficial ownership is not required to be evidenced in accordance with subregulation (2) if the person who has legal ownership of the asset, eligible investment or ownership interest in relation to which the applicant, or the applicant’s spouse or de facto partner, has beneficial ownership:(a)is a dependent child of the applicant; and(b)made a combined application with the applicant; and(c)has not reached the age at which, in the jurisdiction where the asset, eligible investment or ownership interest is located, he or she can claim the benefits of ownership of the asset, eligible investment or ownership interest.Migration Act 1958134Cancellation of business visas….(10)In this section:….ownership interest, in relation to a business, means an interest in the business as:(a) a shareholder in a company that carries on the business; or(b) a partner in a partnership that carries on the business; or(c) the sole proprietor of the business;including such an interest held indirectly through one or more interposed companies, partnerships or trusts.

Ratio Decidendi

Legal Principle Established

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