Ruan (Migration) - [2021] AATA 2683

Ruan (Migration) [2021] AATA 2683 (8 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Honggang Ruan
Ms Lu He
Miss Xiaoyuan He
CASE NUMBER:  1827563
DIBP REFERENCE(S):  BCC2017/3965377 BCC2018/4185472 BCC2018/4185486 BCC2018/4970151 BCC2018/5016381
MEMBER:Robyn Anderson
DATE:8 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants’ Business Skills (Permanent) Subclass 888 visas.

Statement made on 8 July 2021 at 5.26pm.

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 September 2018 to refuse to grant the applicants’ Business Skills (Permanent) Subclass 888 visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 26 October 2017. The delegate refused to grant the visas on the basis that Mr Ruan, the primary applicant, did not meet the requirements under cl.888.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). This was more specifically in relation to the delegate not being satisfied that the nominated business, Sunway Trading Pty Ltd as trustee for Sunway Holding Trust (the Business), was actively operating prior to July 2016.
The matter was constituted to a Tribunal Member on 18 March 2021. On 14 May 2021, the Tribunal wrote to the applicants to invite them to attend a hearing by video conference on 2 June 2021. The Tribunal exercised its discretion to hold the hearing by video conference using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the further delay to the matter if the hearing was not to be conducted by video.
The hearing invitation also included a paragraph as follows:
Please provide all documents you intend to rely on to support your case by 26 May 2021. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.
In response, the Tribunal received submissions and evidence from the visa applicant on 24, 25, 26 and 31 May 2021. Mr Ruan appeared before the Tribunal on 2 June 2021 via Microsoft Teams video conference from China and gave evidence and presented arguments on affirmation. 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, Ms Yek of Oakfair Lawyers. Ms Yek also attended the Tribunal hearing by video conference.
It was discussed…

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: [2021] AATA 2683
Decision Date: 8 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Ruan, who sought review of a decision not to grant him and his family Business Skills (Permanent) Subclass 888 visas. Mr. Ruan had previously been granted a Subclass 188 Provisional visa and arrived in Australia with the intention of establishing a business. The dispute centred on whether Mr. Ruan had met the requirements for the permanent visa, specifically concerning his ownership interest in a main business actively operating in Australia.

The primary legal issue before the Tribunal was whether Mr. Ruan satisfied clause 888.222 of Schedule 2 to the Migration Regulations. This clause requires an applicant to have had an ownership interest in at least one actively operating main business in Australia for the two years immediately preceding the visa application, and for this to continue to be met at the time of the decision. The Tribunal also considered the implications for secondary applicants, whose eligibility depended on the primary applicant meeting the criteria.

The Tribunal affirmed the decision not to grant the visas because Mr. Ruan failed to satisfy clause 888.222. Despite being given opportunities to provide necessary information, Mr. Ruan did not submit the required details regarding his business operations. The Tribunal noted that there was limited current and historical financial and trading information, and inconsistent sales data for the relevant period. Consequently, the Tribunal concluded that the criterion of having an ownership interest in an actively operating main business could not be met. As a result, the secondary applicants, being members of Mr. Ruan's family unit, also failed to satisfy their respective criteria.

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 considers that the applicant has been given every opportunity to provide the information that is necessary to enable the Tribunal to consider making a favourable decision. No information was provided, no extension of time was requested and no explanation as to why the applicant had failed to comply with the Tribunal’s request for information was provided. Consequently, on 8 July 2021, the Tribunal proceeded to make a decision. For the following reasons, the Tribunal has concluded that the matter should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE According to Departmental records, Mr Ruan was granted a Subclass 188 Provisional visa on 31 December 2013 and arrived in Australia in February 2014. He told the Tribunal that his experience in China was in the real estate business. However, he found it to be stressful and competitive and sought a change in his lifestyle. Having visited Australia with his family on past occasions, he and his wife, Ms He, decided that they liked the work/life balance that was evident in Australia and were keen for their children to complete their education in Australia. Mr Ruan gave oral evidence that his initial intention was to commence a business in Australia in the real estate industry, in line with his business knowledge and experience. However, he came to realise that this type of business was not acceptable for this type of visa. Consequently, he and Ms He set about researching and exploring various business options. The Tribunal notes that Mr Ruan also entered into the property market and has several entities set up to hold the properties for the family, some of which are rented to the Business. He further stated that he sold all of his assets and properties in China and transferred the funds to Australia. In 2015, Mr Ruan and Ms He considered the purchase of a restaurant business in the city of Melbourne. However, prior to settlement he became aware of the financial inaccuracies provided and decided not to pursue the purchase. Mr Ruan and his wife had noted the attraction to nature and lifestyle in Australia, which led them to commence the development of a purely natural skincare range. Mr Ruan explained that although neither of them had direct experience in skincare, they had both studied marketing and were cognisant of the potential market in this area both in Australia and also in China, where it was evident that the population was ever seeking higher quality products. Mr Ruan expressed the importance for them to develop their own brand to ensure that the range consisted of high quality and natural ingredients and acknowledged that this was the more difficult pathway. While the retail sales in Australia were both online and for a period from a retail outlet in Chadstone, his company in China, Shanghai Sunway Investment Company Ltd (Shanghai Sunway), was registered for the purpose of importing the products to China and to control that side of the sales. The issue in the present case is in relation to cl.888.222 of Schedule 2 to the Regulations. Clause 888.222(1)(a) requires the applicant to have had an ownership interest in at least one actively operating main business in Australia during the two years immediately before the application was made. Clause 888.222(1)(b) requires that the criterion in cl.888.222(1)(a) continue to be met at the time of decision. In this case cl.888.222(2) is not applicable.

Decision

Reasons for decision

Further, because the first named applicant is unable to satisfy cl.888.222 of Schedule 2 to the Regulations, the second and third named applicants are unable to satisfy cl.888.311 of Schedule 2 to the Regulations because they are not members of a family unit of a person who holds a Subclass 888 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Therefore, the decision in relation to the secondary applicants must also be affirmed.DECISION The Tribunal affirms the decision not to grant the applicants’ Business Skills (Permanent) Subclass 888 visas.Robyn AndersonMember

Ratio Decidendi

Legal Principle Established

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