Shan (Migration) - [2023] AATA 3482

Shan (Migration) [2023] AATA 3482 (19 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yongfeng Shan
Mr Bo Chuan Ding
Mr Yi Ding
Miss Shu Chan Ding
REPRESENTATIVE:  Mr Hai Dong Shao (MARN: 0742867)
CASE NUMBER:  2017734
HOME AFFAIRS REFERENCE:               BCC2020/2103140
MEMBER:Robyn Anderson
DATE:19 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Business Skills (Provisional) (Class EB) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa for the Business Innovation Extension stream:
·cl 188.232 of Schedule 2 to the Migration Regulations1994.

Statement made on 19 September 2023 at 10.15am.

CATCHWORDS
MIGRATION – Subclass 188 (Business Innovation and Investment (Provisional)) visa – Subclass 188 – the export business is a qualifying business – applicant had an ownership interest in the export business and McMahons in the relevant period – applicant continues to have an ownership interest in the main business – businesses were actively operating in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 134
Migration Regulations 1994, rr 1.11, 1.03, Schedule 2, cl 188.232
CASES
Minister for Immigration and Border Protection v Snyman [2016] FCA 242
Nassif v MIMIA [2003] FCA 481
Rahbarinejad v MIBP [2018] FCCA 2293
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 November 2020 to refuse to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the Business Innovation and Investment (Provisional) (Subclass 188) visa in the Business Innovation Extension stream on 17 August 2020. The criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visas on the basis that the criteria under cl 188.232 of Schedule 2 to the Regulations were not met. More specifically, the delegate was not satisfied that for the two years immediately before the application was made, one or more main businesses were actively operating in Australia in which the applicant held an ownership interest. This was due to the delegate not being satisfied that a main business was actively operating during the period 1 January 2019 to 30 June 2019 where no sales were recorded on the business activity statements in respect of the nominated main business.
The matter was constituted to a Tribunal Member on 25 May 2023. On 26 May 2023, the Tribunal wrote to the applicants and invited them to attend a hearing on 6 July 2023. On 29 June…

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

AGLC: Shan (Migration) [2023] AATA 3482
Case: [2023] AATA 3482
Decision Date: 19 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the applications of Mr. Shan and his family members for Subclass 188 (Business Innovation and Investment (Provisional)) visas. The dispute concerned whether Mr. Shan met the criteria for the Business Innovation Extension stream of this visa subclass, specifically regarding his ownership interest in an export business and its active operation in Australia.

The Tribunal was required to determine if the applicant had an ownership interest in a qualifying business and if that business was actively operating in Australia during the relevant period, as stipulated by clause 188.232 of Schedule 2 to the Migration Regulations 1994. The Tribunal also needed to consider the applications of the other family members, which were dependent on the outcome of the primary applicant's application.

The Tribunal found that the first named applicant, Mr. Shan, met the specified criteria for the Subclass 188 visa. The Tribunal reasoned that the export business qualified as a business in which the applicant had an ownership interest and that this business, along with another entity named McMahons, was actively operating in Australia during the relevant period. Consequently, the Tribunal remitted the applications for reconsideration by the Department, with the direction that the primary applicant satisfied the relevant visa criteria. The applications of the second, third, and fourth named applicants, as family unit members, were to be determined based on this outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that as the second, third and fourth named applicants applied on the basis of being family unit members of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration. DECISION The Tribunal remits the applications for Business Skills (Provisional) (Class EB) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa for the Business Innovation Extension stream:·cl 188.232 of Schedule 2 to the Migration Regulations1994.

Ratio Decidendi

Legal Principle Established

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