Shao and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application by Mr. Shao and Mrs. Fan (the applicants) to review the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to cancel their Business Talent (Subclass 132) visas. The applicants' visas were granted in March 2017 and were valid until March 2022. Mr. Shao and Mrs. Fan resided in China, while Mr. Bo Shao, their son, was studying in Adelaide. The dispute arose following a Chinese court order in April 2018 restricting Mr. Shao's consumption activities due to an unpaid debt, which he claimed prevented him from travelling to Australia and fulfilling his business commitments.

The Administrative Appeals Tribunal was required to determine whether the discretion to cancel Mr. Shao's visa had been enlivened under subsection 134(1) of the *Migration Act 1958* (Cth). Specifically, the Tribunal needed to assess if Mr. Shao had failed to obtain a substantial ownership interest in an eligible business in Australia, or if he was not utilising his skills in actively participating at a senior level in the day-to-day management of such a business, or if he did not intend to continue to meet these requirements. The Tribunal also had to consider whether any prohibition on cancellation applied under subsection 134(2) of the Act, which requires a "genuine effort" by the visa holder, and if the cancellation would cause extreme hardship to the applicants.

The Tribunal found that the discretion to cancel the visa was enlivened under paragraphs 134(1)(a) and 134(1)(b) of the Act. It determined that Weifeng, the business in question, was not an eligible business as defined by subsection 134(10) because there was no reasonable belief that it was resulting or would result in the export of Australian goods or services, despite holding an export licence. Furthermore, Mr. Shao confirmed that Weifeng did not require day-to-day management, and there was no evidence to suggest he was actively participating at a senior level in its management. Consequently, the Tribunal concluded that Mr. Shao was unable to continue to meet the requirements of paragraphs 134(1)(a) and 134(1)(b), thus enlivening the discretion to cancel the visa under paragraph 134(1)(c). The Tribunal also found that Mr. Shao had not made a "genuine effort" as required by subsection 134(2), noting that while he claimed a consumption order and the pandemic hindered his efforts, the evidence did not sufficiently demonstrate a genuine attempt to meet the business visa criteria. The Tribunal affirmed the decisions under review.