Shao (Migration) - [2023] AATA 498

Shao (Migration) [2023] AATA 498 (14 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mingbiao Shao
Ms Baoyi Shao
Master Junxi Shao
REPRESENTATIVE:  Mr Ian Walker (MARN: 1385173)
CASE NUMBER:  1932235
HOME AFFAIRS REFERENCE(S):          BCC2019/664664
MEMBER:Robyn Anderson
DATE:14 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Business Innovation and Investment (Provisional) Subclass 188 visas for the Business Innovation Extension Stream.

Statement made on 14 March 2023 at 3.42pm.

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional) visa – business innovation extension stream – main business actively operating for two years immediately before application made – no operations for most of the relevant period while caring for sick mother in home country then no sales while developing business – no provision for mitigating circumstances – current business successful – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(10)
Migration Regulation 1994 (Cth), rr 1.03, 1.11(1), Schedule 2, cl 188.232(1)(a)
CASES
Drake v MIEA (1979) 2 ALD 60
Kushner v MIAC [2009] FMCA 390
Li v MIBP [2015] MRTA 807
Shahpari v Minister for Immigration [2016] FCCA 513
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 25 October 2019 to refuse to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Class EB contains the Subclass 188 (Business Innovation and Investment (Provisional)) visa. 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), which includes the Business Innovation Extension Stream.
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 primary criteria include common criteria, and criteria set out in streams.
In this case, after being granted a Subclass 188 provisional visa on 11 March 2015, the applicants then applied for a Subclass 188 visa in the Business Innovation Extension Stream on 27 February 2019.
The delegate in this case refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 188.232 of Schedule 2 to the Regulations. More specifically, the delegate was not satisfied that for at least two years immediately before the application was made, the main business nominated by the applicant, Decheng Universal (Australia) Pty Ltd (the Business), was actively operating.
The matter was constituted to a Tribunal Member on 26 October 2022. The Tribunal wrote to the visa applicant on 28 October 2022 requesting further financial information and evidence that the applicant maintains, or has maintained, direct and continuous involvement in management of…

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.

Continue reading Shao (Migration)

Details

AGLC: Shao (Migration) [2023] AATA 498
Case: [2023] AATA 498
Decision Date: 14 March 2023

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Shao against a decision by the Tribunal to affirm the refusal of his Subclass 188 (Business Innovation and Investment (Provisional)) visa application, specifically for the Business Innovation Extension Stream. The core dispute revolved around whether Mr. Shao met the requirement that his main business had been actively operating for at least two years immediately prior to his visa application.

The legal issue before the Tribunal was to determine if Mr. Shao satisfied clause 188.232 of Schedule 2 to the Migration Regulations 1994. This clause requires an applicant to have had an ownership interest in one or more main businesses that were actively operating for at least two years immediately before the application was made, and to continue to hold that ownership interest. The Tribunal also considered whether a concession period, as defined in regulation 1.15N, was applicable, which would have allowed for a cumulative period of operation while holding a specific type of visa.

The Tribunal found that clause 188.232(1)(b) was not applicable because Mr. Shao was not holding a Subclass 188 visa in the Business Innovation stream or the Business Innovation Extension stream during the relevant concession period. The application was lodged on 27 February 2019, making the relevant period for active operation 27 February 2017 to 26 February 2019. While it was accepted that the business had been actively operating from 30 October 2018, the period from 27 February 2017 to October 2018, representing more than half of the required two years, was not actively operating. Consequently, the Tribunal concluded that the criteria for the visa grant were not met.

The Tribunal affirmed the decision not to grant Mr. Shao the Subclass 188 visas for the Business Innovation Extension Stream.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 19 December 2022, the Tribunal deferred making a decision, allowing 28 days for Mr Shao to provide further evidence and submissions, including a submission in relation to the case of Shahpari and Ors v Minister for Immigration & Anor [2016] FCCA 513 (Shahpari), as discussed at hearing. Further information was received by the Tribunal on 17 January 2023. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE Mr Shao told the Tribunal that he had travelled extensively and found Australia to be the most suitable place for his family to settle. He believed that he could advance his business here and it was also preferable to provide a good level of education for his children. He further stated that at the time of his initial application he was self-employed in China, in the family operated business dealing in trading and in the provision of building materials. The family business had been involved in trading and the building industry in China for more than 20 years. He had been involved since working there after school. Clause 188.232 provides as follows:(1) Either:(a)for at least the 2 years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia; or(b)if the applicant holds or held a Subclass 188 visa in the Business Innovation stream (the innovation stream visa ) or a Subclass 188 visa in the Business Innovation Extension stream (the extension stream visa ) during a concession period and the innovation stream visa that the applicant holds or held was granted before 1 July 2019--the applicant had an ownership interest in one or more main businesses that were actively operating in Australia for a cumulative period of at least 2 years while the applicant was the holder of the innovation stream visa or the extension stream visa.(2) The applicant continues to have the ownership interest mentioned in subclause (1). Concession period is defined in reg 1.15N of the Regulations as commencing no earlier than 1 February 2020, noting that the Minister may determine later commencement dates. On 1 February 2020, Mr Shao held a bridging visa and was not holding a Subclass 188 visa in the Business Innovation stream or a Subclass 188 visa in the Business Innovation Extension stream. Consequently, cl 188.232(1)(b) of Schedule 2 to the Regulations is not applicable. As noted above, the issue in the present case is that Mr Shao must have an ownership interest in one or more “main businesses” that were “actively operating” for at least the two years immediately before the application was made, and that Mr Shao retains the ownership interest in the same “actively operating” main business/es at the time of decision. As the application was lodged on 27 February 2019, it is undisputed that the relevant two-year period is 27 February 2017 to 26 February 2019 (the relevant period). In this case it is common ground that the Business was actively operating from 30 October 2018 and continues to do so. The issue of contention is in respect of the period 27 February 2017 to October 2018, which represents more than half of the relevant two-year period.

Decision

Reasons for decision

Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are not met. Accordingly, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicants Business Innovation and Investment (Provisional) Subclass 188 visas for the Business Innovation Extension Stream.Robyn AndersonMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.