SITU (Migration) - [2018] AATA 1873

SITU (Migration) [2018] AATA 1873 (26 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jianlin Situ
Ms Jianli Shan
Miss Yingqi Situ
Mr Haohua Situ
Mr Junming Situ
CASE NUMBER:  1514353
DIBP REFERENCE(S):  BCC2014/3403704, BCC2014/3417175, BCC2015/2577476, BCC2016/490523, BCC2016/491034
MEMBER:Katie Malyon
DATE:26 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Statement made on 26 March 2018 at 5:46 pm
CATCHWORDS
Migration – Business Skills (Residence) (Class DF) visa – Subclass 892 – Net Assets requirement not met – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 362B
Migration Regulations 1994, Schedule 2, cl 892.212
CASES
Hasran v MIAC [2010] FCAFC 40
Kaur v Minister for Immigration & Anor [2013] FCCA 1641
MZZGY v Minister for Immigration and Border Protection [2014] FCA 488
Singh v Minister for Immigration & Anor [2014] FCCA 2537
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 Immigration on 8 October 2015 to refuse to grant the visa applicants a Business Skills (Residence) (Class DF) Subclass 892 visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 10 December 2014. The delegate refused to grant the visa on the basis that the first named applicant, Mr Jianlin Situ, did not meet 2 of the 3 alternative requirements in cl.892.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations). A copy of the delegate’s decision was provided to the Tribunal. Set out in the Attachment to this decision is an extract of key provisions of the Regulations referred to in this decision.
Background
Mr Situ applied for the visa on the basis of his 100% shareholding of the 100 shares issued in his business, Rong Sen Group (Australia) Pty Ltd (Rong Sen). The second, third, fourth and fifth named applicants applied for the visas on the basis of their being members of the family unit of Mr Situ. Based on information in the Department’s file, Rong Sen is an export trading company, specialising in the export of wool.
After reviewing documentation lodged in support of his application for a Subclass 892 visa, the Department requested assorted documentation on 30 July 2015 including:
·
Tax Agent Portal generated Integrated Client Account summary for the period from

1 December 2012;
·evidence of loans to Rong Sen including loan ledger showing exact dates on which funds were transferred to the company and bank statements for Mr Situ and Rong Sen confirming bank loans;
·title deeds for Mr Situ’s apartment in Chatswood, settlement statement and mortgage statements;
·evidence to demonstrate decision-making and management of Rong Sen having regard to evidence that, amongst other things, the website for the Australian Securities & Investment Commission (ASIC) had a ‘Notice of proposed deregistration – ASIC initiated’…

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: SITU (Migration) [2018] AATA 1873
Case: [2018] AATA 1873
Decision Date: 26 March 2018

CaseChat Overview and Summary

This matter concerned an application for a Business Skills (Residence) (Class DF) visa, subclass 892, by Mr. Situ and his family. The core dispute revolved around whether the primary applicant met the criteria set out in clause 892.212 of Schedule 2 to the Migration Regulations 1994. The decision was made by Katie Malyon, a Member of the Tribunal.

The Tribunal was required to determine if Mr. Situ satisfied at least two of the requirements stipulated in clause 892.212, in the absence of a determination of exceptional circumstances by the appropriate regional authority. These requirements related to the provision of employment to eligible employees, the net value of business and personal assets in Australia, and the net value of assets within the main business or businesses in Australia, all assessed over specific periods prior to the application date and requiring lawful acquisition.

The Tribunal affirmed the decision not to grant the visa. It considered the documentation provided by Mr. Situ's representative, which was submitted after the requested timeframe. The Tribunal's reasoning focused on the failure to meet the net assets requirement under clause 892.212(b), which mandates a net value of at least AUD 250,000 throughout the 12 months preceding the application. The provided financial statements and other documents were insufficient to establish that this criterion, or indeed any two of the criteria in clause 892.212, had been met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the primary applicant meets the criteria in cl.892.212 of Schedule 2 to the Regulations. This provision states:Unless the appropriate regional authority has determined that there are exceptional circumstances, the applicant meets at least 2 of the following requirements: (a) in the period of 12 months ending immediately before the application is made, the main business in Australia, or main businesses in Australia, of the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together: (i) provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 1 full-time employee over that period of 12 months; and (ii) provided those hours of employment to an employee, or employees, who: (A) were not the applicant or a member of the family unit of the applicant; and (B) were Australian citizens, Australian permanent residents or New Zealand passport holders; (b) the business and personal assets in Australia of the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together: (i) have a net value of at least AUD 250 000; and (ii) had a net value of at least AUD 250 000 throughout the period of 12 months ending immediately before the application is made; and (iii) have been lawfully acquired by the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together; (c) the assets owed by the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main businesses in Australia: (i) have a net value of at least AUD 75 000; and (ii) had a net value of at least AUD 75 000 throughout the period of 12 months ending immediately before the application is made; and (iii) have been lawfully acquired by the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together. In response to the Tribunal’s request for information, Mr Situ’s representative provided the following documentation on 28 August 2017, that is, 3 days after the timeframe provided by the Tribunal in its letter of 11 August 2017:1)Ownership Interest - ASIC extract; financial statements ended 30 June 2014, 2015 and 2016; Tax Return 2016; Business Activity Statements (BAS) 1 July 2015 to 30 June 2016 and 1 July 2016 to 30 June 2017; Bank Statements 2016/2017; and, 2)Assets Ownership - letter from an Accountant to verify the assets owned by Mr Situ in the business.As noted above, there was no request for an extension of time to provide this information to the Tribunal. The Tribunal has considered the information and documentation provided by Mr Situ’s representative, both to the Tribunal and the Department.

Decision

Reasons for decision

The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.DECISION Katie MalyonMemberATTACHMENT - Extract from the Migration Regulations 1994SUBCLASS 892 -- STATE/TERRITORY SPONSORED BUSINESS OWNER 892.1 - Interpretation Note 1: appropriate regional authority , AUD , ownership interest and qualifying business are defined in regulation 1.03 and main business is defined in regulation 1.11. Note 2: As to beneficial ownership of an asset or ownership interest, see regulation 1.11A. Note 3: Regulation 1.03 provides that member of the family unit has the meaning set out in regulation 1.12. Subregulations 1.12(2) and (5) are relevant for applicants for a Business Skills (Residence) (Class DF) visa. Note 4: There are no interpretation provisions specific to this Part. 892.2 - Primary criteria Note: The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria. 892.21 - Criteria to be satisfied at time of application 892.211 (1) The 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 is made. (2) For each business to which subclause (1) applies: (a) an Australian Business Number has been obtained; and (b) all Business Activity Statements required by the Australian Taxation Office (the ATO ) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application. 892.212 Unless the appropriate regional authority has determined that there are exceptional circumstances, the applicant meets at least 2 of the following requirements: (a) in the period of 12 months ending immediately before the application is made, the main business in Australia, or main businesses in Australia, of the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together: (i) provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 1 full-time employee over that period of 12 months; and (ii) provided those hours of employment to an employee, or employees, who: (A) were not the applicant or a member of the family unit of the applicant; and (B) were Australian citizens, Australian permanent residents or New Zealand passport holders; (b) the business and personal assets in Australia of the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together: (i) have a net value of at least AUD 250 000; and (ii) had a net value of at least AUD 250 000 throughout the period of 12 months ending immediately before the application is made; and (iii) have been lawfully acquired by the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together; (c) the assets owned by the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main businesses in Australia: (i) have a net value of at least AUD 75 000; and (ii) had a net value of at least AUD 75 000 throughout the period of 12 months ending immediately before the application is made; and (iii) have been lawfully acquired by the applicant, the applicant's spouse or de facto partner, or the applicant and his or her spouse or de facto partner together. ….oOOo

Ratio Decidendi

Legal Principle Established

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