Sun (Migration)

[2024] AATA 3190

Sun (Migration) [2024] AATA 3190 (6 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Peng Sun
Mr Chengze Sun

CASE NUMBER:  2214335

HOME AFFAIRS REFERENCE(S):          BCC2019/6705673

MEMBER:Peter Ranson

DATE:6 August 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Provisional) (Class EB) visas.

Statement made on 06 August 2024 at 4:17pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – Investor stream – no response to s.359(2) invitation – Tribunal declined indefinite adjournment of review – net value of assets – no documentary evidence provided in support of application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 188.245, 188.311

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2014] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Background

1. Mr Sun, and his son Master Chengze Sun (Chengze), applied for Business Skills (Provisional) (Class EB) visas on 17 December 2019. Class EB contains Subclass 188 (Business Innovation and Investment (Provisional)). 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).

2. 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, Mr Sun applied for the visa in the Investor stream.

3. On 13 September 2022, a delegate of the Minister for Home Affairs refused to grant the visas under s 65 of the Migration Act 1958 (Cth) (the Act). Mr Sun then applied for review of that decision. The delegate refused to grant the visas on the basis Mr Sun did not satisfy the requirements of cl.188.245 of Schedule 2 to the Regulations because:

   ‘There is no documentary evidence provided in support of your application since you lodged your application on 17/12/2019 to enable an assessment of your application.’

4. The secondary applicant, Chengze, applied based on being a member of the family unit of his father, Mr Sun. The delegate found Chengze could not be granted a Subclass 188 visa, as he did not meet the primary criteria, nor did he meet the secondary visa criterion (cl.188.311) requiring him to be a member of the family unit of a person who met the primary visa criteria.

5. The issue is whether Mr Sun has provided any information from which to make the assessment.

Section 359(2) no response - Loss of hearing

1. On 22 July 2024, the Tribunal wrote to Mr Sun to his e-mail address provided at the time of the application for review. The letter was issued pursuant to s 359(2) of the Act, inviting him to provide information in the form of any and all supporting documentation to enable a proper assessment of his application for a Subclass 188 visa in the investor stream. This was initiated by the Tribunal because the delegate found no information was provided with the application or subsequently, and no information or documents were provided to the Tribunal after the review application was lodged.

2. The Tribunal did not receive any response to its letter of 22 July 2024, nor the information invited to be provided, within the prescribed time for responding to the statutory invitation, nor was an extension of time sought. As Mr Sun failed to provide the information invited to be provided within the prescribed time, s 359C(1) of the Act applies and the Tribunal may decide on the review without taking any further action to obtain Mr Sun’s comments or response or to obtain the information invited to be provided.

1. Where an applicant fails to give information within the prescribed period in response to an invitation issued under s 359(2) of the Act, the Courts have confirmed ss 359C(1), 360(3) and 363A of the Act preclude the Tribunal from offering an applicant a hearing.[1] Accordingly, as Mr Sun failed to give the information requested within the prescribed period, he has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

   [1] Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

2. Although Mr Sun has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow him additional time in which to provide evidence to support his application for review.

3. In doing so, the Tribunal has considered the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

4. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

5. Mr Sun has not provided the information invited to be provided, within the prescribed period set for this purpose and has not requested an extension of time to provide that information.

6. The Tribunal considers Mr Sun has been aware since 13 September 2022 of the reasons for the visa application being refused. The implications of not providing the information requested in the invitation from the Tribunal were set out in the letter dated 22 July 2024.

7. In these circumstances, the Tribunal considers Mr Sun has had sufficient time in which to address the central issue arising in the application for review, that is, provide the necessary information to enable the application to be assessed. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow him more time in which to demonstrate he meets the relevant criteria for a Subclass 188 visa. Accordingly, for the reasons set out here, the Tribunal has decided to proceed to a decision without taking any further action to obtain the information requested under s 359.

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the application.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Mr Sun is seeking to satisfy the primary criteria for a Subclass 188 visa in the Investor stream which include the criteria in Subdivisions 188.21 and 188.24 of Schedule 2 to the Regulations.

2. Mr Sun provided no supporting documentation or information with his application despite requests from the delegate to do so. The delegate refused the application because there was no evidence from which to determine if he meets cl.188.245.

Net value of assets – cl.188.245

1. For the two fiscal years immediately before the time of invitation to apply for the visa, cl.188.245 requires the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, had a net value of at least A$2,250,000 (if the time of invitation was before 1 July 2021); or at least A$2,500,000 (if the time of invitation was on or after 1 July 2021).

2. As Mr Sun applied for the visa on 17 December 2019, the lower threshold of at least A$2,250,000 applies in this case.

3. ‘Fiscal year’, in relation to a business or investment, means, if there is applicable to the business or investment by law an accounting period of 12 months – that period; or in any other case – a period of 12 months approved by the Minister in writing for that business or investment: reg 1.03.

4. In the decision record dated 13 September 2022, the delegate said:

   ‘There is no documentary evidence provided in support of your application since you lodged your application on 17/12/2019 to enable an assessment of your application.

   You were advised via electronic mail on 31/05/2022 to provide in 28 days further evidence to support your application.

   The timeframe given in our letter of 31/05/2022 had expired and no response has been received from you.

   On 05/09/2022, you were advised that as no evidence has been submitted to support that you meet clause 188.245, among other requirements prescribed in Schedule 2, a decision would be made on your application based on the information on hand.

   To date, our office has not heard from you or received any further evidence from you in support of your application.’

5. As mentioned above, on 22 July 2024 the Tribunal wrote to Mr Sun using the e-mail address he provided in his application for review. The letter says in part:

   ‘You are invited to provide the following information in writing:

   Information in the form of any and all supporting documentation to enable a proper assessment of your application for a subclass 188 visa in the investor stream.

   The information should be received by 5 August 2024. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

   If you cannot provide the information by 5 August 2024, you may ask us for an extension of time in which to provide the information. If you make such a request, it must be received by us by 5 August 2024 and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’

6. As no reply was received and there is no information before the Tribunal with which to assess Mr Sun’s application, the Tribunal is not satisfied he meets cl.188.245.

7. For these reasons, the Tribunal finds Mr Sun does not meet cl.188.245.

CONCLUSION

1. Given the above findings, the Tribunal finds 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 decisions not to grant the visa applicants Business Skills (Provisional) (Class EB) visas.

Peter Ranson

Member