Tan (Migration) - [2020] AATA 1109

Tan (Migration) [2020] AATA 1109 (7 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:
Ms Yuen Chun Tan

Mr Koon Wah Lim

Mr Syu Kuan Lim

Ms Si Xuan Lim

Ms Si Jie Joyce Lim

Mr Syu Yong Martin Lim
CASE NUMBER:  1822110
HOME AFFAIRS REFERENCE(S): BCC2017/952668 BCC2018/4195409
MEMBER:Susan Hoffman
DATE:7 April 2020
DECISION:The Tribunal makes no decision in respect of the following applicants as it has no jurisdiction to do so.
Mr Koon Wah Lim
Mr Syu Kuan Lim

Ms Si Xuan Lim

The Tribunal affirms the decision not to grant the other visa applicants Business Skills (Residence) (Class DF) visas.

Statement made on 07 April 2020 at 1:28pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – jurisdictional issue – outside migration zone at time of review application – No jurisdiction – operation of main business for at least two years – ownership interest in main business – active operation during relevant period – no exporting activities – no sales income for more than one year – minimal expenses in BAS statements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), r 1.11; Schedule 2, cl 892.211

CASES
Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513
Yang v Minister for Immigration and Border Protection [2014] FCCA 1576

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2018 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 March 2017. At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor). The applicants in this case are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.

3. The delegate in this case refused to grant the visas on the basis that the first named visa applicant did not satisfy the requirements of cl.892.211 of Schedule 2 to the Regulations because he was not satisfied that the applicant was operating a main business in Australia for at least two years immediately before the application was made.

4. The primary applicant (henceforth the applicant) and her husband, Mr Lim, appeared before the Tribunal on 27 February 2020 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.

6.…

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

Case: [2020] AATA 1109
Decision Date: 7 April 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Tan concerning an application for a Business Skills (Residence) (Class DF) visa, specifically the Subclass 892 (State/Territory Sponsored Business Owner) visa. The applicant, Mr. Tan, sought review of a decision made by the Department of Home Affairs. A key jurisdictional issue arose as Mr. Tan was outside the migration zone at the time his review application was lodged with the AAT.

The Tribunal was required to determine whether it had jurisdiction to hear the appeal, given the applicant's location outside the migration zone when the review application was filed. Furthermore, the Tribunal had to assess whether Mr. Tan met the substantive criteria for the visa, specifically whether he had operated a main business for at least two years, held an ownership interest in that business, and was actively involved in its operation during the relevant period. The Tribunal also needed to consider whether the business had any exporting activities, sales income for more than one year, and the extent of expenses reported in Business Activity Statements (BAS).

The Tribunal found that it lacked jurisdiction to consider the merits of the application because Mr. Tan was not within the migration zone at the time he lodged his application for review. Consequently, the Tribunal did not proceed to determine whether Mr. Tan met the visa criteria. The decision under review was affirmed on jurisdictional grounds.

Orders