Teoh (Migration)

[2024] AATA 1656

Teoh (Migration) [2024] AATA 1656 (31 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Siew Ling Teoh
Mr Chei Yang Ng
Miss Wei Xi Ng
Master Wei Lun Ng

REPRESENTATIVE:  Mr Michael Huang (MARN: 0639694)

CASE NUMBER:  2110867

HOME AFFAIRS REFERENCE(S):          BCC2019/6464078

MEMBER:Alison Mercer

DATE:31 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Class EC Business Skills (Permanent) visas.

Statement made on 31 May 2024 at 11:25am

CATCHWORDS

MIGRATION – Business Skills (Permanent) (Class EC) visa – Subclass 888 (Business Innovation) – continued ownership interest in a main business actively operating in Australia – main business closed permanently – impact of the COVID19 pandemic – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 65, 351
Migration Regulations 1994, Schedule 2, cls 888.222, 888.311; rr 1.03, 1.11

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 11 August 2021 to refuse to grant the applicants Business Skills (Permanent) subclass 888 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 4 December 2019 in the Business Innovation stream. The first named applicant (‘the applicant’) was the primary visa applicant and the second, third and fourth named applicants (the applicant’s husband and 2 children) were included as members of her family unit.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.888.222 of Schedule 2 to the Migration Regulations (‘the Regulations’) which required (amongst other things) that at the time of the delegate’s decision, the applicant continued to have an ownership interest in a main business that was actively operating in Australia. The delegate found that the applicant was the owner (100% shareholder) in an Australian business, Cool Asian Food Pty Ltd (trading as Laksa Bar Little Lonsdale), which had been actively operating for at least 2 years prior to the lodgement of the subclass 888 visa applications. The delegate found, however, that the applicant had provided evidence in January 2021 indicating that the business had closed on 28 November 2020 and that the Cool Asian Food Pty Ltd went into liquidation on 2 February 2021. Given this, the delegate found that the applicant’s main business was no longer actively operating, and she therefore did not satisfy the criteria for a subclass 888 visa in the Business Innovation stream. The delegate further found that she had not made any claims against any other stream within subclass 888. Finally, the delegate also refused to grant subclass 888 visas to the second, third and fourth named applicants as they could not satisfy the secondary visa criteria requiring them to be members of the family unit of a person who satisfied the primary visa criteria, and there was no evidence that they satisfied the primary visa criteria in their own right.

4. The Tribunal received a review application from the applicants on 19 August 2021. It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Michael Huang, as their representative and authorised recipient for correspondence.

5. The applicants appeared before the Tribunal on 2 April 2024 to give evidence and present arguments. The Tribunal also received oral submissions from the applicants’ agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant told the Tribunal that she and her family came to Australia to settle on a long term basis in 2017, although they had travelled to and from Australia before that. The applicant and her husband established the Laksa Bar Little Lonsdale in the central business district (CBD) of Melbourne and successfully ran it for 2 years prior to making the subclass 888 visa applications in December 2019. The applicant said that December – February was usually a quiet period for the restaurant, as the international students and CBD workers who comprised most of their customers were away for the holiday period. However, from February - March 2020, most of their customers could not return to the CBD due to the outbreak of the global COVID19 pandemic. This prevented overseas students from returning to Australia and meant that most people employed in the CBD were required to work from home for protracted periods from early 2020 to 2022.

7. The applicant and her husband told the Tribunal that prior to the COVID19 pandemic, they employed about 10 overseas students in the business, all of whom worked part time due to their visa conditions. The applicant and her husband also worked in the business, and there were 2 Australian staff (an Australian citizen and a permanent resident). The applicant said that after COVID19 hit, their staffing was reduced to her and her husband and the 2 Australian staff, for whom the business received JobKeeper payments. However, they lost nearly all of their customers. They pivoted to operating solely as a take away business but by the end of 2020, they could not continue as they were losing money. The applicant told the Tribunal that after discussions with the business’ accountant, they closed the business at the end of November 2020 and the company went into liquidation. She confirmed that all of the liquidation processes had been finalised now. The applicant confirmed that the Laksa Bar Little Lonsdale remained closed, although the applicant’s husband indicated that if they had the opportunity, they were confident that they could re-establish the business, as it still had customers loyal to its unique flavours.

8. In response to the Tribunal’s query, the applicant said that since closing the Laksa Bar business, the family had survived financially initially because the applicant was able to get a job at Crown Casino for $750 per week while her husband looked after the children. The applicant said that she now worked as a shelf-stacker at a supermarket on a part time basis as the hours at Crown Casino were very late so she had to give up that employment. In the meantime, her husband had been employed as a Cook for the last 2 or so years at a Melbourne restaurant, Cutler & Co.

9. The Tribunal discussed with the applicant and her husband its view that cl.888.222 required that the applicant was still operating her original main business, and that that business was still actively operating as at the time of the Tribunal’s decision. The Tribunal observed that it appeared that the applicant could not meet this requirement, as her own evidence was that the sole main business closed in November 2020 and the associated company went into liquidation, a process that had now been finalised. The applicant did not dispute this, but asked that the Tribunal consider the family’s case compassionately as she and her husband worked as hard as they could to try to ensure that the business remained open during the COVID19 pandemic, and it had successfully operated for at least 2 years before that. The applicant and her husband told the Tribunal that all of their plans and visa applications were made to ensure that their children had better opportunities in Australia. They confirmed that the second named applicant, their daughter, is in grade 6, while her brother (the third named applicant) is in grade 4. They told the Tribunal that all of the children’s education had been in Australia, and that English was the children’s first language. The applicant and her husband stated that they had lost money due to the closure of their Australian business, and they had sold their home in Malaysia before coming to Australia.

10. The applicants’ agent noted that their position may have been different if they had received different advice from their accountant or a lawyer at the time of the closure of their business and the company liquidation. He noted that in many cases, the liquidator ultimately gave the business owners the opportunity to purchase the business name after the liquidation, so they might have been able to re-start the business after the COVID19 lockdowns ended and potentially still meet cl.888.222. The agent conceded, however, that this did not happen in this case, and that the business had closed down permanently. He emphasised that the applicant and her husband were hard-working and enterprising and that the advent of the COVID19 pandemic could not have been predicted by them. He further noted that hospitality staff (such as Cooks, Chefs and Café or Restaurant Managers) were in short supply in Australia and that they hoped that it might be possible for the applicant’s husband to be sponsored or nominated for either a temporary or permanent visa as a Cook. The applicants’ agent noted, however, that the applicant’s husband’s English needed to improve for some visa categories, although he noted that they were also considering regional visa categories in relation to which the English proficiency requirements were more lenient.

11. The Tribunal discussed with the applicants the fact that the subclass 888 criteria did not include any discretion in relation to why an applicant’s main business might not still be actively operating as at the time of the Tribunal’s decision. It therefore indicated that it appeared that it would have to affirm the decisions under review to refuse to grant them subclass 888 visas, but that it was unlikely to make a decision for 4 to 8 weeks due to its existing workload. The Tribunal clarified with Mr Huang that he was not requesting a Ministerial intervention referral for his clients and he confirmed that this was the case as he considered such a request to not have a high chance of success.

12. In documentary evidence, the applicants provided to the Tribunal a Statutory Report to Creditors for Cool Asian Food Pty Ltd (in liquidation), prepared by GreyHouse Partners on 2 March 2021. This indicates that since the COVID19 pandemic in 2020, the restaurant’s daily traffic dropped precipitously, and that despite some government subsidies, it was impossible to continue profitably, and further that attempts to sell the business in 2020 were unsuccessful as there were no interested parties willing to purchase the business during the COVID19 pandemic. It was therefore decided to put the company into liquidation and it came under external administration on 3 December 2020.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicant meets the requirements of cl.888.222, which relevantly provides as follows (Tribunal’s emphasis in italics):

    888.222 

    (1)  The applicant (the current applicant): 

    (a)  had an ownership interest in at least one actively operating main business in Australia during the 2 years immediately before the application was made; and

    (b)  continues to have the ownership interest in the actively operating main business.

    ... 

15. As discussed with the applicants at hearing, cl.888.222 is a time of decision criterion, so the Tribunal must be satisfied that cl.888.222(1)(b) is met at the time of its consideration and decision (that is, May 2024).

16. It is not disputed that the applicant is the primary visa applicant, and at the time that the subclass 888 visa applications were made on 4 December 2019, she had an ownership interest (being the majority and then the sole shareholder) of her nominated main business, Cool Asian Food Pty Ltd (trading as Laksa Bar Little Lonsdale) during the 2 years immediately before the application was made. From its review of the material on the Department file and the oral evidence of the applicant and her husband at hearing, the Tribunal is satisfied that this business met the definition of ‘main business’ set out in r.1.11 of the Regulations, as the applicant had the required level of ownership interest in it, it was a qualifying business, and the applicant had maintained direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business. The Tribunal is further satisfied that the applicant only nominated 1 business (Cool Asian Food Pty Ltd) as her main business.

17. It is also not disputed, however, that as at May 2024 (the time of the Tribunal’s decision), the applicant’s restaurant Laksa Bar Little Lonsdale had ceased operating in November 2020 due to the impact of the COVID19 global pandemic, and that Cool Asian Food Pty Ltd went into liquidation in February 2021. Given this, the Tribunal must find that the applicant no longer has an ownership in the actively operating main business and therefore cannot satisfy cl.888.222(1)(b). She therefore does not satisfy cl.888.222 as a whole, and the Tribunal must affirm the decision not to grant her a subclass 888 visa in the Business Innovation stream. There is no evidence that she meets the criteria for any other stream, and she and her agent did not claim that she did so.

18. The Tribunal must also affirm the decisions to refuse to grant subclass 888 visas to the second, third and fourth named applicants (the applicant’s husband and children) as they do not meet the secondary visa criteria in cl.888.311 requiring them to be members of the family unit of a person who holds a subclass 888 visa, and there is no evidence that they meet the primary visa criteria in their own right.

19. The Tribunal acknowledges that the applicants made every effort to keep their business afloat during the COVID19 pandemic period, which they could not have anticipated, and to which their business was especially vulnerable. These circumstances were outside their control. The Tribunal further acknowledges that the applicants relocated to Australia and invested significant money and effort into establishing and running their Australian business in order to give their children better opportunities, and that their children are now in the Australian education system, having lived here since 2017. The relevant legislation does not provide the Tribunal with any discretion to take such factors into account to waive or overlook the requirements of cl.888.222.

20. It notes, however, that it is open to the applicants and their agent to seek Ministerial intervention pursuant to s.351 of the Act if they feel that their circumstances are unique and/or compelling or otherwise are similar to those set out in the Ministerial intervention guidelines on the Department’s website: Ministerial intervention (homeaffairs.gov.au)

    DECISION

21. The Tribunal affirms the decisions not to grant the applicants Class EC Business Skills (Permanent) visas.

    Alison Mercer
    Member