Wang (Migration) - [2020] AATA 1263

Wang (Migration) [2020] AATA 1263 (6 March 2020)

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Zhiqiang Wang
CASE NUMBER:  1909074
HOME AFFAIRS REFERENCE(S): BCC2017/1913193 – BCC2017/2220889
MEMBER:P Ranson
DATE:6 March 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa Applicant a Business Skills (Residence) (Class DF) visa.
Statement made on 06 March 2020 at 11:43am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) – Subclass 890 (Business Owner) – ownership interest in main business – direct and continuous involvement in management – frequent and extended absences from Australia – net assets of business – decreasing revenue and increasing losses each year – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(10), 359A
Migration Regulations 1994 (Cth), rr 1.11(1)(b), 1.11A, Schedule 2, cll 890.211(1), 890.212
CASES
Shahpari v Minister for Border Protection [2016] FCCA 513
Sun v Minister for Immigration [2015] FCCA 1266
Yang v Minister for Immigration and Border Protection [2014] FCCA 1576
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 3 April 2019 to refuse to grant the visa Applicant a Business Skills (Residence) (Class DF) (Subclass 890) visa under s.65 of the Migration Act 1958 (the Act).
Mr Zhiqiang Wang (the Applicant) applied for the visa on 30 May 2017. Certain criteria must be satisfied during the two year period ending immediately before the application is lodged, that is, 30 May 2015 to 29 May 2017 (the Application Period).
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 Applicant in this case is seeking to satisfy the criteria for the grant of a Subclass 890 (Business Owner) visa, as set out in Part 890 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate in this case refused to grant the visa on the basis the visa Applicant did not satisfy the requirements of cl.890.212 of Schedule 2 to the Regulations because sufficient information was not provided to enable the delegate to confirm the net assets of the business were at least $100,000 for the 12 months immediately prior to the date of the application.
The Applicant appeared before the Tribunal on 23 October 2019 to give evidence and present arguments. The Applicant was represented in relation to the review by Mrs Li Qin (the Representative). The Representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

As mentioned above, the delegate in this case refused to grant the visa on the basis the visa Applicant did not satisfy the requirements…

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.

Keep reading for free

Create a free CaseChat account to read Wang (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] AATA 1263
Decision Date: 6 March 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Wang (Migration), where the applicant sought review of a delegate's decision to refuse a Business Skills (Residence) visa, Subclass 890 (Business Owner). The primary dispute concerned whether the applicant met the requirements for ownership interest in a main business, direct and continuous involvement in its management, and the net assets of that business.

The Tribunal was required to determine two key legal issues. Firstly, whether the applicant maintained direct and continuous involvement in the day-to-day management and decision-making of the main business, despite frequent and extended absences from Australia. Secondly, the Tribunal had to assess whether the business, which had reported decreasing revenue and increasing losses annually, was being operated for a purpose other than profit, thereby impacting the applicant's ability to satisfy the "main business test."

The Tribunal reasoned that to satisfy the main business test under clause 890.211(1) of the Migration Regulations, the applicant must demonstrate an ownership interest in an actively operating main business in Australia for at least two years prior to the visa application and continue to hold that interest at the time of the decision. The applicant relied on FantAsia Asian Food (FantAsia Toowong), operated by High Happy Pty Ltd, to meet these criteria. The Tribunal noted that "ownership interest" includes being a shareholder in a company that carries on the business. The Tribunal's assessment would encompass the nature of the applicant's interest, the business's operational status, and whether it qualified as a "main business" during the relevant periods, including at the time of the decision. The Tribunal concluded that the decision under review should be affirmed.

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

Full text does not contain this section.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded the decision under review should be affirmed. As mentioned above, the delegate in this case refused to grant the visa on the basis the visa Applicant did not satisfy the requirements for the value of the net assets of the business. Before the net asset position of the business can be tested it is necessary to firstly determine whether the main business test has been met. Clause 890.211(1) requires the Applicant to have an ownership interest in the main business specified in the application and to maintain direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business. The issues for the Tribunal in this case therefore are whether the extended absences from Australia by the Applicant allowed him to maintain continuous involvement and whether the business, which has reported increasing losses each year, is being operated for a purpose other than to make a profit, that is, does the Applicant meet the main business test. The Applicant is required to have an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made and continued to have that interest at the time the visa application was made. The Applicant must continue to satisfy this requirement at the time of this decision.[1][1] cl.890.221 No more than two businesses can be nominated for this purpose[2] and one or both of the businesses relied on to meet the time of application criterion must be relied on to meet the time of decision criterion.[3][2] r.1.11(2)[3] Yang v Minister for Immigration and Border Protection [2014] FCCA 1576. The business relied on by the Applicant to satisfy this requirement is FantAsia Asian Food (FantAsia) in Toowong, Brisbane (FantAsia Toowong) (ABN 47 169 356 861). ABN is the initialisation of Australian Business Number. ABN 47 169 356 861 has been active and registered for GST continuously since 5 May 2014. The business is a franchise owned and operated by High Happy Pty Ltd (ACN 169 356 861) (High Happy). Accordingly, the Tribunal must consider the nature of the Applicant’s interest in this business, whether the business was actively operating and whether it met the definition of ‘main business’ during the Application Period. The Tribunal must also consider these issues as at the date of this decision and whether the Applicant continues to satisfy cl.890.211(1).Does the Applicant have an ownership interest in each business relied on at all relevant times? An ‘ownership interest’, in relation to a business, means an interest in the business as:(a)a shareholder in a company that carries on the business, or(b)a partner in a partnership that carries on the business, or(c)the sole proprietor of the business;including such an interest held indirectly through one or more interposed companies, partnerships or trusts.[4] Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of r.1.11A of the Regulations, set out in the attachment to this decision.[5][4] r.1.03 of the Regulations and s.134(10) of the Act[5] r.1.11A(1).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.