WANG (Migration)

[2019] AATA 6704

WANG (Migration) [2019] AATA 6704 (7 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms MIN WANG
Mr LIQIANG SUN
Master HAOTING SUN

CASE NUMBER:  1619405

DIBP REFERENCE(S):  BCC2015/2717247 BCC2015/2717448 BCC2015/2717450 BCC2016/2372437 BCC2016/2372442 BCC2017/448317

MEMBER:John Cipolla

DATE:7 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions under review refusing the applicants the grant of Business Skills (Residence) (Class DF) visas.

Statement made on 07 November 2019 at 10:13am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – ownership interest in ‘main business’ – direct and continuous involvement in management of business – activities of business orchestrated by a third party – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.11; Schedule 2, cl 890.211

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 Immigration on 11 November 2016 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).

2. The applicant applied for the visa on 17 September 2015. The delegate refused to grant the visa on the basis that the applicant had not met cl.890.211(1) of Schedule 2 of the Migration Regulations. The delegate concluded that there was insufficient evidence to find that the applicant maintains, or has 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 for at least two years immediately before the application for the visa was made.

3. The delegate noted that the applicant had lodged a previous Business Skills, Subclass 890 visa application based on the same business on 18 March 2014. The delegate noted that this visa application was refused on the basis that the applicant did not meet the requirements of clause 890.211. The previous delegate found that the applicant had failed to maintain, or 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. 

4. The delegate noted that the applicant sought merits review through the then Migration Review Tribunal (MRT). The delegate noted that on 6 May 2015 the MRT affirmed the decision to refuse the previous visa application and determined that “the applicant was able to demonstrate some knowledge of the business but was not able to satisfy the MRT that she had the requisite involvement in making decisions affecting the overall direction and performance of the business during the requisite period” which was from 14 March 2012 to 14 March 2014.

5. The delegate noted that the applicant sought judicial review of the MRT decision with the Federal Court affirming the MRT decision in a judgement made on 23 August 2016 and dismissing the applicant’s application for judicial review.

6. The delegate determined that given the findings in the previous visa application, confirmed by the MRT, the decision of which was upheld by the Federal Court that there was no basis for departing from those findings and the delegate could not be satisfied that the applicant maintained direct and continuous involvement in the management of Minz Investment (Aust) Pty Ltd during the relevant period from 17 September 2013 to 17 September 2015.  The delegate also finding that there was a period of overlap with the previous visa application that ran from September 2013 to March 2014.

7. On 18 November 2016 the applicant applied for review of the Departmental decision. The applicant was represented at review by their migration agent.

8. The applicant appeared before the Tribunal on 22 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants husband Mr Liqiang Sun.

9. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.

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

    CONSIDERATION OF EVIDENCE

    First Subclass 890 visa application

11. The applicant made her first application for a Subclass 890 visa on 18 March 2014. On 17 July 2014 a delegate refused the visa on the basis that the applicant did not meet cl.890.211(1) of the Migration Regulations. The delegate noted that the Migration Regulations stipulate that the applicant must have ‘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’.  The term ‘main business’ is defined by regulation 1.11 and at subsection (b) specifies that ‘the applicant maintains, or has maintained, 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;’.  There is a further requirement that 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.

12. The delegate correctly quantified the relevant 2 year period as being 18 March 2012 to 18 March 2014, and the identified the prospective ‘main business’ in question as Minz Investment (Aust) Pty Ltd (Minz), trading as Minz Coach and Tour.

13. The delegate noted that Minz was first registered on 17 June 2011 by Mr Jianming Ren who was listed as its founding Director. The delegate noted that the applicant took control of the company on 22 September 2011. Mr Ren was listed thereafter as the designated Manager/Director of Minz Investment (Aust) Pty Ltd for the purpose of accreditation with the Passenger Transport Act. The delegate considered these appointments of Mr Ren as the Director weighed against Minz being a ‘main business’ for the applicant.

14. The delegate considered the applicant’s involvement in various facets of the day to day operation of the business. It was submitted that the applicant was responsible for the lease of the business; however, the delegate noted at the time the lease was signed, the applicant was not the owner/director of the business and was not referred to in the lease document, and the listed guarantor in the lease was Mr Ren.  The applicant claimed to be responsible for rental payments; however, the applicant as noted was not referred to in the lease agreement documents and that all tax invoices for rent were marked to the attention of Mr Ren.  A number of meeting summaries were also provided, spanning the dates December 2011 to December 2013. These documents made repeated references to the conduct of “the drivers” however no drivers were noted on employee records, which raised concerns regarding the provenance of drivers being engaged by the business.  A copy of a “Bus and Coach Operators Liaibility Questionnaire” emailed to an insurance broker was also submitted; though signed and dated by the applicant there was no evidence that had been provided which proved that this had been received by a third party compounding the question of how the bus drivers were engaged. Tax invoices for insurance renewal, dated 08 June 2012 and 07 June 2013 respectively, were also both addressed to Mr Ren.

15. The delegate noted that the applicant was only listed as a guarantor for one vehicle, a Toyota Corolla, and that Mr Ren was listed as guarantor for the two Mercedes Benz vehicles which were the primary vehicles used in the business operations. The delegate noted that two tax invoices pertaining to the refit of these vehicles had been made out to JJ Travel Services (JJ Travel) (Mr Ren’s business).  In addition to this the website for JJ Travel listed a telephone number and address which was identical to that given for Minz on the ASIC extract submitted to the Department.

16. The applicant also submitted two tax invoices for Minz. The address provided on both differed to that on the ASIC extract, and the services billed were for the use of two Toyota vehicles which were not a part of the Minz inventory. Bookings and itineraries given provided no reference to the applicant, and were therefore not given weight, and the phone bills provided for Minz appeared to have been directed to the home address of Mr Ren.

17. The delegate in the first visa application having regard to all of the evidence before them concluded that JJ Travel and Benz Luxury Coach and Tour belonged to Rentong Investments which was owned by Mr Ren.  The delegate further concluded that given the prominence of Mr Ren in the operations of Minz and his dominant position in Rentong the delegate could not be convinced that the applicant had the autonomy to effectively make decisions affecting the overall direction and performance of Minz investment (Aust) Pty Ltd. Therefore r.1.11 had not been met and consequently, 890.211(1) could not be met and the application was refused.

    Merits Review Before the Migration Review Tribunal

18. On 23 July 2014 the applicant applied for merits review of the Subclass 890 visa refusal. The applicant was represented before the Migration Review Tribunal (MRT) by a registered migration agent. On 06 May 2015 the MRT affirmed the decision under review finding the applicant did not meet 890.211(1) of Schedule 2 of the Migration Regulations.

19. The MRT was not satisfied that the applicant made decisions affecting the overall direction and performance of Minz during the requisite two year period prior to lodgement of the visa application. The MRT found that the applicant was familiar with the administrative side of business operations, but was not satisfied that she was involved in making decisions pertaining to the overall direction and decision making of the business. The MRT made findings that the business was controlled and operated by Mr Ren – noting that Minz operated from premises that it shared with JJ Travel, that Mr Ren had purchased the business vehicles and was responsible for the refitting costs and that Minz had the same physical address and phone numbers as JJ Travel.

20. The MRT found that Mr Ren’s involvement in Minz was significant as evidenced by him being registered as the manager/director to meet requirements of the NSW Transport Act (1990) in 2012.  The MRT made adverse findings that the applicant was not aware of the fact that Mr Ren was using Minz vehicles in advertising for his business JJ Travel. 

21. The MRT concluded that the arrangement the applicant had in place saw “Mr Ren occupy the role responsible for making decisions affecting the overall direction and performance of the business in Australia without regard to Ms Wang’s involvement from the establishment of the company. In the Tribunal’s view this was the nature of the arrangement in 2011 and continues up to the present time, with Ms Wang being involved in business operations only as a pretence for the purpose of this application. In the Tribunal’s view this explains why the company has never established a separate business premises, why it only undertook joint activities in advertising in China, why it is done virtually no advertising of any sort since that time and why the position of JJ Travel was updated through available media after the recent move and that of Minz was not. The Tribunal acknowledges that formal documentation has been completed to establish the business and the formal role of Ms Wang in it, that the company operates bank accounts through which funds are channelled but does not believe these evidence a true picture of the circumstances of how decisions affecting the overall direction and performance of the business have been made.”

    PRE HEARING SUBMISSION

22. The Tribunal received a prehearing submission on 15 August 2019 which was dated 15 August 2019. The submission has been duly considered. The submission notes that the applicant was reliant on all information provided including previous submissions lodged with the Department of Home Affairs. The submission refutes the findings of the Department pertaining to the applicant’s involvement in the management of Minz from day-to-day and in making decisions affecting the overall direction and performance of the business for the period 17 September 2013 to 18 March 2014 (the overlap period) and during the relevant period of 17 September 2013 to 17 September 2015.

23. The submission contained a number of annexures. These included company historical data; meeting minutes and sample of diary notes which ran from 12 October 2015 to 12 July 2019; the New South Wales Bus and Coach Operator Qualification dated 30 March 2012; a Certificate of Accreditation dated 15 May 2018; financial statements from 2016 through to 2018; evidence of the purchase of new vehicles; evidence of email communication; business insurance documents; documents evidencing daily involvement in the management of the business; and a lease document.

    HEARING 22 OCTOBER 2019

24. At the outset of the review hearing the Tribunal noted that the applicant applied for the visa that is the subject of the review on 17 September 2015. The Tribunal noted that the Department made an adverse decision on the application on 11 November 2016. The Tribunal noted that the main business of the applicant is Minz Investment (Australia) Pty Ltd trading as Minz Coach and Tour. 

25. The Tribunal noted that cl 890.211 requires amongst other things that the applicant has 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 for at least two years immediately before the application is made. The Tribunal noted that the relevant two-year period was from 17 September 2013 through 17 September 2015.

26. The Tribunal noted that the applicant lodged a previous business skills visa application on 18 March 2014 which was refused on the basis that the applicant did not meet the requirements of cl. 890.211.  The Tribunal noted that the refusal was on the basis of the applicant not being able to satisfy the Departmental delegate that she has 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 for at least two years immediately before the application was made.

27. The Tribunal noted that the applicant applied for merits review before the then MRT and that on 6 May 2015 the MRT affirmed the decision to refuse the visa application on the basis that the applicant was not able to satisfy the Tribunal that she 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.

28. The Tribunal noted that the MRT determined that the applicant was not involved in the management of Minz Investment and that the claimed business activity attributed to Minz Investment arose directly from an arrangement with the founding director Mr Ren in an attempt to secure a visa outcome.

29. The Tribunal noted that the previous period in which the applicant needed to establish direct and continuous involvement in the management of the business was from 18 March 2012 to 18 March 2014. The Tribunal noted that for the purposes of the current application the relevant period is 17 September 2013 to 17 September 2015.

30. The Tribunal made reference to the Departmental delegate’s determination which noted that given the previous findings of the MRT and the dismissal of the applicant’s application for judicial review in her previous application along with the delegate’s assessment of the evidence before them they could not be satisfied that the applicant maintained direct and continuous involvement in the management of Minz during the requisite period.

31. The Tribunal outlined for the benefit of the applicant the process of merits review and noted that it had considered the evidence that had been provided to the Department in support of the application, it had also considered the evidence provided at review and had regard to the evidence that had been provided in the previous 890 application to the Department along with the decision of the MRT that had been upheld on judicial review.

32. The applicant gave her personal details and date of birth.

33. The Tribunal asked the applicant when she came to Australia for the first time. The applicant stated that she came to Australia on 31 January 2011 as the holder of a Subclass 163 visa. The Tribunal asked the applicant whether this visa enabled her to explore business opportunities in Australia and the applicant advised that it did.

34. The Tribunal asked the applicant what business opportunities she explored when she came to Australia at this time. The applicant stated that she had a friend in Sydney who introduced her to Mr Ren and that he took the applicant around Sydney to explore business opportunities such as café’s, small eateries, and ‘tourist’.  The Tribunal asked the applicant what she meant by ‘tourist’ and the applicant stated she meant the tourist environment.

35. The Tribunal asked the applicant what assessment she made of the tourist environment. The applicant stated that when Chinese tourists come to Sydney for sightseeing, what they would like to see and where they would like to go and the demands of Chinese customers. The applicant stated that she believed that there was an opportunity to get involved in this type of venture.

36. The Tribunal asked the applicant how she knew Mr Ren and the applicant advised that he was a mutual friend of both her and her husband. The Tribunal asked the applicant how long she had known Mr Ren for and she advised from 2011 to 2019.

37. The Tribunal asked the applicant whether Mr Ren operated a business in Sydney and she advised that he operated JJ Travel. The Tribunal asked the applicant what the address of this business premises was and she advised shop 9/3-9 Spring Street Chatswood and the applicant confirmed that she and Mr Ren rented the same office.

38. The Tribunal asked the applicant why she and Mr Ren rented the same office and what the reason was for this arrangement.  The applicant stated that she rented this office and that Mr Ren offered to rent part of the office space to save costs and they could use the office to refer business to one another. The Tribunal asked the applicant whether Minz was the first business at this address and whether JJ Travel joined at a later time. The applicant stated that she rented the place initially and that Mr Ren offered to pay rent to her for part of the office space.

39. The Tribunal asked the applicant how long Mr Ren had been in Australia and she advised from more than 20 years. The Tribunal asked the applicant what Mr Ren had done in terms of business activity in Australia. The applicant advised that his business was JJ Travel service which was involved in airline ticket bookings and hotel bookings. The Tribunal asked the applicant whether JJ Travel had ever run a coach service. The applicant stated that she did not pay attention to this however a mutual friend had told her that JJ Travel had never run a coach business.

40. The Tribunal advised the applicant that it had undertaken an ASIC search for the business name JJ Travel Service. The Tribunal handed the applicant a copy of the business name search for JJ Travel Service and asked the applicant whether she could read the business names associated with this business listed in the document with the assistance of an interpreter. The Tribunal noted that the ASIC search indicated the JJ Travel Service was involved in coach and limousine travel services. The Tribunal asked the applicant to comment on this. The applicant stated that Mr Ren was an employee of Minz and that he was the Operations Manager for Minz.  The applicant stated that she knew that he had JJ Travel under his name. The applicant stated that she did not know about the other businesses that were registered with ASIC as this was Mr Ren’s business operation.

1. The Tribunal asked the applicant what year she purchased coaches for the operation of her travel business. The applicant stated that she had just purchased two new coaches. The Tribunal repeated the question and asked the applicant when she first purchased coaches in Australia and the applicant advised in 2011 she purchased a Mercedes 11 seat vehicle, a van. The Tribunal asked the applicant where she purchased the vehicle from and the applicant advised from the Mercedes shop. She advised she could not remember where she purchased it as it was a long time ago. The Tribunal noted that it found this difficult to accept given that the purchase of coaches was the most significant investment made by this business and the business operation was running tourist coaches. The Tribunal noted that 8 years ago the applicant made the biggest investment for her business but could not remember where she purchased the Mercedes van from. The applicant was invited to comment on this. The applicant advised that in January 2011 she met Mr Ren on a trip to explore business opportunities. The applicant stated on 17 June 2011 she registered her company. She advised that she was not in Sydney at the time so an acquaintance suggested that she use Mr Ren to register the company on her behalf. The applicant stated that she did this because she did not have a Sydney address and she was in China at that time.

2. The Tribunal asked the applicant whether she went to the showroom herself to purchase the first Mercedes coach and whether she liaised with salesmen with regard to the purchase. The applicant stated that no she did not during the preparation and start-up of the business. She advised that Mr Ren helped with the registration of the business and Mr Ren also helped the applicant buy the coach along with her husband.

3. The Tribunal noted based on the applicant’s response that she did not purchase the coach herself. The applicant stated that she did not go to purchase the coach. She advised that she did not think it was important. She advised that Mr Ren told her all the information about the coach and the price and that it was her decision to make the purchase. The Tribunal asked the applicant whether she could remember the price of the coach and the model of the vehicle. The applicant stated that it was a new coach and that it was more than $80,000. The Tribunal noted that this response was somewhat vague. The Tribunal sought further clarification from the applicant. The applicant stated it was a little more than $80,000. Once again the Tribunal asked the applicant the approximate cost of the coach and the applicant stated about $80,000. She advised that Mr Ren told her the price, the model, and how many seats. The applicant stated that the location of the dealership was not a big issue and that she made the final decision.

4. The Tribunal asked the applicant what the next vehicle was that the business purchased and whether she was involved in the purchase of that vehicle. The applicant stated that the second vehicle purchased in 2011 was a 14 seat Mercedes van that was brand-new. Once again the Tribunal asked the applicant whether she attended the showroom to view the vehicle and to negotiate on the price of the vehicle. The applicant stated that she did not as she was satisfied with the previous purchase so she sent her friend Mr Ren. The Tribunal asked the applicant whether she believed that as the business owner it would be in her best interest to attend the showroom, inspect the vehicle, negotiate on price or determine what to purchase for example a new vehicle, used vehicle, or a demonstration vehicle. The applicant was invited to comment on this. The applicant stated that Mr Ren sent her photos and that she did some research online and that it was not necessary for her to go to the showroom. The Tribunal asked the applicant how much the vehicle cost and she said about $90,000 and there was an extra cost of $10,000 for renovation of the vehicle. The Tribunal asked the applicant about the purchase of a third vehicle, namely when it was purchased and what was purchased. The applicant stated in September 2016 she purchased a 12 seat Mercedes van. The Tribunal asked the applicant whether the business still retained the two vehicles purchased in 2011 namely the 14 seater and the 11 seater, and the applicant stated they were both sold in 2016. The Tribunal stated that this indicated that the applicant ran two coaches the 14 seat Mercedes and the 11 seat Mercedes between 2011 and 2016 and the applicant advised that this was correct.

5. The Tribunal asked the applicant based on her responses whether she was now just running one coach. The applicant stated that she purchased two coaches in 2016 both 12 seat Mercedes coaches 1 in September and 1 in December. The Tribunal asked the applicant whether she was currently running two coaches and she advised that she was running both of the 12 seat Mercedes coaches.

6. The Tribunal asked the applicant whether she purchased a motor vehicle apart from the coaches. The applicant stated that in 2011 she purchased a Toyota Corolla for the business and that she still has that vehicle.

7. The Tribunal asked the applicant whether she attended the Mercedes showrooms for the purchase of the vehicles in 2016. The applicant stated that both she and Mr Ren went to the showroom. The Tribunal asked the applicant where the showroom was located. The applicant stated that she could not remember but it was close to Sydney airport. The applicant advised that Mr Ren drove her there because she did not know the exact location. The applicant stated that she only paid attention to which coach she wanted to purchase. The applicant stated that the purchases of coaches in 2016 cost around $90,000 per vehicle.

8. The Tribunal asked the applicant about the two coaches purchased in 2011 and the names that they were registered in. The applicant stated that they were registered in the name of Minz Investment Pty Ltd.  The Tribunal asked what name the Toyota Corolla was registered in and she advised the same business name.

9. The Tribunal asked whether the new coaches that she had purchased in 2011 and the coaches that she had purchased in 2016 were the subject of a depreciation schedule for the purposes of taxation.  The applicant stated that ‘talking about this I do have some issues with my employee. In 2011 when I purchased these two coaches I should have been able to get some GST refund. But my employee did not know much about taxation so they did a one-off refund.”  The Tribunal asked the applicant who this employee was and she advised it was a secretary working for her in the business, Ms Ling.  The Tribunal asked the applicant whether she got her secretary to do her tax. The applicant stated that because her English was not good she asked her secretary to correspond with someone else. The Tribunal stated that this was all very vague and asked for further clarification. The applicant stated that she asked her secretary to contact the Australian Tax Office. The applicant stated that she was gradually getting better at these things.

10. The Tribunal asked the applicant whether since the commencement of the business in 2011 she had obtained depreciation schedules for the new coaches for taxation purposes. The applicant stated that she had done this for the new coaches and that she gets depreciation for the coaches. The Tribunal asked the applicant again whether she obtained depreciation schedules and the applicant advised that she did.

11. The Tribunal noted that a Certificate of Accreditation issued by New South Wales Transport on 19 June 2012 and the accompanying letter indicate Mr Ren is the designated Manager and Director of Minz for the purposes of accreditation in accordance with the Passenger Transport Act. The Tribunal noted that the Departmental delegate expressed concerns that for the purpose of obtaining accreditation for the coaches in accordance with the Passenger Transport Act 1990 Mr Ren was the designated person in these documents. The applicant was invited to comment on this. The applicant stated that Mr Ren has completed a coach and bus operators course and that a person was required to be a permanent resident or citizen for these purposes. The applicant stated that because Mr Ren was her friend and when she was not in Sydney he was the director of the company as she trusted him. The applicant stated that for Minz Coach and Tour to be accredited that the accrediting body asked for somebody with this certification and “that is why I invited him in.”

12. The Tribunal noted that initial lease documents signed for the Chatswood business premises were signed by Mr Ren not by the applicant. The applicant was invited to comment on this. The applicant stated that she was not in Sydney at the time and Mr Ren was a Director of the company. The applicant stated that she became a director on 22 September 2011.

13. The Tribunal asked the applicant whether Mr Ren was the subject of a power of attorney to act on the applicant’s behalf for the execution of the lease for the Chatswood premises. The applicant stated that there was a power of attorney in favour of Mr Ren. The Tribunal asked the applicant when she first signed the lease for the property at Chatswood and she advised in September 2011 when Mr Ren was a director of the business. The applicant advised between 17 June 2011 and 22 September 2011 Mr Ren was a director of the business, and that he was a previous director but acted upon the applicant’s instructions and all the decisions pertaining to the company were made by the applicant.

14. The Tribunal noted that documents provided to the Department regarding rentals did not refer to the applicant but referred to Mr Ren when he was neither a director nor employee of the company. The applicant was invited to comment on this.  The applicant stated that the first lease agreement was signed by Mr Ren, but the lease agreement on 1 July 2014 was signed by her as director.

15. The Tribunal asked the applicant what type of insurance coverage she had for her coaches in 2011 and in 2016 and who she insured them with. The applicant stated that in 2011 the business used Australian Brokers. The applicant stated that in 2016 the business used Australian Brokers and Eagle Insurance. The Tribunal noted that brokers look for respective insurers on behalf of a client and once again asked the applicant who the insurers for the coaches were. The applicant stated that the business just paid the brokers. The Tribunal asked the applicant what premiums were payable for insurance of the coaches in 2011 and the applicant advised that she could not remember. The Tribunal asked the applicant what premiums were paid for the coaches in 2016 and the applicant advised that she could not remember and that it was roughly $7000 for the two vehicles.

16. The Tribunal asked the applicant as she was running passenger vehicles in New South Wales what sort of insurances she needed for this type of operation. The applicant stated that one insurance was for the vehicle itself and there was also liability insurance. The applicant stated that she believed it was around $6000 to insure the vehicle and $1000 for liability.

17. The Tribunal asked the applicant where the coaches were housed in 2011 and where they were currently hosued. The applicant stated that the coaches were currently parked somewhere near her office in a bus zone and that they are parked on the street. The applicant stated that she used to rent a car park from a company called Xin Hui that who were based in Sydney. The Tribunal asked whereabouts in Sydney this company was located and she advised somewhere in Chinatown.

18. The Tribunal proceeded to give the applicant clear particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The Tribunal went into a detailed explanation as to why the Tribunal believes that this information was relevant to the review and the consequences of the information being relied on in affirming the decision under review and the Tribunal invited the applicant to orally comment or respond to the information.

19. The Tribunal noted that the MRT had written to the applicant on 20 March 2015 under Section 359A of the Migration Act inviting the applicant to comment on information that the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal made reference to the letter MRT of 20 March 2015. The Tribunal noted that the MRT had undertaken a website search for Minz Coach and Tour the only business operated by Minz Investment (Aust) Pty Ltd. The letter noted that the search produced a webpage with a photograph of two commercial vehicles and contact details of the business. The letter noted that the address provided was not the premises where the business claimed to be currently operating and the website link to the business was not available. That Tribunal noted in its letter that when a search was done for JJ Travel this produced a photograph of three commercial vehicles, two of which the applicant identified at hearing before the MRT as being assets of Minz Investment (Aust) Pty Ltd. The applicant at hearing before the MRT advised that she was not aware the coaches were being used in this advertising. The address provided for JJ Travel was the address which appeared on the applicant’s business card for Minz Coach and Tour. The website indicated that JJ Travel operated daily coach tours in New South Wales and the website of JJ Travel attached to the page was operating. The MRT noted that the information was relevant because it may indicate that the arrangements for Minz Investment (Aust) Pty Ltd to hold assets which are advertised as being used for the service of JJ Travel has been organised only to assist the applicant and her family members with applications for visas to remain in Australia. The Tribunal that the MRT noted in its 2015 decision record that the applicant had stated that it “was misleading for JJ Travel to include details of Minz vehicles, and after the hearing the applicants advised they were removed.”

20. The Tribunal noted that it had conducted a web search of JJ Travel on 22 July 2019 whilst preparing for the review hearing. The Tribunal noted that the web search indicated that there were still photographs of Minz vehicles some 4 years later being used to promote Australian high-end tourism to the Chinese market on the JJ Travel website and that the website made reference to the Mercedes business travel team and its current Chinese fleet of Mercedes-Benz luxury business buses. The Tribunal provided the applicant with a copy of the web search. The Tribunal noted that the applicant had given evidence to the MRT upon being advised of the use of Minz coaches in JJ Travel advertising that she would ensure that they were removed from the JJ Travel website.  The Tribunal noted that this had not occurred and more than four years after the MRT hearing they were still being used in July 2019.  The Tribunal noted that the information was relevant to the review because it may indicate that the assets held by Minz were being used for the services of JJ Travel and that the Tribunal may conclude from the information that the applicant has not maintained direct and continuous involvement in the management of Minz Coach and Tour from day-to-day or in making decisions affecting the overall direction and performance of the business, because those relevant decisions and indeed the day-to-day management is in fact made by Mr Ren in association with JJ Travel and that the two businesses are intrinsically linked.  The Tribunal noted that a search of the JJ Travel website just prior to the review hearing indicated that it was “under construction” and the web page was not accessible.

21. The Tribunal asked the applicant whether she wished to orally comment on or respond to this information and the Tribunal offered an adjournment so that the applicant could consult with her representative.  The Tribunal also noted that if the applicant sought additional time to comment on or respond to the information the Tribunal could adjourn the review to allow the applicant additional time to comment. The hearing was adjourned to enable the applicant to consult with a representative

22. Upon resumption of the hearing the applicant advised that she wished to respond in writing. The Tribunal asked the applicant given that this had been an ongoing issue since the MRT review of 2015 why the applicant needed additional time to comment on the information that had been put to her under s.359AA. The applicant stated that at the previous hearing in 2015 she had no idea that Mr Ren was using her vehicles in advertising. She advised that after the hearing she went back and asked Mr Ren to remove the advertisements as this had adverse consequences for her. The applicant stated that now this is happening again and that she will investigate after the hearing as it is detrimental to her interests. The applicant stated that Mr Ren is her employee and if what is doing is detrimental to her interests she wants time to investigate. The Tribunal consented to a further period of time for the applicant to respond to its concerns in writing.

23. The Tribunal asked the applicant how the business attracts tourists. The applicant stated that the business had a website and that they would distribute pamphlets and that the business had a good reputation from previous customers. The Tribunal asked the applicant where the pamphlets were distributed and the applicant stated from her office and that she would distribute them on the street in Chatswood.

24. The Tribunal asked the applicant if it was to look closely at the applicant’s businesses profit and loss statements for the business between 2011 and 2019 what the documents would reveal in terms of the business. The applicant stated that she believed her business was stable at the moment and that her management of the business was improving.

25. The Tribunal asked the applicant whether the businesses profitability was improving over time. The applicant stated in only one year she declared a loss which was for the 2016 financial year and other than that she had always made a profit.

26. The Tribunal asked the applicant what she believed the 2016 loss was attributable to. The applicant stated that the two old Mercedes coaches repair bills were high in that year of 2016.

27. The Tribunal asked the applicant where she had her coaches repaired and she advised at the Mercedes dealership. The Tribunal asked the applicant where the Mercedes dealership was located and the applicant advised “where I purchased the coaches we always bring it there.” The Tribunal asked what suburb it was located in and the applicant stated she did not know and that it was somewhere close to the airport.

28. The Tribunal noted that a bus and coach operators liability questionnaire was signed by the applicant that indicated that no contractors or labour hire was used in the operation of the business. The applicant stated that she had a manager operating the coaches.

29. The Tribunal asked the applicant what a bus and coach operators liability questionnaire was required for. The applicant stated that she did sign this document that she could not remember what it was about.

30. The Tribunal asked the applicant why tax invoices for insurance renewal in 2012 and 2013 referred to Mr Ren and not to the applicant. The applicant stated that the insurance policy is in the name of Minz Investment and the applicant stated that Mr Ren was the contact person as her English was not good.

31. The Tribunal noted that Vodafone tax invoices over 2012 and 2013 were addressed to premises which appeared to be the offices of JJ Travel Service operated by Mr Ren. The applicant was invited to comment on this. The applicant stated that at the start of the business Mr Ren was the director and all these bills and insurances were managed by Mr Ren as he was the only contact person. The applicant stated that Mr Ren was not in control of the business he was only the contact person. The applicant stated that she wanted Mr Ren to assist with correspondence and deal with other services and that this did not mean that he was in control of the business.

1. The Tribunal noted that the applicant co-located to the same business premises as JJ Travel and asked the applicant how these two businesses interrelated. The applicant stated that JJ Travel Service pays rent to her. She further advised that JJ Travel rents a vehicle from her business for payment that is used to pick up customers from the airport and drive them to their hotel. The Tribunal asked the applicant how much this arrangement netted for the business each year and the applicant stated it had not been a long-term arrangement. The Tribunal once again asked the applicant how much this arrangement netted for her business each year and the applicant stated “only when he needs it”.

2. The Tribunal noted that both telephone numbers appeared to be on the business contact details for both Minz Investment and JJ Travel. The applicant stated this was no longer the case. The Tribunal asked the applicant whether she had business cards in her possession for her business. The applicant provided the business cards in her possession. The Tribunal noted two different addresses on the business cards one for Neridah Street and the other for Spring Street and asked the applicant why she still retained old business cards. The applicant stated that she must have had one or two old business cards in her wallet.

3. The Tribunal asked the applicant who had been the contact person for the purpose of vehicle refits. The applicant stated her Operations Manager Mr Ren. The Tribunal asked whether Mr Ren was still in the role of Operations Manager for her business and she advised that he was.

4. The Tribunal asked the applicant how JJ Travel operates in its own right and how Mr Ren fulfils his role as Operations Manager for Minz Investment. The Tribunal asked the applicant what the interplay in that relationship was. The Tribunal asked the applicant how Mr Ren operates his own business. The Tribunal asked the applicant what hours Mr Ren did in the applicant’s business. The applicant stated that Mr Ren was the Operations Manager and the driver and she advised that if he does not have a tour he works from 10 until 6. She advised that Mr Ren will tell her one day before the tour where he is going and the hours he will be absent.

5. The Tribunal asked the applicant whether she had a contract of employment with Mr Ren and she advised that she did. The Tribunal asked whether the contract of employment was regularly updated and the applicant stated it was a long-term contract from October 2013.

6. The Tribunal asked the applicant whether the coaches that she used to transport Chinese tourists are also the same coaches used by Mr Ren to pick up tourists from the airport and drop them to their hotel. The applicant stated that “Mr Ren is my employee so when JJ Travel rents a vehicle from us we get paid”

7. The Tribunal asked the applicant whether she believed there was a conflict between Mr Ren being an employee of Minz Investment and running JJ Travel.  The applicant stated “no it is just business.”

8. The Tribunal asked the applicant whether she believed there is a conflict when Mr Ren is hiring her coach and transporting Chinese tourists to the airport or to a hotel when he is also an employee of her business. The applicant was invited to comment on this. The applicant stated that Mr Ren is her employee and during his working hours for her business he does not run his business as he has his own employees.

9. The Tribunal asked the applicant if it was to visit her business premises at Chatswood that is co-located with JJ Travel what it would observe. The applicant stated that the Tribunal would observe that Mr Ren reports to her. The Tribunal asked the applicant what it would observe in terms of the physical layout of the business. The applicant stated that half the office is used by JJ Travel and half the office is used by Minz.

10. The Tribunal asked the applicant whether Mr Ren sat on the JJ Travel side of the office or on the Minz Investment side of the office.  The applicant stated that Mr Ren sat on her side of the office because he is her employee. The applicant stated that JJ Travel rents an office space but Mr Ren is her employee.

11. The Tribunal asked the applicant what she would value the total assets of her business at currently. The applicant replied ‘vehicles plus cash’. The Tribunal asked the applicant what she would value her business at currently providing a monetary figure. The applicant asked the Tribunal why it was asking this question stating that it would be the value of assets and the value of her business together. The Tribunal once again asked the applicant what she would value her business assets at and what she would value her business goodwill at. The applicant stated “I do not intend to sell my business I worked hard in this business since 2011.”

12. The Tribunal asked the applicant whether she was able to give an approximation of what the assets of the business were worth. The applicant stated that she made an initial investment in the business and that the two new coaches are the assets of the business.

13. The Tribunal noted that the applicant was a bus operator running a business carrying tourists and asked the applicant what she needed as a bus operator to meet regulatory requirements. The applicant stated that her vehicle is needed to be registered and she needed to complete an annual self-inspection report that is submitted to the Roads and Maritime Service. The applicant stated that her vehicles had to undergo heavy vehicle inspection two times a year.

14. The Tribunal asked the applicant where heavy vehicle inspection took place. The applicant stated that she had an Operations Manager and he reports to her and he organises for this to happen. The Tribunal asked the applicant whether the inspections took place at her place of business or off-site. The applicant stated that “we have to drive the vehicles to the same place somewhere near the airport.” The applicant stated that “I want to reiterate I am the director and all detailed operations are the duty of the operations manager.”

15. The Tribunal asked the applicant for details of the role of the Operations Manager in the business. The applicant stated the Operations Manager was involved in the operation of the vehicles, managing drivers, and that everything that he does he reports to her directly.

16. The Tribunal asked the applicant what the operations manager did in terms of his contract of employment. The applicant stated that he managed vehicles and that sales were managed separately as the business had a website and operated on referrals. The Tribunal asked the applicant what Mr Ren did apart from management of the vehicles and the applicant advised that he worked as a driver of vehicles.

17. The Tribunal asked the applicant given that she ran a tourism business operating tourism coaches for Chinese visitors whether the business had established links with Tourism New South Wales or indeed any tourism body in New South Wales. The applicant stated that her business has information that was entered into the Tourism New South Wales website.

18. The Tribunal asked the applicant whether she had engaged with any tourism bodies in China to promote her Australian based business. The applicant stated that her clients were direct clients through the website and the applicant stated that she ran a promotional event in China before she came to Australia and this occurred on 25 August 2011.

19. The Tribunal noted that Australia has a large Chinese tourist base and asked the applicant whether she had established links with tourism organisations in China to tap into this to promote her business. The applicant stated through her website and also through referrals and connections through friends.

20. The Tribunal asked the applicant whether she had established links with tourism organisations in China apart from the event that she hosted in Shanghai in 2011. The applicant stated that in 2017 she attended a tourist event at the Sydney Opera House promoting China Australia tourism.

21. The Tribunal asked the applicant whether her husband had any involvement in the business and she advised that sometimes she has telephone calls with her husband and that he runs his own business in Shanghai. The Tribunal asked the applicant how much time her husband spent in Shanghai and how much time in Australia and she advised that he mainly looked after the business in Shanghai and spent most of his time there.

22. The Tribunal asked the applicant about the operation of the Bus Operator Accreditation Scheme. The applicant stated it allowed her business to operate a tourist bus business. The Tribunal asked the applicant whether she had to undertake a course of accreditation to obtain this. She advised that one person needed to have this accreditation. The Tribunal asked the applicant who held this accreditation and she advised Mr Ren.

23. The Tribunal took evidence from the applicant’s husband Mr Sun.  The Tribunal asked the witness what evidence he wanted to provide to the Tribunal pertaining to this application for review. The witness stated any questions the Member had of him. The Tribunal noted that this application had been ongoing for a number of years and had a long history and asked the witness to provide any evidence that he wished to provide.

24. The witness stated that in February 2011 he and his wife came to Australia to explore business opportunities. The witness stated that in May 2011 he came back to Sydney because his wife wanted to do more research. In June 2011 he came to Sydney and went to a dealership to inspect the vehicle and handle registration matters of the company. The witness stated that because they did not have an address and account and suggested that they use the address of Mr Ren. The Tribunal asked the witness whether there was any further evidence that he wished to provide and he advised that he did not.

25. The Tribunal deferred to the applicant’s representative and noted that the applicant would be providing a post hearing response to the information put to her under s.359AA stated that if there are any additional relevant issues that the applicant’s representative wish to raise he could provide those in the post hearing submission. The Tribunal asked the applicant’s representative how long he needed to provide a response and he asked for a month which was duly granted.

26. The Tribunal received a response to the information put to the applicant under s.359AA dated 1 November 2019.

27. The response to the 359AA issues noted that the photographs depicted in the webpage, a copy of which was provided to the applicant at hearing did contain a vehicle that originally belonged to the applicant Ms Wang.  However the submission noted that the applicant sold this vehicle to Figers Holdings Pty Ltd in 2016. Also provided was a statutory declaration from Mr Ren dated 31 October 2019. Mr Ren in his statement confirms that he operates his own website for JJ Travel but did not have any photos of coaches belonging to Minz on it.  Mr Ren states that the Minz coach showed in the image from his website number plate TV8748 had been sold to another company in October 2016. Mr Ren stated that the additional business names registered with ASIC namely Benz Limo Service and Benz Limousine and Coach Service had only been legally registered with ASIC as business names only. Also provided was a document from Craig Figtree the Director Manager of Figers Holdings dated 20 June 2018 indicating that images of vehicles owned by Figers were being used by JJ Travel with the knowledge and authority of Figers. A website search of Figers Holdings indicates that this business runs Sydney Adventure Tours located in Vista Avenue Mosman and its website contained images of Mercedes Vans.

    FINDINGS AND REASONS

28. Clause 890.211(1) of Schedule 2 to the Regulations is one of the criteria which must be satisfied at the time of the visa application. It provides as follows:

    The applicant has had, and continues to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application is made.

100.   Regulation 1.11 as it applies in this case defines a ‘main business’ as follows:

for the purposes of these regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:

(a)the applicant has, or has had, an ownership interest in the business;

(b)and the applicant maintains, or has maintained, 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; and

(c)the value of the applicant’s ownership interest or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:

(i)if the business is operated by a publicly listed company-at least 10% of the total value of the business.

101.   The issue in the present case is whether the applicant has maintained direct and continuous involvement in the day-to-day management of Minz and in making decisions affecting the overall direction and performance of the business for the two years immediately before the application was made. The relevant two-year period in this case is from 17 September 2013 through to 17 September 2015.

102.   The evidence before the Tribunal indicates that Minz owns and operates two commercial vehicles which are used for this tourist/ passenger transport in Sydney focussing on the Chinese market and also owns one passenger vehicle a Toyota Corolla which is used by the applicant.

103.   The evidence before the Tribunal indicates that in 2011 the applicant travelled to Australia in order to determine an appropriate business venture to invest in in this country. The applicant considered investments in the hospitality sector and in the tourist sector.

104.   The applicant decided to invest in the tourist sector establishing a tour company that would use Mercedes-Benz vehicles focusing on the Chinese tourist market providing tourism services to that market. The evidence before the Tribunal indicates that the applicant partnered with Mr Jiaming Ren who operated a travel agency in Sydney JJ Travel Service.  Mr Ren’s business (an established business) sold airline tickets whilst the applicant’s business Minz would focus on the provision of tourist bus services to Chinese tourists. An agreement was made in 2011 that the two businesses would cooperate.

105.   The evidence before the Tribunal indicates that the applicant’s husband and Mr Ren attended a Mercedes dealership in Sydney for the purpose of purchasing two Mercedes-Benz buses for use in the business.

106.   The evidence before the Tribunal indicates that the applicant held a reception banquet to coincide with the establishment of Minz at the Four Point Sheraton Hotel in Shanghai which was organised by the applicant, her husband and Mr Ren. One hundred people attended this opening celebration.

107.   The evidence before the Tribunal indicates that initial bank accounts for the business were opened by Mr Ren, the vehicles purchased for the business were purchased by Mr Ren and the lease for the business was signed by Mr Ren.

108.   At the time of the applicant’s first application for a Subclass 890 visa on 18 March 2014, the Departmental delegate was concerned that the business activities of Minz were being orchestrated by Mr Ren and that the business did not operate independently of Mr Ren’s business, JJ Travel Service.  The Departmental delegate at that point in time made reference to a range of evidence that led the delegate to find that the business was not being operated independently from Mr Ren’s business and to find that Mr Ren was in fact directing the activities of Minz.

109.   The delegate was concerned that the Certificate of Accreditation issued by New South Wales Transport on 19 June 2012 required to establish tourist bus services in New South Wales was signed by Mr Ren as the Designated Manager/Director of Minz during a period where Mr Ren was neither a Director nor employee of Minz.

110.   The delegate was concerned that the initial lease documents for the business premises were executed by Mr Ren. Further to this documents provided to the Department with the initial 890 visa application pertaining to rental records did not refer to the applicant but made reference to Mr Ren during periods that he was not an employee or director of Minz.

111.   The delegate was concerned the tax invoices pertaining to insurance in 2012 and 2013 referred to Mr Ren and made no reference to the applicant.

112.   The delegate was concerned that the contracts for the purchase and supply of two Mercedes Benz buses was signed by Mr Ren and that the refit for these vehicles made reference to JJ Travel Service and not Minz.

113.   The delegate was concerned that Minz and JJ Travel Service shared identical business addresses and contact information in records provided to the Department with that application.

114.   This evidence led the Department to find that the applicant did not have an ownership interest in one or more actively operating main businesses for at least two years immediately before the application was made and that the applicant maintained or has maintained 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.

115.   As has been noted above the Departmental delegate in the decision record that is the subject of this review which is dated 11 November 2016 found no basis from which to depart from the findings of the previous Departmental delegate and indeed the MRT findings at merits review, a decision which the delegate noted was upheld at judicial review. The delegate found that it had been clearly determined by the MRT that the applicant did not maintain direct and continuous involvement in the management of the business from day-to-day and in making decisions that affected the overall direction and performance of the business during the period 18 March 2012 to 18 March 2014. The delegate noted the relevant period for the current application was 17 September 2013 to 17 September 2015. The delegate found given the determination in the previous application and based on the evidence provided with the application that the applicant did not maintain 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 throughout the requisite period and did not meet the requirements of cl.890.211.

116.   The Tribunal noted that the applicant’s representative provided a submission with a large number of annexures to the Tribunal dated 15 August 2019. This included an ASIC historical extract for the business. It also included meeting minutes for the business chaired by the applicant with Mr Ren in attendance for a number of these meetings. The minutes provided covered the period from 12 October 2015 through to 4 July 2019. The minutes on their face suggest regular meetings within the business but are outside the requisite period for the Tribunal’s consideration with regard to evidence of direct and continuous involvement in the management of the business from day to day and in making decisions that affected the overall direction and performance of the business namely the period 17 September 2013 through to 17 September 2015 and thus no weight is placed on this evidence.

117.   Also provided as part of these annexures were diary notes that run from August 2015 through to July 2017. Also provided to the Tribunal were the financials for the business including profit and loss statements for the 2016, 2017 and 2018 financial years. Also provided were two tax invoices pertaining to the purchase of two new Mercedes vehicles in September 2016 and December 2016. Evidence pertaining to the purchase of office supplies, the renegotiation of the Spring Street Chatswood lease in 2018 and the appointment of insurance brokers in 2018.

118.   The bulk of this evidence provided in August 2019 pertains to business activity and decision-making in the business over 2016, 2017 and 2018 and there is scant material pertaining to the relevant period in question namely 17 September 2013 through 17 September 2015.

119.   The Tribunal has carefully considered all of the evidence before it. The Tribunal finds for the following reasons that the applicant has not had the requisite level of involvement in making decisions that affect the overall direction and performance of Minz during the requisite period, namely, 17 September 2013 through to 17 September 2015.

120.   The Tribunal accepts that the applicant through her involvement with the business since 2011 is familiar with the business operations but the Tribunal finds that the applicant since the inception of the business in 2011 has not been involved in making decisions that affect the overall direction and performance of the business. The Tribunal notes having regard to the relevant regulatory definition that there is no requirement that the applicant have full responsibility for making decisions affecting the overall direction and performance of the business but only an involvement in those matters. However having regard to all of the evidence before the Tribunal it cannot be satisfied that since the inception of the business to date that the applicant has had any relevant involvement in critical decisions pertaining to the overall direction and performance of the business.

121.   The Tribunal finds that Mr Jianming Ren has since the establishment of the business in 2011 made all of the critical decisions pertaining to the overall direction and performance of the business.

122.   As noted this evidence indicates that Mr Ren was the designated Manager/Director of the business for the purposes of accreditation under the Passenger Transport Act 1990 NSW.  In addition to this Mr Ren signed initial lease documents for the business and he purchased the tourist buses for the business in 2011 and again in 2016 and was responsible for the refit of these vehicles.

123.   As noted the sole existence of this business is to provide a luxury bus services to Chinese tourists visiting Australia. Intrinsic to this business are the buses being chosen and the respective fit outs of these buses.  The evidence before the Tribunal indicates that the applicant was not involved in the direct purchase of these buses, nor was she involved in the fit outs. This responsibility was left to Mr Ren who was intrinsically involved in this process.  The evidence before the Tribunal indicates that the applicant could not name the Mercedes-Benz dealership that the buses were purchased at, and where they are serviced at, and she confirmed in her evidence that she was not involved in this process.

124.   The evidence before the Tribunal indicates that Mr Ren was engaged by the applicant to work in a position of Operations and Sales Manager on 16 October 2013. A copy of the contract of employment has been provided to the Tribunal. This indicates that Mr Ren is expected to work a 38 hour week and his position description indicates that he is involved in tour bookings, driver rostering, vehicle maintenance, oversight of drivers, ensuring the vehicles are in proper working order, supervising and recording departure and return of all tours, soliciting feedback from tour participants and ensuring correct remuneration is paid to drivers. The evidence provided to the Tribunal indicates that simultaneously Mr Ren operates his own business JJ Travel involved in the tourist industry, airline bookings, and utilising buses owned by Minz to pick up and drop off Chinese tourists to the airport.   The Tribunal finds that this evidence is indicative of the fact that Mr Ren is intrinsically involved in making decisions that affect the overall direction and performance of the Minz business which trades as a coach and tour business pitched at the Chinese market.  This is evidenced by the fact that the applicant and Mr Ren share business premises and since the establishment of the business by the applicant in 2011 the business had never run autonomously from JJ Travel and the Tribunal finds this is because Mr Ren has the requisite skill set to run such a business and the applicant has merely used the business as a vehicle to obtain permanent residence in Australia.  The applicant has refuted this stating that she has directed Mr Ren to purchase vehicles and she has the final say, however the evidence before the Tribunal indicates that the applicant has been removed from this process, confirmed by the fact that she was not able to provide the name and location of the dealership that her vehicles were purchased at in 2011 and in 2016, and where the vehicles are regularly serviced. The Tribunal finds that a person involved in the management of tourism/coach business for the Chinese market would be across such facts.

125.   This finding is confirmed by the fact that the applicants evidence during the review hearing which has been referred to extensively above was vague and very generalised and did not exhibit in the view of the Tribunal the requisite knowledge and understanding of the fundamentals of the business that would lead the Tribunal to find that she in the two year period prior to application maintained direct and continuous involvement in the management of the business from day to day and in making decisions that affected the overall direction and performance of the business.

126.   The Tribunal questioned the applicant at hearing about whether Mr Ren’s JJ Travel ran a coach service.  The applicant responded that she “did not pay attention to this” which the Tribunal finds difficult to accept given that the applicant and Mr Ren’s business share the same business premises and Mr Ren is employed as the applicants Operations Manager.

127.   The Tribunal questioned the applicant about whether she had obtained depreciation schedules for the two biggest assets of her business the 2 Mercedes Benz Coaches that she had Mr Ren purchase in 2016.  The applicant was unable to confirm this and one would anticipate that the applicant would be across the tax benefits of a depreciation schedule for the biggest assets and financial outlay of the business.

128.   The Tribunal questioned the applicant at hearing about what links she had made with Tourism NSW and other Australian tourist bodies in Australia to promote her business.  Further to this that apart from the initial launch in Shanghai in 2011 what the links the applicant had made within the Chinese tourism sector. The applicant advised that she had attended a Chinese tourism forum in 2017 at the Sydney Opera House and information about Minz could be found on the Tourism NSW website.  There was no further evidence provided with regard to links that the applicant had established with the tourism sector in New South Wales and in China since the business was established in 2011.  This industry sector would be reliant on these links and there was little evidence about the businesses relationship within the Australian and Chinese tourism sector.

129.   The applicant was asked at hearing what a bus and coach operator’s liability questionnaire was and she advised that she had signed it but could not remember what it was about.  One would expect that a person running a luxury coach service for the Chinese tourist market would have an understanding of such a questionnaire which is intrinsic to the operation of such a service.

130. The Tribunal does not accept that the initial involvement in the business by Mr Ren pertained merely to its initial inception and establishment by the applicant and finds that it has been ongoing as evidenced by the co-location of the two businesses and Mr Ren’s engagement as an employee. The Tribunal holds the view that if the business was a truly autonomous one controlled by the applicant Mr Ren’s role in the business would have diminished over time, however this has not been the case. Mr Ren as noted has been engaged as a full time Operations and Sales Manager for the business since October 2013 and continues to be involved in the purchase and fitout of coaches (intrinsic to the business) first in 2011 and more recently in 2016. Mr Ren’s significant involvement in the business is further recognised by the fact that Mr Ren was using the business assets of Minz in advertising JJ Travel Service. Indeed in the Tribunal web search of July 2019, Mr Ren was still using the former assets of Minz for the advertising of his business JJ Travel despite the fact that these assets were on-sold to another tourism business in Mosman in October 2016. The Tribunal notes that this is despite the concerns of the MRT in its s.359A letter of 20 March 2015 (prior to the asset sale) that JJ Travel was using the assets of Minz on its business website and this clearly continued past the time that these concerns were first raised. The Tribunal finds that this is clear evidence of the intrinsic link between the two businesses and Mr Ren’s involvement in the management of the business from day to day and in making decisions pertaining to the overall direction and performance of the business.

131.   The applicant’s representative in the post hearing submission dated 1 November 2019 posits that the applicant was not afforded procedural fairness.  The submission noted that it was open to the Tribunal to consider all of the information and evidence before it but expressed “disappointment that very few questions asked refer to the current application.”

132.   The submission goes on to state that after reviewing the recording of the recent hearing that most of the questioning appeared to relate to the previous decision and hearing of 2015 and argued that very few questions were focused on the current application for review.

133.   The Tribunal refutes this. The Tribunal made it extremely clear at the commencement of the review that the criteria relevant to the grant of a Subclass 890 visa contained a retrospective component. This requires the Tribunal to be satisfied that the applicant has 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 for at least two years immediately before the application is made. As noted the requisite period for the Tribunal’s consideration in this respect ran from 17 September 2013 through to 17 September 2015. The Tribunal noted at the outset of the review hearing that there was a significant period of overlap between the retrospective period considered by the MRT which ran from 18 March 2012 through 18 March 2014 and the period under consideration by this Tribunal which ran from 17 September 2013 to 17 September 2015. The Tribunal also noted that the decision of the MRT related to the same business, and that the decision of the MRT was upheld at judicial review and had not been impugned in any way.  The Tribunal noted that it had regard to the evidence provided to the MRT and to that Tribunal’s findings along with the evidence that had been provided in the review before it.

134. The Tribunal has given careful consideration to the voluminous evidence before it including the evidence provided at review, the evidence provided by the applicant at the review hearing and the post hearing submissions. For the reasons provided the Tribunal cannot be satisfied that the applicant during the period 17 September 2013 to 17 September 2015 has maintained 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 and that the business therefore does not meet the requirements at r. 1.11(1)(b) to be considered a main business in respect of the applicant It follows that the applicant is unable to satisfy the requirements of cl.890.211(1) of the Regulations.

135.   The remaining applicants, the applicant’s husband and son have only sought the visas on the basis of being members of the family unit of the main applicant Ms Wang.  It follows that the secondary visa applicants are incapable of satisfying the requirements of cl.890.311 of the Regulations.

136.   The evidence before the Tribunal is such that none of the visa applicants would satisfy the requirements for any of the other subclasses of the Business Skills (Residence)(Class DF) visas as there is no evidence of any relevant investment or sponsorship as required to satisfy the requirements of those subclasses.

DECISION

137.   The Tribunal affirms the decisions under review refusing the applicants the grant of Business Skills (Residence) (Class DF) visas.

John Cipolla
Senior Member