Wang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 805
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 805
File number(s): SYG 3068 of 2019 Judgment of: JUDGE CAMERON Date of judgment: 5 September 2023 Catchwords: MIGRATION – Business skills visa – refusal – review of Administrative Appeals Tribunal (“Tribunal”) decision.
ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision was affected by jurisdictional error because it applied the wrong test or misapplied the correct test.
Legislation: Migration Act 1958 (Cth) s 474
Migration Regulations 1994 (Cth) reg 1.11, cls 890.211, 890.311 of sch 2
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Wang v Minister For Immigration & Border Protection [2016] FCCA 2149
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 93
Liu v Minister for Immigration & Border Protection [2016] FCCA 2364
Minister for Immigration & Citizenshipv SZMDS (2010) 240 CLR 611
Division: General Number of paragraphs: 21 Date of hearing: 22 August 2023 Place: Sydney Solicitor for the Applicants: Christopher Levingston & Associates Counsel for the First Respondent: Ms N. Gollan Solicitor for the First Respondent: Mills Oakley ORDERS
SYG 3068 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MIN WANG
First Applicant
LIQIANG SUN
Second Applicant
HAOTING SUN
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
5 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The first applicant is a citizen of China who arrived in Australia on 28 August 2011. On 17 September 2015 she lodged an application for a Business Skills (Residence) (Class DF) Subclass 890 visa with what is now the Department of Home Affairs (“Department”) on the basis of being a director of Minz Investment (Aust) Pty Ltd trading as Minz Coach and Tour (“Minz Coach and Tour”), a role she had held since September 2011. The second and third applicants were included in the visa application as the first applicant’s partner and child. On 11 November 2016 the applicants’ visa application was refused by a delegate of the first respondent (“Minister”). The applicants then applied to the Administrative Appeals Tribunal (“Tribunal”) on 18 November 2016 for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for a review of the Tribunal’s decision.
In this judicial review proceeding, the Court cannot rehear the applicants’ application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
At all material times, the Migration Regulations 1994 (Cth) (“Regulations”) relevantly provided:
1.11 Main business
(1)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; and
(b)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
. . .
. . .
890.21—Criteria to be satisfied at time of application
890.211
(1)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.
(2) For each business to which subclause (1) applies:
(a)an Australian Business Number has been obtained; and
(b)all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.
. . .
BACKGROUND FACTS
The first applicant had previously been refused a Business Skills (Residence) (Class DF) Business Owner (Subclass 890) visa on 18 March 2014 on the basis that she did not meet cl.890.211 of the Regulations as she had not maintained direct and continuous involvement in the management of Minz Coach and Tour in the two year period immediately before the application was made. On 6 May 2015 the Migration Review Tribunal (“MRT”) affirmed the decision to refuse that first application and an application to this Court for judicial review of the MRT’s decision was dismissed on 23 August 2016: Wang v Minister For Immigration & Border Protection [2016] FCCA 2149.
In the decision the Tribunal relevantly summarised the evidence before it as follows:
(a)the first and second applicants travelled to Australia in 2011 to explore potential business opportunities and the first applicant was introduced by a mutual friend to Mr Ren, who also operated a travel business in Sydney, JJ Travel Services (“JJ Travel”);
(b)Mr Ren was hired by the first applicant as Operations and Sales Manager of Minz Coach and Tour on 16 October 2013 for a 38-hour work week with responsibilities including: tour bookings, supervising and recording the departure and return of all tours, soliciting feedback from tour participants, rostering, oversight and remuneration of drivers, vehicle maintenance and ensuring vehicles were in working order. Mr Ren was also the designated Manager/Director on record for Minz Coach and Tour for the purpose of regulatory accreditation;
(c)that JJ Travel and Minz Coach and Tour operated out of the same business premises, but the first applicant initially rented the office and Mr Ren paid her rent to use the space which also allowed them to refer business to each other. The first lease was signed by Mr Ren under an alleged power of attorney which the first applicant advised was because she was not in Sydney at the time but that she had signed the lease renewal in 2014;
(d)the first applicant did not consider that there was any risk of conflict for Mr Ren in his role as Operations and Sales Manager of Minz Coach and Tour and running JJ Travel as a separate business, even when JJ Travel hired Minz Coach and Tour’s vehicles for use to transport tourists;
(e)the first applicant was unable to give evidence about where Minz Coach and Tour’s buses were purchased in 2011 and 2016, or where they were serviced and inspected as these tasks were handled by Mr Ren. The first applicant was able to identify the type of vehicles purchased, provide a rough estimate of the cost of the vehicles and stated that she made the final decision regarding their purchase;
(f)the second applicant participated in the inspection, purchase and registration of the coaches for Minz Coach and Tour for which they used Mr Ren’s particulars as they did not yet have an Australian address or account;
(g)the first applicant was able to give evidence regarding the insurance held by Minz Coach and Tour;
(h)the first applicant advised that Minz Coach and Tour was profitable, with a single unprofitable year in 2016 which was attributable to vehicle repairs and replacements;
(i)Minz Coach and Tour attracted customers primarily through its website, pamphlets handed out near its business premises and through its inclusion on the Tourism NSW website. The first applicant had also run a tourist event in Shanghai in 2011 and attended an event in Sydney in 2017;
(j)when presented by the Tribunal with tax invoices for Minz Coach and Tour that were addressed to Mr Ren, the first applicant advised that they were addressed in that way, not because Mr Ren was in control of the business, but because he was its “contact person”;
(k)the first applicant advised the Tribunal in her response to a s.359AA notification that despite having told the MRT four years earlier that the images would be removed, photos on JJ Travel’s website depicted vehicles that, before being sold in 2016 to a named third party, had been owned by Minz Coach and Tour. The applicants provided the Tribunal with a statutory declaration of Mr Ren dated 31 October 2019 confirming that the vehicles depicted on JJ Travel’s website had been sold by Minz Coach and Tour to a third party. Also supplied was a document from the director of the third party confirming the vehicles depicted had been purchased by them from Minz Coach and Tour and that the images were used by JJ Travel with their permission;
(l)the first applicant stated that she “did not pay any attention” to the business of JJ Travel or consider that Mr Ren faced a conflict between his duties to Minz Coach and Tour and his interest in the success of his company;
(m)the first applicant did not recall if she obtained depreciation schedules for the vehicles purchased by Minz Coach and Tour in 2011 but stated that she had obtained them for the vehicles purchased in 2016. She was unable to confirm this; and
(n)the first applicant remembered signing a bus and coach operator’s liability questionnaire for Minz Coach and Tour but could not recall what it was about.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants met the criteria for the grant of the Business Skills (Residence) (Class DF) Business Owner (Subclass 890) visas they sought. The Tribunal’s decision was based on the following findings and reasons:
(a)the relevant period during which the first applicant was required to have maintained direct and continuous involvement in the management of the business from day-to-day and to have made decisions affecting the overall direction and performance of the business to satisfy the Regulations was 17 September 2013 to 17 September 2015, of which the period 17 September 2013 to 18 March 2014 overlapped with the earlier visa application;
(b)there was little evidence of the company’s relationship with the Australian or Chinese tourism industries;
(c)in circumstances where Mr Ren was employed by Minz Coach and Tour and it and JJ Travel shared the same offices, the Tribunal found it difficult to accept that the first applicant “did not pay any attention” to the business of JJ Travel and had not considered whether there was a conflict between Mr Ren’s duty as an employee of Minz Coach and Tour and his interest in the success of his own business;
(d)referring to the first applicant’s inability to recall whether she obtained depreciation schedules for the vehicles purchased in 2011, the Tribunal observed that it would have expected her have been aware of the tax benefits of a depreciation schedule for the business’s biggest assets and financial outlays;
(e)the Tribunal said in relation to the first applicant’s inability to remember what a bus and coach operator’s liability questionnaire concerned that it would have expected a person running a luxury coach service for the Chinese tourist market to have had an understanding of such a questionnaire as it was intrinsic to the operation of such a service;
(f)the first applicant was familiar with the business operations of Minz Coach and Tour since being appointed director in 2011 but nevertheless had not had any “relevant involvement” in making critical decisions affecting the overall direction and performance of the business; and
(g)Mr Ren had made all the critical decisions concerning the overall direction and performance of Minz Coach and Tour as evidenced by his position as the designated Manager/Director for the purpose of regulatory accreditation, his role in the purchase and outfit of vehicles used by the business and his execution of the first lease of the business’s premises.
The Tribunal’s findings were summarised in its reasons as follows:
. . . 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.
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.
. . .
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.
The Tribunal concluded that it was not satisfied that in the two year period immediately before the visa application was made, the first 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. In light of that conclusion it found that Minz Coach and Travel did not satisfy the criteria in reg.1.11(1)(b) of the Regulations to be considered a main business of the first applicant who was therefore not able to satisfy the requirements of cl.890.211(1) of the Regulations. The second and third applicants were also consequently incapable of satisfying the requirements of cl.890.311 of the Regulations.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding, the applicants alleged:
1.The Second Respondent fell into Jurisdictional error in finding that the Applicant did not meet the requirements of criterion 890.211(1).
Particulars
(a) The decision of the Applicant to appoint Jian Ming Ren as the Manager/Director of Minz Investment (Aust) Pty Ltd after September 2011 and to thereinafter rely upon his English language ability, advice, expertise and experience and to delegate functions to him was not a traversal of the requirements embodied in Criterion 890.211(1) and regulation 1.11 (l)(b) of the Migration Regulations 1994 but was, in all of the circumstances of the case reasonably necessary to discharge the requirements of Criterion 890.211(1).
. . .
A second particular was abandoned.
CONSIDERATION
The applicants submitted that the first applicant’s decision to employ Mr Ren and to oversee his performance of his duties in the period 17 September 2013 to 17 September 2015 did not impinge on her ability to satisfy the requirements of cl.890.211(1) of the Regulations. They submitted that, rather, through her employment of, and delegation of tasks to, Mr Ren, the first applicant maintained a direct and continuous involvement in the management of the business and in decisions affecting its overall direction and performance.
The applicants submitted that the Tribunal erroneously required the first applicant to manage the whole of the business and did not have regard to the ways in which an applicant might satisfy the Regulations’ requirement that she maintain direct and continuous involvement in the management of a business and in the making of decisions affecting the overall direction and performance of the business. The applicants relied in that connection on Lobo v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 132 FCR 93 (“Lobo”) where the Full Court of the Federal Court of Australia said in relation to a provision of the Regulations with terms similar to those of reg.1.11(1)(b):
… The criterion requires satisfaction on the part of the Minister that the applicant for the visa as the owner of an interest in a main business “maintained direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses”. This did not import a requirement that could only be satisfied by demonstrating the exercise of responsibility within the business in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure. There is a variety of ways in which a person might maintain direct and continuous involvement in the management of a business and in making decisions affecting its overall direction and performance. (at 112 [63])
They submitted that a person involved in the “management of the business” need not necessarily manage the whole of the business and that regard must be had to the whole circumstances and requirements of the individual business: Liu v Minister for Immigration & Border Protection [2016] FCCA 2364 at [31], [32].
The applicants’ submissions raised two issues. The first was whether the Tribunal erred by applying the wrong test, as had been the case in Lobo where it had been guided by a policy document which applied a test narrower than the one prescribed by the Regulations. The second issue was whether the Tribunal had identified the correct test but misapplied it nonetheless by failing to have regard to all relevant circumstances.
Dealing with the first of those questions, the Tribunal’s decision record makes it clear that it recognised and expressly applied the criteria prescribed by cl.890.211(1) of the Regulations as informed by reg.1.11(l)(b) of the Regulations. The Tribunal quoted those provisions in its decision record and went on to say:
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.
The Tribunal made no reference to any gloss on the relevant regulations or the criteria they prescribed and so did not repeat the error identified in Lobo.
As to the second question, it should first be said that nothing the applicants raised suggested that the Tribunal did not have regard to all the evidence before it. The summary set out earlier in these reasons would suggest that the Tribunal understood the circumstances by which the applicants came to be involved with Minz Coach and Tour, their interactions with Mr Ren, Mr Ren’s involvement in the business of Minz Coach and Tour, his operation of his own business in association with Minz Coach and Tour, the fact that the two businesses operated from the same address and the first applicant’s lack of familiarity with important aspects of the business and the administration of its operations. It is not apparent that the Tribunal failed to have regard to a fact which might have been material to the outcome of its review.
That being so, the applicants’ complaint is properly seen to be as one concerned with the weight the Tribunal gave to particular evidence and, necessarily, to its findings on the merits of the visa application. However, absent any requirement in the Regulations concerning the weight to be given to particular evidence, and there was none, the applicants’ argument does not raise an issue amenable to judicial review. Similarly the implicit argument that the Tribunal reached incorrect factual conclusions takes the matter nowhere absent any identified error of law, such as illogicality or unreasonableness of the sort considered in Minister for Immigration & Citizenshipv SZMDS (2010) 240 CLR 611.
As stated earlier in these reasons, the Court cannot rehear the applicants’ application for visas but that is, in substance, what they seek. The application has therefore not identified any jurisdictional error on the part of the Tribunal.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 5 September 2023
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