Warnakula Weerasuriya (Migration) - [2019] AATA 2500

Warnakula Weerasuriya (Migration) [2019] AATA 2500 (14 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sarath Jayatilake Warnakula Weerasuriya
Mrs Fatima Nilmini Jayatilake
Mr Samadi Shenal Jayatilake Warnakula Weerasuriya
CASE NUMBER:  1614715
DIBP REFERENCE(S):  BCC2015/3204998 BCC2015/3205102 BCC2015/3205103 BCC2016/2440643
MEMBER:Alison Mercer
DATE:14 February 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for Class DF subclass 892 (Business Skills) (Residence) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 892 visa:
·cl.892.211(1) of Schedule 2 to the Regulations.

Statement made on 14 February 2019 at 6:52pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) – Subclass 892 (State/Territory Sponsored Business Owner) – ownership interest in 1 or more actively operating main business in Australia for at least 2 years before application – use of 3 entities – registered business operated for less than 2 years – main business operated consecutively through 3 entities for required timeframe – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(10)
Migration Regulations 1994 (Cth), Schedule 2 cl 892.211, rr 1.03, 1.11
CASES
Nassif v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 48

Yang v Minister of Immigration [2014] FCCA 1576

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 September 2016 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) subclass 892 visas under s.65 of the Migration Act 1958 (the Act).
2.      The visa applicants applied for the visa on 2 November 2015. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.892.211, which requires that the applicant had had, and continued to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the visa application was made. The delegate found that the applicant had nominated his main business as Chris Cleaning and Site Services WA Pty Ltd, but that this business only started actively operating on or about 1 July 2014.
3.      The applicant also refused to grant subclass 892 visas to the second and third named via applicants (the applicant’s wife and son) on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 892 visa, and there was no evidence that they met the primary visa criteria in their own right.
4.      The Tribunal received a review application from the applicants on 13 September 2016. It was accompanied by a copy of the delegate’s decision and an authority by which the appointed a registered migration agent, Mr Lester Ong, as their representative and authorised recipient for correspondence.
5.      On 11 May 2017, the Tribunal received a submission with supporting documents from the applicants’ agent.
6.      On 16 October 2018,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Warnakula Weerasuriya (Migration) [2019] AATA 2500
Case: [2019] AATA 2500
Decision Date: 14 February 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the applications of Warnakula Weerasuriya and two other individuals for Business Skills (Residence) (Class DF) visas, specifically Subclass 892 (State/Territory Sponsored Business Owner). The dispute centred on whether the primary applicant met the requirement of having an ownership interest in one or more actively operating main businesses in Australia for at least two years prior to the application. The applicants relied on the operations of three distinct entities to satisfy this criterion.

The Tribunal was required to determine whether the primary applicant's business activities, conducted through three separate entities, cumulatively satisfied the requirement of operating a main business for at least two years. Specifically, the Tribunal had to assess if the registered business, which had operated for less than two years, could be considered part of a larger, consecutively operated main business that met the full two-year timeframe.

The Tribunal reasoned that the primary applicant had operated the main business consecutively through the three entities for the required timeframe, despite the registered business itself operating for less than two years. Consequently, the Tribunal found that the primary applicant met the criterion outlined in cl.892.211(1) of Schedule 2 to the Regulations. The applications were remitted to the Department for reconsideration, with the direction that the primary applicant met the relevant visa requirement. The applications of the second and third named applicants, who applied as members of the primary applicant's family unit, would be determined based on this outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the second and third named applicants applied on the basis of being members of the applicant’s family unit, it follows that their applications will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.DECISION The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets:·cl.892.211(1) of Schedule 2 to the Regulations.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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