Weerathunga (Migration) - [2020] AATA 5629

Weerathunga (Migration) [2020] AATA 5629 (23 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yehan Sanjaya Weerathunga
CASE NUMBER:  1732737
DIBP REFERENCE(S):  BCC2017/1790026
MEMBER:Robyn Anderson
DATE:23 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant’s Business Skills (Provisional) Subclass 188 visa.

Statement made on 23 November 2020 at 11.39am.

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 December 2017 to refuse to grant the visa applicant a Business Skills (Provisional) Subclass 188 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant, Mr Weerathunga, applied for the visa on 19 May 2017, following an invitation to apply on 29 March 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.188.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations). This required the applicant to hold business and personal assets with a net value of at least AUD800,000 at the time of application that are available to apply to the establishment or conduct of a business in Australia. The Tribunal notes that relevant evidence provided by the applicant was not received by the delegate prior to making the decision.
The Tribunal received a review application from the applicant on 22 December 2017. The matter was constituted to a Tribunal Member on 16 June 2020. The Tribunal wrote to the applicant on 29 June 2020 requesting further financial information. On 13 July 2020, the Tribunal received a submission from the applicant’s agent with the following accompanying documents:
·Deed of Gift in respect of two properties in Sri Lanka;
·Valuation reports in respect of two Sri Lankan properties in proximity of the date of invitation;
·Valuation report in respect of the Beveridge property in proximity of the date of invitation;
·Power of Attorney dated 25 September 2009 by which the applicant’s father was appointed as his attorney (signed and witnessed in Melbourne, Australia);
·Final financial statements at 5 August 2016 of W.A. Premanath & Son No.201/D (the Business); and
·An explanatory letter from the Sri Lankan accountant.
The Tribunal wrote to the applicant on 20 July 2020, requesting further information. On 30 July 2020, the Tribunal received a submission from the applicant’s agent with the following accompanying documents:
·Valuation reports in respect of two Sri Lankan properties dated 21 July 2020;
·Valuation report in respect of the Beveridge property dated 23 July 2020;
·Title in respect of the Beveridge property;
·Subaru invoice; and
·Bank statements.
On 4 August 2020, the Tribunal wrote to the applicant to invite him to attend a hearing on 28 August 2020. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had…

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

Case: [2020] AATA 5629
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Business Skills (Provisional) Subclass 188 visa made by Mr. Weerathunga. The primary decision maker had refused the visa, and the Tribunal was tasked with reviewing this decision. The core dispute revolved around whether Mr. Weerathunga met the specific criteria for the visa, particularly concerning his business and personal assets.

The Tribunal was required to determine two key issues. Firstly, whether Mr. Weerathunga possessed business and personal assets with a net value of at least AUD800,000, available for establishing or conducting a business in Australia, as required by clause 188.226 of Schedule 2 to the Regulations. Secondly, the Tribunal had to assess whether Mr. Weerathunga met the "main business" criteria under clause 188.225 of Schedule 2, which necessitates an ownership interest in an established main business with an annual turnover of at least AUD500,000 for two of the four fiscal years preceding the invitation date. This involved examining the definition of "main business" as set out in regulation 1.11 of the Regulations, including the requirement for direct and continuous involvement in the management of the business.

In relation to the asset valuation for clause 188.226, the Tribunal was not satisfied with the evidence provided regarding the valuations of Mr. Weerathunga's property assets in Sri Lanka at the time of his visa application. Specifically, the Tribunal noted a lack of explanation for the valuations after the revocation of life interests, which would typically be expected to result in lower values. Regarding the "main business" criteria under clause 188.225, the Tribunal considered the Business, a joint venture with his parents, and the relevant fiscal years ending 31 March 2014 and 31 March 2015. However, the provided text focuses on the asset valuation issue as the primary reason for affirming the delegate's decision.

Consequently, the Tribunal affirmed the decision not to grant Mr. Weerathunga's Business Skills (Provisional) Subclass 188 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal is cognisant that the issue upon which the delegate refused the applicant’s application was whether Mr Weerathunga held business and personal assets with a net value of at least AUD800,000 at the time of application that are available to apply to the establishment or conduct of a business in Australia (cl.188.226 of Schedule 2 to the Regulations). The Tribunal is empowered to determine an application by reference to a specified criterion which has not been addressed by the primary decision maker. If the Tribunal is not satisfied that a criterion is met, and it is a necessary prerequisite for the grant of a visa, then the Tribunal will sufficiently exercise its jurisdiction by affirming the delegate’s decision on that basis: Hui v Minister for Immigration and Citizenship [2011] FMCA 486; Jin v Minister for Immigration and Citizenship [2009] FMCA 540. The Tribunal’s concerns in respect of cl.188.225 of Schedule 2 to the Regulations centred on the “main business” criteria. Clause 188.225 requires Mr Weerathunga to have had an ownership interest in one or more established main businesses with an annual turnover of at least AUD500,000 for two of the four fiscal years immediately before the time of invitation, which in this case is 29 March 2017. The Business (nominated as the main business) was a joint business between the applicant and his parents, akin to a partnership. A translated copy of the joint business agreement, dated 24 November 2011, was before the Tribunal. It was evident that it was a joint business involving three parties, being the applicant, the applicant’s father, Mr Premanath, and the applicant’s mother, Ms Pathberiya. The nature of the Business is listed as being “storage, distribution and sale of all types of products of fuel and lubricants supplied wholesale by the Ceylon Petroleum Corporation”. For the purposes of meeting the criteria under cl.188.225 of Schedule 2 to the Regulations, Mr Weerathunga selected the two fiscal years ending 31 March 2014 and 31 March 2015 (the relevant period). Therefore, the Tribunal must firstly be satisfied that the Business meets the definition of main business, as set out in r.1.11 of the Regulations (defined in r.1.03 of the Regulations) throughout the relevant period. As noted above, the four criteria are not mutually exclusive and must all be met before a nominated business can be considered as the “main business”. The second criteria under r.1.11(1)(b) requires that the applicant must maintain or have 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. Mr Weerathunga gave oral evidence that the association with Ceylon Petroleum dated back to his grandparents and was eventually inherited by his father. There were many problems in relation to theft and robberies during wartime. Consequently, Mr Weerathunga’s father relocated the family to the U.S.A. and placed a friend in a management role at the Business in around 1999. Mr Weerathunga gave oral evidence that he completed Year 5 in Sri Lanka and the remainder of his education was completed overseas. Mr Weerathunga’s father returned to operate the Business in 2002, while Mr Weerathunga and his mother returned a year or so later. Mr Weerathunga gave oral evidence that his preference was not to remain in Sri Lanka and he subsequently returned to study in the U.S.A., graduating from high school in 2007. In a compromise with his parents, Mr Weerathunga commenced a Diploma in Tourism and Hospitality Management in Singapore, completing it in late 2008 before relocating to Australia in 2009 where he commenced a Bachelor of Business in Tourism and Hospitality Management at La Trobe University. In response to a question from the Tribunal, Mr Weerathunga stated that while at University he worked in various casual positions, such as a chef at a bakery, McDonald’s, a cleaner and the like.

Decision

Reasons for decision

In such circumstances, the Tribunal was unable to be satisfied of the valuations of the property assets held by Mr Weerathunga in Sri Lanka at the time of invitation for the purposes of assessing cl.188.226 of Schedule 2 to the Regulations. This was on account of the lack of impact on the values of the properties after revocation of the life interests. In the absence of an explanation otherwise, it would be expected that the valuations prior to revocation of the life interests would be lower. DECISION The Tribunal affirms the decision not to grant the applicant’s Business Skills (Provisional) Subclass 188 visa.Robyn AndersonMember

Ratio Decidendi

Legal Principle Established

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