Wei (Migration) - [2023] AATA 908

Wei (Migration) [2023] AATA 908 (22 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Yong Wei
Mrs Yan Gao
REPRESENTATIVE:  Mr Zhuang John (MARN: 9359571)
CASE NUMBER:  1927833
HOME AFFAIRS REFERENCE(S):          BCC2018/3763462

MEMBER:Wan Shum
DATE:22 February 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Provisional) visas.

Statement made on 22 February 2023 at 11:45am

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – history of involvement in business activities that are of a nature that is not generally acceptable in Australia – false/removed/falsely applied trade mark – fake luxury goods – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 188.211
Trade Marks Act 1995 (Cth), s 148
CASES
Wong (Migration) [2020] AATA 475

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 September 2019 to refuse to grant Business Skills (Provisional) Subclass 188 visa to the applicants under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 14 June 2018. The delegate refused to grant the visa finding that the second named applicant, as the spouse of the first named applicant, did have a history of involvement in business or investment activities of a nature that is not generally acceptable in Australia and that the applicant did not satisfy cl 188.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicants sought review of that decision and were represented in relation to the review.
The applicants appeared before the Tribunal on 15 September 2022 to give evidence and present arguments by video conference using Microsoft Teams. The representative was present throughout as was Ms Zhang Yi Kai (who is the applicants’ second representative). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the first named applicant and his spouse have a history of involvement in business activities that are of a nature that is not generally acceptable in Australia: cl 188.211.
According to the Australian Federal Police (AFP) National Police Certificate dated 17 July 2018 of the first named applicant, he was charged and released on entering into good behaviour bond for “driving on road etc while licence suspended” on 9 December 2010 and then convicted of three charges of ‘expose goods with false/removed/falsely applied trade mark’; four charges of ‘possess goods with false/removed/falsely applied trade mark’ and ‘goods in possession for trade/manf. With false/removed/falsely applied Tm’ on 12 April 2011. The court results at Downing Centre Local Court recorded on 12 April 2011 were as follows: “Convicted. Released…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

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

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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 908
Decision Date: 22 February 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. and Mrs. Wei concerning their application for a Business Skills (Provisional) visa, subclass 188. The central dispute revolved around whether the applicants had a history of involvement in business activities that are not generally acceptable in Australia, as stipulated by clause 188.211 of the relevant regulations.

The Tribunal was required to determine if the convictions recorded against the applicants for offences relating to trade marks constituted a history of involvement in business activities of a nature not generally acceptable in Australia. Specifically, the Tribunal had to assess the significance of convictions for exposing and possessing goods with false, removed, or falsely applied trade marks, as detailed in Australian Federal Police National Police Certificates.

The Tribunal reasoned that the convictions of both Mr. and Mrs. Wei for offences involving counterfeit goods indicated a pattern of behaviour that falls within the scope of "business activities that are not generally acceptable in Australia." The repeated convictions for such offences, including those involving the sale and possession of fake luxury goods, led the Tribunal to conclude that clause 188.211 was not satisfied. Consequently, the Tribunal affirmed the decision to refuse the visa applications.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the first named applicant and his spouse have a history of involvement in business activities that are of a nature that is not generally acceptable in Australia: cl 188.211. According to the Australian Federal Police (AFP) National Police Certificate dated 17 July 2018 of the first named applicant, he was charged and released on entering into good behaviour bond for “driving on road etc while licence suspended” on 9 December 2010 and then convicted of three charges of ‘expose goods with false/removed/falsely applied trade mark’; four charges of ‘possess goods with false/removed/falsely applied trade mark’ and ‘goods in possession for trade/manf. With false/removed/falsely applied Tm’ on 12 April 2011. The court results at Downing Centre Local Court recorded on 12 April 2011 were as follows: “Convicted. Released on entering recognizance $100 to be of good behaviour for 12 months.” and for each of ‘possess’ and ‘expose’ charges the outcome was “on each charge convicted. Fined $25.” The same court results ‘expose goods with false/removed/falsely applied trade mark’ are recorded on 6 July 2011 at Downing Centre District Court and for the other offences, the first named applicant was charged on all convictions but the fines for four charges of goods in possession was increased to $100 and for three charges of ‘expose goods for sale’ was increased to $75. The applicants only provided to the Tribunal page 1 of 2 of the AFP National Police Certificate dated 17 July 2018 in respect of the second named applicant. This reflects that on 9 September 2011, she was charged with the offences of ‘expose goods with false/removed/falsely applied trade mark’ and ‘possess goods with false/removed/falsely applied trade mark’, for which the Court Result at Downing Centre Local Court is recorded as “Fined $1,500” against each. Then on 24 October 2011, at the Downing Centre District Court, the result recorded against ‘expose goods with false/removed/falsely applied trade mark (3 charges)’ is: “On all charges convicted. Fined $4,500.” There thus appears to have been a third charge before the Local Court which is not listed on page 1 but was related to the expose/possess goods with false trade marks. It is then recorded that on 16 May 2014 she was again before the Downing Centre Local Court for the two offences of ‘expose goods with false/removed/falsely applied trade mark’ and ‘possess goods with false/removed/falsely applied trade mark’, where the court results against each charge was: “To perform 200 hours of community service work”. Following consideration of the offences listed on the AFP National Police Certificates of each applicant, the delegate was of the view that the offences recorded against the second named applicant reflected that she had a history of involvement in business or investment activities of a nature that is not generally acceptable in Australia.

Decision

Reasons for decision

As there were two occasions on which the second named applicant was convicted and one occasion on which the first named applicant was convicted for the same type of offence, the Tribunal is of the view that the applicant and his spouse have a history of involvement in business activities that are not generally acceptable in Australia. Given this, the Tribunal finds that cl 188.211 is not satisfied and affirms the decision under review.DECISION The Tribunal affirms the decision not to grant the visas.Wan ShumMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.