Weng (Migration) - [2022] AATA 1946

Weng (Migration) [2022] AATA 1946 (9 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Zusheng Weng
Ms Chunying Wang
Ms Caiping Weng
Ms Lisa Weng
Mr Leonel Weng
REPRESENTATIVE:  Ms Karen Wong (MARN: 0213269)
CASE NUMBER:  1901355
HOME AFFAIRS REFERENCE(S):          BCC2018/4516466

MEMBER:Danielle Galvin
DATE:9 May 2022
PLACE OF DECISION: Melbourne

DECISION: The decision under review is affirmed.

Statement made on 09 May 2022 at 2:27pm

CATCHWORDS
MIGRATION – Business Innovation and Investment (Class EB) visa – Subclass 188 (Business Skills (Provisional)) – whether ‘actively operating’ in Australia – Policy guidelines – Retail Trade in liquor products – no liquor licence – sales figures – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 188.232, 188.311
CASES
Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513

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 2 January 2019 to refuse to grant the visa applicant a Business Skills (Provisional) Subclass 188 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant, Mr Zusheng Weng, applied for the visa on 16 October 2018. The remaining applicants are members of the applicant’s family unit. The applicant had applied for a Business Skills (Provisional)(class EB) Business Innovation and Investment (Provisional)(Extension)(subclass 188) visa under the Business Innovation Extension stream. The applicant must therefore meet the legal requirements specified under the Migration Act and Regulations.
The delegate refused to grant the visa on the basis that the applicant did not meet the legal requirement in clause 188.232 in Schedule 2 of the Regulations on the date of the delegate’s decision.
At the time of the application clause 188.232 stated that:
(1)For at least the 2 years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia.
(2)The applicant continues to have the ownership interest mentioned in subclause (1).
The delegate referred to Policy guidelines to determine how a business is “actively operating in Australia’. For a business to be considered to be in Australia it must supply goods and/or services connected with Australia, such as:
·Supply goods and/or services wholly within Australia-for example, sale of goods to a customer where those goods are delivered, or made available, in Australia
·Supply goods and/or services from Australia-for example a sale that involves goods being exported from Australia
·Supply goods and/or services to Australia-for example, a sale of goods that involves the goods being brought to Australia and importing the goods into Australia or installing or assembling the goods in Australia
·Supply rights or services within Australia through a business based in Australia-for example, consultancy services that are carried out in Australia or entertainment events that are performed in Australia.
The delegate further stated that when assessing direct and continuous management the following may…

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: [2022] AATA 1946
Decision Date: 9 May 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Weng concerning his application for a Business Innovation and Investment (Class EB) visa, Subclass 188 (Business Skills (Provisional)). The core dispute revolved around whether Mr Weng had met the requirement of having an ownership interest in a main business that was actively operating in Australia for at least two years immediately before his application.

The Tribunal was tasked with determining whether the applicant satisfied clause 188.232(1) of the Migration Regulations, which mandates that an applicant must have had an ownership interest in one or more main businesses that were actively operating in Australia for the two years preceding their application. The term "actively operating" was not defined in the legislation, requiring the Tribunal to consider whether the business exhibited activity of a repetitive, continuous, and permanent character, actively seeking to generate business, actually generating trade and custom, and deriving financial gain during the relevant period, as established in *Shahpari v Minister for Immigration and Border Protection* [2016] FCCA 513. The relevant two-year period for Mr Weng's application, made on 16 October 2018, was from 16 October 2016 to 15 October 2018.

The Tribunal found that the applicant's claimed main business, Martin & Mari Pty Ltd trading as Crown on the Hill Cellars, was not purchased by the company until some time in 2018, with the lease transfer dated 30 January 2018. While the applicant claimed to have managed and controlled the company since April 2016, there was no evidence presented to the Tribunal regarding any business activities undertaken by the company prior to its purchase of the business. Furthermore, the applicant had not provided evidence of a liquor licence authorising the business to operate legally, and as of December 2018, no such licence was in place in Victoria. Consequently, the Tribunal concluded that the applicant had not demonstrated that the business was actively operating in Australia for the required two-year period.

As Mr Weng did not meet the criteria under clause 188.232, his migrating family members could not demonstrate that they were members of the family unit of a Subclass 188 visa holder, and therefore did not meet the criteria under clause 188.311. The Tribunal affirmed the decision under review.

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 issue in the present case is whether the applicant meets the required criteria to be met under Clause 188.232.Clause 188.232(1)-For at least the 2 years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia. In order for the applicant to meet cl.188.232(1) the Tribunal must be satisfied that the relevant business or businesses were actively operating in the period commencing two years immediately prior to the date of the application. The term “actively operating” is not defined in the Act or Regulations. In considering whether the requirement is met, the Tribunal may consider whether the business exhibited activity of a “repetitive, continuous and permanent character” at the relevant times, in which the business actively sought to generate business, in fact generated trade and custom and derived some financial gain for its activities in the relevant period: Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513 at 71. Given that the subclass 188 Provisional Business Innovation & Investment visa application was made on 16 October 2018, the relevant 2 year period for ownership in a main business by the applicant is from 16 October 2016 to 15 October 2018. The application to the Department identified the main business as Martin & Mari Pty Ltd (the Company) t/a Crown on the Hill Cellars (the Business). The industry type is stated to be Retail Trade in liquor products. The applicant is described as the Manager since 13 February 2015 and had a 100% share of the business in 2018 and 2017. The provided ASIC search for the Company identifies that the applicant is the sole director and shareholder. No ABN search for the Business was provided although the Tribunal notes that an ABN was granted to the Company. The Tribunal notes that this Business was not purchased by the Company until some time in 2018. The contract of the purchase of the Business is undated however, the lease transfer for the site from which the Business operates is dated 30 January 2018. In the applicant’s statement of 11 December 2018 he stated that he has managed and controlled his Company since April 2016. However, the Company is the claimed owner of the Business and the Tribunal has no information as to what business if any the Company undertook prior to the purchase of the Business. There is no evidence before the Tribunal that the Company had been involved in the retail of liquor prior to the purchase of the Business and the letters of support refer to involvement with the applicant in business from 2018. Further, the history provided indicates that the applicant had tried but failed to secure a business prior to the purchase of the Business. The applicant has not provided a copy of a liquor licence entitling the Business to operate legally. The most recent email from the applicant’s solicitor indicates that as at 6 December 2018 there was no licence in place which would entitle the applicant to legally sell alcohol in the State of Victoria.

Decision

Reasons for decision

Given that the applicant does not meet the criteria under clause 188.232 the remaining migrating family members have not demonstrated that they are members of the family unit of the holder of a Subclass 188 visa and therefore that they meet the criteria under clause 188.311.DECISION The decision under review is affirmed.Danielle GalvinMember

Ratio Decidendi

Legal Principle Established

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