Wong (Migration) - [2020] AATA 475

Wong (Migration) [2020] AATA 475 (23 January 2020)

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Vivien Siew Ling WONG
Amberly Mei Yi SHIM

CASE NUMBER:  1720418
HOME AFFAIRS REFERENCE:  BCC2017/1252514
TRIBUNAL:Member P Ranson
DATE:23 January 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Residence) (Class DF) visas.
Statement made on 23 January 2020 at 9:55am

CATCHWORDS
MIGRATION – Business Skills (Residence)(Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – time of application criteria – source and supply business not nominated in visa application – not actively operating business in Australia – connection to Australia not sufficient – recruitment services for overseas markets – sourcing products from US and delivering to customers outside Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(10)
Migration Amendment Regulations 2001 (No. 10) (2002, No.348)
Migration Regulations 1994 (Cth), rr 1.03, 1.11, Schedule 2, cls 892.212, 892.213, 892.221

CASES
Lee v Minister for Immigration and Citizenship [2009] FCA 977
Shahpari v Minister for Border Protection [2016] FCCA 513
Yang v Minister for Immigration and Border Protection [2014] FCCA 1576
Zhu & Ors v Minister for Immigration & Anor [2016] FCCA 1874

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 Immigration on 1 September 2017 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 22 January 2016. The application period is the two years immediately before the application is made, i.e. 22 January 2014 to 21 January 2016 (the Application Period).
At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor). The applicants in this case are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.
Two of the original secondary visa applicants, viz. Benjamin Khin Chiang SHIM (Mr Shim) and Nathan Jin Feng LAI were not included in the application to the Tribunal for a review of the department’s decision of 1 September 2017.
The delegate in this case refused to grant the visas on the basis that the first named visa applicant (‘the applicant’) did not satisfy the requirements of cl.892.211 of Schedule 2 to the Regulations as the nominated business was not a qualifying business in Australia because the bulk of its activities are offshore notwithstanding the business is managed from Australia.
The applicant appeared before the Tribunal on 4 October 2019 to give evidence and present arguments. The…

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 475
Decision Date: 23 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision concerning a Business Skills (Residence) (Class DF) visa, specifically Subclass 892 (State/Territory Sponsored Business Owner). The core dispute revolved around whether the applicant met the criteria for this visa subclass, particularly in relation to the nominated business.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion 892.211, which pertains to the time of application criteria for the nominated business. This involved determining what constituted the applicant's "main business" and whether it was actively operating in Australia in a manner that met the visa requirements, considering the business's offshore sales and the applicant's stated business activities.

The Tribunal reasoned that a business is an enterprise or undertaking, not merely a legal entity, and that the applicant's nominated business, Avakas Well Services Pty Ltd, primarily engaged in recruitment services for overseas markets. While Avakas was owned by the applicant and her spouse and operated from Australia, the majority of its sales were to offshore customers. The Tribunal noted that a separate business activity, distributing specialised equipment for the oil and gas industry, was not mentioned in the visa application form (Form 1217) and was therefore not considered part of the nominated business for the purpose of the application. Furthermore, the Tribunal found that a subsequently acquired business, PostNet, operated by a different entity and not for the entire application period, could not be considered.

Consequently, the Tribunal concluded that the applicant had not satisfied the relevant criterion and 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

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Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The main issue in this case is whether the applicant can satisfy the criterion 892.211 with the nominated business conducted by Avakas Well Services Pty Ltd ACN 159 443 893 (Avakas). Avakas is owned by the applicant and her spouse and operated from Australia however the bulk of its sales are to customers offshore. The Form 1217 which accompanied the application recorded the major business activity as: ‘Recruitment services to supply manpowers [sic manpower] to overseas market [sic markets] especially to Asia and the Middle East’. The explanatory memorandum to the Migration Amendment Regulations 2001 (No. 10) (2002, No.348) states that ‘new clause 892.221 requires that the Applicant continues to satisfy certain time of application criteria. This is to ensure that nothing material has changed in the Applicant’s circumstances. Where there has been a material change in circumstances, such as a change in businesses (emphasis added), cl.892.221 cannot therefore be satisfied. The significance of this is discussed later in this decision. It is important to note at this point that subsequent case law has established that a business is not a legal entity but rather an enterprise or undertaking. It is therefore important for the Tribunal to identify the business to which the definition of main business must be applied. It is also important to note that one business can be owned by multiple entities and conversely, multiple businesses can be owned by one entity. The applicant’s submission dated 14 January 2016 (the 14 January 2016 submission) mentions: ‘The company is also an authorised distributor for a USA company distributing specialised equipment for the oil and gas industry in the Asia Pacific Region’. The Form 1217 makes no mention of this as a business activity and in describing her duties in that submission the Applicant only lists activities in connection with the recruitment business. In an undated company profile reference is made to the appointment of Avakas as a distributor for B&T Oilfield Products, which are said in the profile to specialise in ‘Slickline Tools, O’rings, Gasket, Junk Catcher and Spare Parts’. Under a heading ‘Our Methodology’ the company profile goes on to describe a four step process, which appears to only deal with the recruitment business and makes no mention of B&T Oilfield Products. The list of clients on that document does include two Asian based companies to whom tool sales are made. The remaining seven clients are all noted as receiving manpower supply or consulting services. The 14 January 2016 submission also makes reference to the acquisition on 8 September 2014 of another business; PostNet. However the PostNet franchise agreement provided by the applicant lists the franchisee as Thriven Business Services Pty Ltd ACN 601 643 145 (Thriven) which was incorporated on 4 September 2014. As Thriven is a different entity in a different business to Avakas, not included in the form 1217 and did not operate for the entirety of the Application Period it cannot be considered for the purpose of this application.

Ratio Decidendi

Legal Principle Established

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