Wu (Migration)

[2019] AATA 5063

Wu (Migration) [2019] AATA 5063 (28 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jun Wu

CASE NUMBER:  1803314

DIBP REFERENCE(S):  BCC2016/3283402 BCC2016/3452271 BCC2016/3452329 BCC2016/3452361 BCC2016/3452394

MEMBER:Stavros Georgiadis

DATE:28 October 2019

PLACE OF DECISION:  Adelaide

DECISION:  The Tribunal affirms the decision to refuse the            applicant a Business Skills (Residence) (Class              DF) Subclass 890 visa.

Statement made on 28 October 2019 at 11:57am

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) – Subclass 890 (Business Owner) – ownership of business – offshore at time of hearing – no direct contact with business – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 892.211, 892.221, r 1.11(1)(b)

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 19 January 2018 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 29 September 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant met r.1.11(1)(b) at the time of decision for the purposes of cl.892.211 (set out below).

3. The applicant was invited to appear before the Tribunal on 28 October 2019 to give evidence and present arguments. The applicant did not respond to the invitation to attend the hearing and did not attend at the scheduled time and place for hearing.  The Tribunal had arranged for the hearing to be conducted with the assistance of an interpreter in the Mandarin and English languages.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant has had an ownership interest in one or more actively operating main businesses in Australia for at least two years before the application is made; and further, whether the applicant continues to have, an ownership interest in one or more actively operating main businesses in Australia at the time of application for the purposes of cl.892.221.

   892.221

6. Clause 892.211 of Schedule 2 to the Regulations requires that the applicant has had, and continues to have (emphasis added), an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

7. Regulation 1.11(1)(b) requires that the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business.

8. Clause 892.221 of Schedule 2 to the Regulations requires, amongst other factors, that the applicant continues to satisfy the criteria in cl.892.211.

9. The Tribunal notes that cl.892.211(1) comprises of two key requirements. Firstly, it requires that an applicant “has had … an ownership interest in one or more actively operating main businesses in Australia for at least two years before the application is made”; and secondly, that an applicant “… continues to have, an ownership interest in one or more actively operating main businesses in Australia” at the time of application. Clause 892.221 then qualifies cl.892.211 by requiring an applicant to continue to satisfy the criteria in cl.892.211 at the time of decision.

10. In this case the applicant has provided a description of his duties in his business, Authentic Japanese Noodles (GOUGER Street) Pty Ltd (ABN: 30169283069). The business operates in the Adelaide Central Business District, South Australia and was established on or about 29 April 2014 according to the ABN register and ASIC database ACN: 169283069.

11. The Tribunal accepts from documents provided by the applicant together with the application form that his main duties in the business include: “Managing and participating in day to day operation of the business, including:” … “Working at the shop from 11:45am - 3pm and 5:30pm to 9:30pm, on and (sic) average roster of 5 days a week.” … This is also set out in the delegate’s decision (page 5), a copy of which was attached to the application for review.

12. The Department’s Movement Details show that the applicant has frequently been absent from Australia for lengthy periods including, in excess of 15 months from 30 September 2016 to 5 February 2018, being from the following day after the application was lodged, while waiting for this matter to come to hearing. More specifically, the Movement Details show that the applicant’s most recent departure from Australia was on 7 January 2019 and that, as at the date of scheduled hearing, he still remains offshore - a period in excess of 9 continuous months. 

13. Based on the information discussed above and in particular, considering the applicant's aforementioned duties in the business requiring his day to day attendance “at the shop”, the Tribunal is not satisfied that at the time of its decision, the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day in making decisions affecting the overall direction and performance of the business.

14. Accordingly, the Tribunal is not satisfied that the applicant meets r.1.11(1)(b) for the purposes of cl.892.211 for the grant of the visa. As the applicant does not continue to meet cl.892.211, he cannot meet the requirements of cl.892.221.

15. Given the findings above, the Tribunal is not satisfied that cl.892.221 is met. As this essential requirement for the visa is not met, the decision under review must be affirmed.

    DECISION

16. The Tribunal affirms the decision to refuse the applicant a Business Skills (Residence) (Class DF) Subclass 890 visa.

    Stavros Georgiadis
    Member