Yang (Migration)

[2023] AATA 4255

Yang (Migration) [2023] AATA 4255 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Qian Yang

CASE NUMBER:  2108843

HOME AFFAIRS REFERENCE(S): BCC2017/1332207 BCC2018/2364634

MEMBER:Robyn Anderson

DATE:11 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Business Skills (Residence) (Class DF) visa.

Statement made on 11 December 2023 at 9.30am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – ownership interest in actively operating main business – business closed during COVID lockdowns, no current business operations, company deregistered and ABN cancelled – no unique or exceptional circumstances supporting referral for ministerial consideration – possible for applicant to request directly – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 134(10), 359AA

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 892.211(1), 892.221(a)

CASES

Shahpari v Minister for Immigration [2016] FCCA 513
Yang v MIBP [2014] FCCA 1576

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 Home Affairs on 8 July 2021 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 April 2017. At the time of application, Class DF contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Sponsored Business Owner) and Subclass 893 (State/Territory Sponsored Investor). The applicant in this case is seeking to satisfy the criteria for the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. On 8 July 2021, the delegate refused to grant the visa in this case on the basis that the applicant did not satisfy the requirements of cl 892.221 of Schedule 2 to the Regulations. In particular, the delegate was not satisfied that the applicant continued, at the time of decision, to have an ownership interest in one or more actively operating main businesses in Australia. This meant that the delegate was not satisfied that the applicant could meet the first limb required to be met under cl 892.221(a) of Schedule 2 to the Regulations (in relation to cl 892.211).

4. The applicant lodged a request for a review of the Department’s decision with the Tribunal on 8 July 2021. On 25 August 2023, the applicant was invited to attend a hearing via video conference. On 30 August 2023, the applicant requested an in‑person hearing. As the matter was originally constituted to a member in a different State to the applicant, the matter was reconstituted on 13 September 2023 to a Tribunal member in the same State as the applicant. On 18 October 2023, the applicant was invited to attend an in‑person hearing.

5. The applicant appeared before the Tribunal in person on 17 November 2023 to give evidence and present arguments. The applicant gave sworn oral evidence to the Tribunal. She was not represented. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the primary criteria in cl 892.21 of the Regulations. The requirements under cl 892.21 are not mutually exclusive and must all be met before the applicant can satisfy the necessary criteria. This means that if any one of the requirements under 892.21 are not met, the visa criteria cannot be met and it is unnecessary for the Tribunal to consider any other issues.

8. While most of the primary criteria under cl 892.21 relate to the time of application, cl 892.221 relates to the time of decision. Clause 892.221(a) of Schedule 2 to the Regulations requires that the applicant ‘continues to satisfy the criteria in clauses 892.211 and 892.214’. Clause 892.221(b) of Schedule 2 to the Regulations requires that the applicant continues to meet the requirements under cl 892.212(b), if relied upon as a time of application criterion.

9. The applicant gave oral evidence that when she first visited Australia she enjoyed the sense of freedom, which led to her applying for a State/Territory Sponsored Business Owner (Provisional) (Subclass 163) visa. The Subclass 163 visa was subsequently granted in April 2012. The applicant incorporated Ai Qian Pty Ltd on 17 March 2014, which purchased an operating business in February 2015. The business traded as Superjuice Bar (the Business).

10. The applicant confirmed that the Business operated successfully until January 2020. At this time, she believes that God engaged her with His angel and has given her supernatural powers that are unique to her. She further stated that the onset of COVID-19 and the associated lockdowns in Melbourne meant that she was unable to open the Business from March 2020 and she was not invited to return.

11. In response to a question from the Tribunal, the applicant stated that she received no invoices and therefore paid no rent after January 2020. She further stated that she has not operated any other business, nor has she continued to operate the Business under any other entity since January 2020.

12. The applicant gave oral evidence that she was not aware of the requirement for her to continue to have an ownership interest in an actively operating main business at the time of decision. Had her representative advised her as such, after five years of working to operate a successful business, she stated that she would have ensured that she met the relevant criteria. The Tribunal does not doubt that this is so.

13. The issue in this case is in relation to whether the applicant has continued to meet the criteria under cl 892.211 of Schedule 2 to the Regulations. As noted above, if the applicant is unable to meet any one of the primary criteria, then the visa criteria cannot be met. The Tribunal firstly considered the contentious issue, whether the applicant was able to continue to meet the specific criterion under the first limb of cl 892.211(a) of Schedule 2 to the Regulations at the time of decision.

    Ownership interest in an actively operating main business

14. Clause 892.211(1) of Schedule 2 to the Regulations requires that the applicant had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made and continued to have that interest at the time the visa application was made. As noted above, the applicant must also continue to satisfy this requirement at the time of this decision [cl 892.221(a)]. No more than two businesses can be nominated for this purpose [reg 1.11(2)] and only one or both of the businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion: Yang v Minister for Immigration and Border Protection [2014] FCCA 1576.

15. The applicant told the Tribunal that she is relying on the Business to satisfy the requirements of the primary criteria.

16. Regulation 1.03 provides that ownership interest has the meaning given to it in s 134(10) of the Act. The definition of ownership interest in relation to a business, as relevantly defined in s 134(10) of the Act, means, amongst other things, ‘a shareholder in the company that carries on the business, including such an interest held indirectly through one or more interposed companies, partnerships or trusts’.

17. ASIC information in the Departmental file in relation to Ai Qian Pty Ltd, dated 29 May 2018, records that the applicant has been the sole director, secretary and shareholder since incorporation. The applicant gave oral evidence at hearing that Ai Qian Pty Ltd has since been deregistered by her accountant. She thinks this occurred sometime last year. At hearing, the Tribunal accessed the publicly available information on the Australian Business Register (ABR) and discussed this with the applicant. Details recorded on the ABR state that Ai Qian Pty Ltd was deregistered on 1 June 2022. The applicant accepted that the information was accurate. This means that the applicant no longer has an ownership interest in the nominated main business.

18. While ‘actively operating’ is not defined in the Regulations or the Act, the case of Shahpari and Ors v Minister for Immigration & Anor [2016] FCCA 513 (Shahpari) provides some guidance, where the court held that it was open to the Tribunal to find that the expression ‘actively operating’ involved a consideration of whether the business exhibited activity of a ‘repetitive, continuous and permanent character’ 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’. On the basis of the applicant’s oral evidence, the Business has not demonstrated such characteristics of active operations since January 2020.

19. The ABR also recorded cancellation of the Australian business number (ABN) in respect of Ai Qian Pty Ltd on 17 June 2022. It is noteworthy that cl 892.211(2) of Schedule 2 to the Regulations requires a nominated main business to have obtained an ABN and such a requirement must continue to be met at the time of decision. Clearly, at the time of decision, the Business no longer has an active ABN.

20. In light of the information on the ABR, the Tribunal put to the applicant at hearing under s 359AA of the Act, that this information, subject to her comments or response, could be the reason or a part of the reason for affirming the decision under review. The Tribunal explained that given her evidence that the Business has not operated since January 2020, cancellation of the Business’s ABN and deregistration of the entity through which the business she was relying upon was operating supports a conclusion that she is unable to meet the criteria that requires her to continue to have an ownership interest in an actively operating main business at the time of decision.

21. The applicant declined the offer of additional time after the hearing to comment. She told the Tribunal that she has made a significant investment into Australia and circumstances have resulted in her being in the current situation. She reiterated that she spent five years operating a successful business, that she did not have the chance to understand the requirement to continue operating the Business, and she is now on a meaningful mission working as an employee for an organisation through which she uses her powers for the benefit of the organisation. In her view, given that she has been given the chance to encounter God and His angels, the matter should involve more than just economic and financial considerations.

22. The Tribunal considered all of the evidence before it. The Tribunal is not satisfied that the applicant has held an ownership interest in the nominated main business since 1 June 2022, the date of deregistration of Ai Qian Pty Ltd. Furthermore, the ABN has been cancelled since 17 June 2022 and the Business has not been actively operating since January 2020.

23. It is unfortunate that the circumstances since January 2020 in respect of the direction taken by the applicant have not assisted her in meeting the required criterion at time of decision. It is also unfortunate that she had not been assisted to understand the requirements of the migration law. However, as discussed at hearing, the Tribunal must apply the relevant legislation, which in this case is very black and white, allowing no discretion for the decision‑maker to take into account the reasons why the Business is no longer actively operating and the applicant no longer has an ownership interest in the Business.

24. Therefore, the Tribunal finds that cl 892.211(1) of Schedule 2 to the Regulations cannot be met. As all of the criteria under cl 892.211 are unable to be met, cl 892.211 of Schedule 2 to the Regulations is not met. It therefore follows that cl 892.221(a) of Schedule 2 to the Regulations cannot be met in respect of cl 892.211. As such, all of the criteria under cl 892.221 cannot be met and the Tribunal finds accordingly. Consequently, there is no requirement for the Tribunal to consider the second limb of cl 892.221(a), being cl 892.214, nor is it necessary to consider cl 892.221(b) of Schedule 2 to the Regulations.

25. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

26. The Tribunal notes that the Act provides a discretion to the Minister to substitute for a decision of a review Tribunal another decision that is more favourable to the applicant, if he or she thinks it is in the public interest to do so. There are Departmental guidelines setting out what kinds of cases might result in Ministerial intervention, in addition to circumstances in which the Minister considers it would be inappropriate to intervene. The Minister does not have a duty to use, or consider using, any of the powers afforded in relation to intervention.

27. For the sake of completeness, the Tribunal considered the Minister’s Guidelines to Ministerial Powers (s.351, s.417 and s.501J) (the Guidelines) and whether the circumstances of this case supported a referral on the grounds that they were unique and exceptional. It is also noteworthy that the examples given for what may constitute ‘unique or exceptional circumstances’ are non-exhaustive.

28. Based on the currently available evidence, the Tribunal is not satisfied that unique and exceptional circumstances exist that warrant consideration by the Minister pursuant to s 351 of the Act. The Tribunal therefore declines to refer the case to the Minister for this purpose.

29. The Tribunal notes that it remains open to the applicant to provide additional material and information on any issues that she considers raise unique or exceptional circumstances, in line with the Guidelines, as part of a direct request to the Minister.

    DECISION

30. The Tribunal affirms the decision not to grant the applicant Business Skills (Residence) (Class DF) visa.

    Robyn Anderson
    Member

    
    

    ATTACHMENT – MINISTER’S GUIDELINES TO MINISTERAL POWERS

    …

    4. Unique or exceptional circumstances

    Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

    ·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person

    ·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case

    ·the Department has determined that the person cannot be returned to their country/countries of citizenship or usual residence due to circumstances outside the person’s control

    ·a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country

    ·the person is excluded from the grant of a protection visa or has had a protection visa cancelled or refused on character grounds and their circumstances have been assessed as engaging Australia’s non‑refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm as provided in section 36(2A) of the Act.

    5. Other relevant information

    For all cases referred to me under these guidelines, the Department will provide information on any other relevant issues, including the following:

    ·circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child - which must be treated as a primary consideration, but can be balanced against other primary considerations

    ·circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia’s migration programme

    ·whether the continued presence of the person in Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia’s international relations

    ·whether there are character concerns in relation to the person, particularly concerns related to criminal conduct

    ·information about a person’s history of compliance with Australian laws, including migration laws, such as:

    oany offence or fraud against the migration or citizenship legislation

    oany failure to comply with their visa conditions

    oany periods as an unlawful non-citizen in the community

    otheir history of cooperation and engagement with the department to resolve their immigration status, particularly in relation to identity and travel documents

    odetails of any ongoing court proceedings challenging a decision related to the case and any outcome available before I consider the case

    ·the level and nature of the person’s integration into the Australian community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.

    CASES THAT SHOULD NOT BE BROUGHT TO MY ATTENTION

    6. When the powers are not available

    My intervention powers are not available if:

    ·there is no review decision on the case by a relevant review tribunal or

    ·I have exhausted my power in relation to a review tribunal decision because I have already intervened to grant a visa.

    7. Inappropriate to consider

    Cases which do not meet these guidelines for referral, and with the types of circumstances described below, are inappropriate for me to consider. The Department will finalise these cases without referral to me and advise the person or their authorised representative in writing:

    ·the request is made by a person who is not the subject of the request or their authorised representative

    ·the person is in the community and:

    ois an unlawful non-citizen and remains an unlawful non‑citizen throughout the course of their Ministerial intervention request; and/or

    odoes not cooperate in ensuring that a valid travel document is available (or has not satisfied the Department that they are stateless)

    ·the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa

    ·the person’s visa has been cancelled because they breached their visa conditions

    ·the person has had a visa refused because they did not comply with the conditions of a previous visa

    ·the person has been refused a visa or has had a visa cancelled on character grounds

    ·ASIO has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect

    ·the person could apply for a Partner visa onshore but is subject to an 8503 condition (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided

    ·the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations)

    ·the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore

    ·the person has left Australia

    ·the person has an ongoing application for a substantive visa (either onshore or offshore) with my Department

    ·the person has an ongoing application for merits review of a visa decision with a relevant review tribunal

    ·the person has had a remittal or a set aside decision from a relevant review tribunal or a court

    ·the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E

    ·the person has an ongoing Ministerial intervention request under any of the powers covered by these guidelines

    ·a Notice of intention to remove has been issued to the person, and the Ministerial intervention request has not been initiated by the Department

    ·the person holds a Bridging visa E with visa condition 8512, which specifies that the person must leave Australia by a specified date

    ·the request raises claims only in relation to Australia’s non refoulement obligations.