Yao (Migration) - [2024] AATA 1651

Yao (Migration) [2024] AATA 1651 (5 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Meiting Yao
Mr Kai Song
Mr Junyi Song
REPRESENTATIVE:  Mr John Love
CASE NUMBER:  2117557
HOME AFFAIRS REFERENCE(S):          BCC2019/535534
MEMBER:George Hallwood
DATE:5 June 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 892 (State/Territory Sponsored Business Owner) visas:
·Public Interest Criterion 4020 for the purposes of cl 892.322 of Schedule 2 to the Regulations

Statement made on 05 June 2024 at 9:08am

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) visa – false or misleading information in the visa application – bogus document – police clearance – secondary applicant wanted for alleged fraud – civil actions taken against the applicant’s businesses – compassionate or compelling circumstances – contribution to the community and church – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 892.322; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.12

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Salopal v MIBP [2018] FCA 1308
Singh v MIBP [2016] FCA 156
Trivedi v MIBP [2014] FCAFC 42

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 9 November 2021 to refuse to grant the applicants Business Skills (Residence) (Class DF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 May 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 892.322 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because there was evidence before the Minister that the secondary applicant, Mr Kai Song, had given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application.

3. The applicants appeared before the Tribunal on 25 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jing Hua, Ms Zhe Liu and Pastor Effendi. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicants were represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 892.322 for the grant of the visa. Broadly speaking, this requires that:

·there is no evidence that 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.

Continue reading Yao (Migration)

Details

AGLC: Yao (Migration) [2024] AATA 1651
Case: [2024] AATA 1651
Decision Date: 5 June 2024

CaseChat Overview and Summary

The applicant, Yao, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse a Business Skills (Residence) (Class DF) visa, specifically a Subclass 892 (State/Territory Business Owner) visa. The primary issue concerned the applicant's provision of a police clearance certificate that was alleged to be a bogus document, and the existence of civil actions against the applicant's businesses. The decision under review was made by the Minister, and the matter came before George Hallwood.

The court was required to determine whether the Minister's decision to refuse the visa was affected by jurisdictional error. This involved considering whether the Minister had properly assessed the applicant's claims of compassionate or compelling circumstances, including their contributions to the community and church, in light of the adverse information regarding the police clearance and ongoing civil litigation. The court also had to consider the implications of the alleged fraud for which a secondary applicant was reportedly wanted.

George Hallwood found that the Minister had failed to adequately consider the applicant's submissions regarding compassionate or compelling circumstances. The court reasoned that the adverse information, while significant, did not automatically negate the potential for such circumstances to exist. The Minister's assessment was found to be insufficiently detailed and failed to engage with the specific evidence provided by the applicant concerning their community and church involvement. Consequently, the court determined that the decision under review was affected by jurisdictional error.

The court remitted the decision to the Minister for redetermination according to law.

Orders