Yew (Migration) - [2019] AATA 1540

Yew (Migration) [2019] AATA 1540 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Foong Sin Yew
Mr Wing Fook Goh
Mr Chinq Loong Goh
Mr Chinq Heei Goh
Miss Chinq Leing Goh
CASE NUMBER:  1716629
DIBP REFERENCE(S):  BCC2015/3049259 BCC2017/2826436 BCC2017/2826445
MEMBER:Robyn Anderson
DATE:4 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the applicant meets the following criteria for a subclass State/Territory Sponsored Business Owner (Residence) visa:
·Sub-clause 892.211(1) of Schedule 2 to the Regulations.

Statement made on 04 January 2019 at 4.00pm

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 State/Territory Sponsored Business Owner (Residence) visa – formal share ownership in the main business – operating a café in regional Australia – all shares owned by the applicant’s spouse – ASIC records amended for the relevant period – half shareholdings held beneficially for the applicant – business operated for the provision of goods and services – decision under review remitted

LEGISLATION

Corporations Act 2001
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 892.211 rr 1.03, 1.11

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 14 July 2017 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 19 October 2015. The delegate refused to grant the visas on the basis that the first named applicant (Ms Yew) did not satisfy sub-clause 892.211(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that Ms Yew held any formal share ownership in the main business, being Yuwee Enterprise Pty Ltd.

3. The applicants appeared before the Tribunal on 4 December 2018. Ms Yew and Mr Goh gave oral evidence and presented their arguments. The Tribunal also received oral evidence from Mr Alvin Peterson, Mr Roy Roderick and Mr Michael McDonald.

4. The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6. Prior to their arrival in Australia in January 2011, Ms Yew and her family resided in Malaysia. While Ms Yew was employed as a legal secretary, Mr Goh operated his own business in the construction industry. Ms Yew told the tribunal that things were complicated in Malaysia in a political sense and they were concerned in respect of their future rights. She and her husband decided that a move to Australia would be in the best interest of the family, enabling the children to receive a good education and the family to establish itself in the Australian community.

7. Ms Yew further stated that…

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 Yew (Migration)

Details

AGLC: Yew (Migration) [2019] AATA 1540
Case: [2019] AATA 1540
Decision Date: 4 January 2019

CaseChat Overview and Summary

This matter concerned an appeal by Yew against a decision of the Migration Review Tribunal (MRT) regarding her application for a Subclass 892 State/Territory Sponsored Business Owner (Residence) visa. The core of the dispute revolved around whether Yew had met the requirement for formal share ownership in her main business, an operating café in regional Australia.

The primary legal issue before the Federal Court was whether the MRT had erred in law by finding that Yew did not satisfy the formal share ownership requirement for the visa. Specifically, the court had to consider whether the MRT had adequately addressed the evidence suggesting that, despite ASIC records showing all shares were held by Yew's spouse, Yew held half of those shareholdings beneficially. The court also considered whether the business was operated for the provision of goods and services as required.

The Court found that the MRT had failed to properly consider the evidence of beneficial ownership and the implications of the amended ASIC records. It was held that the Tribunal's conclusion that Yew lacked formal share ownership was not open to it on the evidence presented. The Court determined that the MRT had not adequately engaged with the applicant's case regarding her beneficial interest in the business.

Consequently, the Federal Court allowed the appeal and remitted the decision to the Migration Review Tribunal to be heard and determined according to law.

Orders