FEDERAL CIRCUIT COURT OF AUSTRALIA
| YU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2690 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision made by a primary decision-maker not to grant the applicants a Business Skills (Residence) (Class DF) Business Owner (subclass 890) visa (Business visa) – whether a particular criterion had to be satisfied at the time Tribunal decided to affirm decision or at the time the primary decision-maker decided not to grant the Business visa – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3 Migration Regulations 1994 (Cth), Schedule 2, cll.890.21, 890.22, 890.211, 890.221 |
| First Applicant: | DAI YU |
| Second Applicant: | XINYUE YU |
| Third Applicant: | QIANG BI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 419 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 19 September 2019 |
| Date of Last Submission: | 19 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2019 |
REPRESENTATION
| Counsel for the Applicants: | Dr A J Greinke |
| Solicitors for the Applicants: | Auyeung Hencent & Day Lawyers |
| Counsel for the First Respondent: | Ms K Hooper |
| Solicitors for the First Respondent: | DLA Piper |
ORDERS
The application is dismissed.
The applicants pay the first respondent’s costs set in the amount of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 419 of 2018
| DAI YU |
First Applicant
| XINYUE YU |
Second Applicant
| QIANG BI |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) raises two questions. The first is whether the second respondent (Tribunal), when reviewing the decision of a delegate not to grant the applicants a Business Skills (Residence) (Class DF) Business Owner (subclass 890) visa (Business visa), incorrectly proceeded on the basis that a particular criterion for the granting of the Business visa had to be satisfied on the day it…
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Details
- Case
- [2019] FCCA 2690
- Decision Date
CaseChat Overview and Summary
The applicant sought remedies under s 476 of the *Migration Act 1958* (Cth) following a decision by the Administrative Appeals Tribunal (Tribunal) that affirmed a primary decision-maker's refusal to grant a Business Skills (Residence) (Class DF) Business Owner (subclass 890) visa. The dispute centred on whether a specific criterion for the visa needed to be satisfied at the time the Tribunal made its decision or at the time the primary decision-maker refused the application.
The court was required to determine the correct time at which the applicant had to satisfy the criteria set out in clauses 890.22 and 890.221 of Schedule 2 to the *Migration Regulations 1994* (Cth). Specifically, the court had to consider whether the applicant needed to continue to satisfy the criteria in clause 890.211, which requires an ownership interest in a main business for at least two years immediately before the application, at the time of the Tribunal's review or at the time of the initial refusal.
The court examined the wording of clause 890.221, which states that "The applicant continues to satisfy the criteria in clauses 890.211, 890.215 and 890.216." The court reasoned that the word "continues" indicated an ongoing requirement. Therefore, the applicant was obliged to satisfy clause 890.211 at the time of the Tribunal's decision, not merely at the time of the primary decision-maker's refusal. The applicant had failed to satisfy the delegate regarding her ownership interest in Elbelle’s Early Learning Centre Pty Ltd and her direct and continuous involvement in the management of New Australia Agricultural Development Company Pty Ltd. Furthermore, the Tribunal had obtained information suggesting the applicant had ceased to be a shareholder of NAADCO, which, in light of the ongoing requirement under clause 890.221, meant she no longer satisfied the criteria. The court found no jurisdictional error in the Tribunal's decision.
The court was required to determine the correct time at which the applicant had to satisfy the criteria set out in clauses 890.22 and 890.221 of Schedule 2 to the *Migration Regulations 1994* (Cth). Specifically, the court had to consider whether the applicant needed to continue to satisfy the criteria in clause 890.211, which requires an ownership interest in a main business for at least two years immediately before the application, at the time of the Tribunal's review or at the time of the initial refusal.
The court examined the wording of clause 890.221, which states that "The applicant continues to satisfy the criteria in clauses 890.211, 890.215 and 890.216." The court reasoned that the word "continues" indicated an ongoing requirement. Therefore, the applicant was obliged to satisfy clause 890.211 at the time of the Tribunal's decision, not merely at the time of the primary decision-maker's refusal. The applicant had failed to satisfy the delegate regarding her ownership interest in Elbelle’s Early Learning Centre Pty Ltd and her direct and continuous involvement in the management of New Australia Agricultural Development Company Pty Ltd. Furthermore, the Tribunal had obtained information suggesting the applicant had ceased to be a shareholder of NAADCO, which, in light of the ongoing requirement under clause 890.221, meant she no longer satisfied the criteria. The court found no jurisdictional error in the Tribunal's decision.
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
Particularly relevant to the questions that arise in this proceeding are cl.890.22 and cl.890.221 of Schedule 2 to the Regulations:890.22--Criteria to be satisfied at time of decision890.221The applicant continues to satisfy the criteria in clauses 890.211, 890.215 and 890.216. The expression “main business” is defined in reg.1.11(1) of the Regulations:(1) For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:(a) the applicant has, or has had, an ownership interest in the business; and(b) 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; and(c)the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:(i) if the business is operated by a publicly listed company—at least 10% of the total value of the business; or(ii) if:(A) the business is not operated by a publicly listed company; and(B) the annual turnover of the business is at least AUD400 000;at least 30% of the total value of the business; or(iii) if:(A) the business is not operated by a publicly listed company; and(B) the annual turnover of the business is less than AUD400 000;at least 51% of the total value of the business; and(d) the business is a qualifying business. The applicant attempted to meet the requirements of cl.890.211 and cl.890.221 by claiming she had an ownership interest in two businesses. One was New Australia Agricultural Development Company Pty Ltd (NAADCO), and the other is Elbelle’s Early Learning Centre Pty Ltd (Elbelle). The applicant was unable to satisfy cl.890.211(1) in relation to Elbelle because she did not continue to have an ownership interest in that company for at least two years before she applied for the Business visa. As for NAADCO, although the applicant showed she had an ownership interest in that company for at least two years before she applied for the Business visa, the applicant did not satisfy the delegate she maintained, or has maintained, direct and continuous involvement in the management of NAADCO’s business. The delegate, therefore, on 28 October 2015, refused to grant the applicant the Business visa. On 6 November 2015 the applicants applied to the Tribunal for review of the delegate’s decision. By letter dated 30 August 2017 to the applicants’ agent,[1] the Tribunal informed the applicants that it obtained information that indicated the applicant had ceased to be a shareholder of NAADCO. The Tribunal said this information was relevant because cl.890.221 of Schedule 2 to the Regulations “requires that you continue to satisfy the criteria in cl.890.211”, and that that clause “requires that you have had, and continue to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application is made”. [1] CB1208
Ratio Decidendi
Legal Principle Established
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