Yun Li and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Yun Li and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2953 (21 August 2024)
Division:GENERAL DIVISION
File Number(s): 2022/10087
Re:Yun Li and Yuchen Li
APPLICANTS

Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member J Cipolla
Date:21 August 2024
Place:Sydney

The decisions under review made by the Respondent on 24 October 2022 – to cancel the Business Talent (Permanent) (Class EA) (subclass 132) visas of Mr Yun Li and Mr Yuchen Li pursuant to section 134 of the Migration Act 1958 (Cth) – are affirmed.
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Senior Member J Cipolla
CATCHWORDS
MIGRATION – Business Talent (Permanent) (Class EA) (subclass 132) visa – visa cancellations – whether genuine effort made to obtain substantial ownership interest in an eligible business in Australia – whether genuine effort to utilise skills in actively participating at a senior level in the day-to-day management of that business – whether there is an intention to continue to make such efforts – whether cancellation would result in extreme hardship – decisions affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
SECONDARY MATERIALS
Procedural Instruction – Business Visa Cancellation, reissued on 1 July 2020
REASONS FOR DECISION
Senior Member J Cipolla
21 August 2024
INTRODUCTION

The Applicants in this matter are Mr Yun Li (the Applicant), aged 46 and his son Mr Yuchen Li (the Secondary Applicant) aged 18. Both are citizens of China.
The Applicant lodged an expression of interest for a Subclass 132 Business Talent visa on 12 April 2017 and later an application for the visa on 1 September 2017. In his application for the visa, the Applicant advised that his son, the Secondary Applicant, was a migrating member of the Applicant’s family unit. His wife Wanqian Xu was listed as a non-migrating member of the Applicant‘s family unit.
The Applicant made reference in his application to his academic and employment history indicating that he had completed a Masters in Science, Business, and Technology at the Shanghai Academy of Social Sciences in 2004. He also advised that he had been employed as the General Manager for Shanghai Qifa Industrial Company Limited (Shanghai Qifa) from 29 November 2005 until 1 September 2017. It appears that this business was involved in the distribution of automotive parts. The Applicant advised in his application that he did not possess functional English language ability.
In lodging his application for the visa, the Applicant submitted a business proposal in the following form:
As General Manager and majority shareholder at 50% of the equility (sic) in Shanghai Qifa Industry Ltd, Mr Li has accumulated a significant net asset base and he proposes to transfer some of these assets for business purposes and migrate with his family to Western Australia.
Mr Li intends to buy a substantial business which is not only capable of expansion and complimentary to his existing business interests, but which will also make a significant contribution to Western Australia’s economy. Given that he has a solid background in the wholesale/distribution industry sector in China, Mr Li wants to buy a Western Australian based business that is not only profitable, easy to operate, fully established/functioning, but also offers significant potential for expansion.
Such that he can introduce and import into Australia some of the products currently being distributed by his majority-owned Qifa Industry Co Ltd. He intends to buy a substantial business which is not only capable of expansion and complimentary to his existing business interests, but which will also make a significant contribution to Western Australia’s economy.
One wholesale/distribution business that is currently available for sale on the open market MWA in which meets Mr Li’s criteria as stated above, has been summarised as follows.
The Applicant’s proposal with respect to a ‘substantial’ Australian business makes reference to an Australian business that was for sale, namely ‘Perth Wholesales’, a national and imported product business which had an asking price of $1,710,000 plus stock. The Applicant submitted that having several years as a general manager of a large company in China that he was highly competent and well-equipped to buy and operate this business. The proposal noted that the Applicant was willing to invest at least $1.5 million in the acquisition of this business and that the investment would present many benefits to the Western Australian economy. The Applicant also outlined in the proposal how he intended to develop the business and grow and expand its operations. This business proposal can be seen in the T documents at page 37.
In processing the visa application, the Department of Home Affairs (the Department) requested the Applicant to provide a statement with respect to his spouse’s intention to settle in Australia ultimately, and to advise whether the Applicant and his spouse were permanently separated. The Department also sought a statement from the Applicant’s wife providing consent for his son’s settlement in Australia by a non-migrating parent and that the non-migrating parent should complete and sign a consent to grant an Australian visa to a child under the age of 18 years (form 1229).
The Applicant was also invited by the Department to provide evidence of the fact that he had maintained direct and continuous involvement in the day-to-day management and decision-making of his business Shanghai Qifa for the period January 2015 to December 2016. The Department also sought details of another company formed by the Applicant, Shanghai Fen Lan Baby Products Co., Ltd, noting that the Applicant had failed to declare his management involvement in this company in his application for a Business Investment visa.
A business plan with respect to the visa application was submitted by the Applicant and can be found in the T documents at pages 469-475. The business plan at page 471 indicates that as Mr Li
“has a solid background in the wholesale/distribution industry sector and a well-established network of contacts and distribution channels throughout large parts of China, Mr Li wants to start/create a Western Australian based distribution business, focusing on international trade by sourcing from WA products that are locally made or produced, all natural, organic and/or without additives, suitable for and complimentary to distribution through the above-mentioned channels in China.”
At page 475 of the T documents is a summary and conclusions with respect to the Applicant’s business plan. The plan notes that:
“Mr Li has made substantial progress towards and is very committed to establishing his business and personal future in Western Australia.…Mr Li is confident that the solid business foundations laid will translate into a strong business with outstanding prospects which have been outlined above.”
At page 469 of the T documents attached to the Applicant’s formal business plan/proposal was a State Nomination Agreement between the Government of Western Australia and the Applicant. The agreement notes that the Applicant lodged an application for State nomination in 2017 and that the nomination and application, including a business proposal to the Business Migration Centre in Western Australia in 2018, were approved. The Tribunal has been unable to locate the approval document and the date of the approval in the papers before it.
At page 514 of the T documents is a letter to the Applicant from the Department of Home Affairs, noting that the Applicant had been granted a Subclass 132 Business Talent visa on 16 August 2019. The grant letter noted that the Applicant must arrive in Australia by 16 August 2020, and must not arrive after 16 August 2024, with an indefinite length of stay from the date of each arrival through to 16 August 2024.
On 3 August 2022 the Applicant was forwarded a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 132 visa under section 134 of the Migration Act 1958 (the Act).[1] The NOICC noted that section 134(1) of the Migration Act provided that a Subclass 132 visa could be cancelled if the visa holder has not obtained a substantial ownership interest in an eligible business in Australia or is not utilising his or her skills and actively participating at a senior level in the day-to-day management of that business, or does not intend to continue to hold a substantial ownership interest in; and utilise his or her skills and actively participating at a senior level in the day-to-day management of an eligible business in Australia.
[1] T documents, pp 534 – 538. A NOICC was also sent to the secondary applicant on the same day, found at pages 539 – 548 of the T documents.
The NOICC noted that in accordance with subsection 134(2) of the Migration Act, that a Subclass 132 visa will not be cancelled if the Minister is satisfied that the visa holder has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business and intends to continue to make such genuine efforts.
The NOICC noted that subsection 134(10) of the Migration Act provides that an ‘eligible business’ means a business that the Minister reasonably believes is resulting or will result in one or more of the following: the development of business links with the international market; the creation of and maintenance of employment in Australia; the export of Australian goods or services; the production of goods or the provision of services that would otherwise be imported into Australia; the introduction of new or improved technology to Australia; and increasing commercial activity and competitiveness within sectors of the Australian economy.
The NOICC noted that on 1 September 2017 the Applicant applied for a Subclass 132 visa. As part of the visa application, the Applicant made a declaration noting an intention to make a genuine effort to actively participate, as an owner or part owner, in the day-to-day management at the senior level of a new or existing business in Australia. Additionally, the Applicant declared that he would participate in departmental surveys regarding his business activity while holding the visa.
The NOICC noted that the Applicant was granted his Subclass 132 visa on 16 August 2019 and entered Australia on 25 September 2019. The NOICC noted that on 18 October 2021, a request was made of the Applicant to complete and return a survey of business skills visa holders (form 1010) . Multiple requests were made by the Department to have the Applicant return the survey, however he failed to do so, and no response was provided by the Applicant to this request. Departmental records indicated that since the Applicant had been granted his Subclass 132 visa, he had spent 1003 days in Australia.
As no response to the information requested by the Department had been provided by the Applicant, the Department concluded that there was insufficient evidence available to the Department that demonstrated that the Applicant had either obtained, or genuinely intended to obtain a substantial ownership interest in an eligible business in Australia and similarly that the Applicant had failed to provide evidence that he was utilising, or intended to utilise his skills in actively participating at a senior level in the day-to-day management of that business. The delegate concluded that based on the insufficient evidence around these obligations, that they were considering cancelling the Applicant’s visa under the provisions of Section 134 of the Migration Act. The NOICC outlined the respective matters that the delegate would take into account in determining whether or not to cancel the Applicant’s visa.
On 24 October 2022 the Applicant was notified by a delegate of the Department of Home Affairs of the cancellation of his Subclass 132 Business Talent visa and the cancellation of his son Yuchen Li’s visa as a secondary visa holder.
Dissatisfied with the decision to cancel his Subclass 132 visa the Applicant lodged an application for merits review with the Administrative Appeals Tribunal on 23 November 2022.
REVIEW HEARING
The application for review was heard in Sydney on 5 August 2024. The Applicant and his son, the Secondary Applicant, were represented by a firm of solicitors,Alton Legal. Ms Tianran Liu, a solicitor with Alton Legal, appeared at hearing on behalf of the Applicants. The Minister was represented by Mr Rian Terrell, a lawyer, with the Australian Government Solicitor. Mr Li attended the hearing and gave oral evidence in person with the assistance of an interpreter in the Mandarin language.
The Tribunal noted that the issue before it was a decision that had been made by a delegate of the Minister to cancel the Applicant’s Subclass 132 Business Talent visa.
The Tribunal noted that the Applicant had sought merits review of the cancellation decision to cancel his Subclass 132 visa and that of his dependent son, Yuchen, a secondary visa holder.
The Tribunal noted that the Administrative Appeals Tribunal (AAT) was an independent body that had been set up by the Australian Government to conduct merits reviews of Federal government decisions. The Tribunal advised the Applicant that it would be giving careful consideration to the written evidence that had been provided to the Tribunal and to the oral evidence provided at the review hearing. The Tribunal noted that after conducting the review the Tribunal may affirm the decision under review or may set the decision aside and in doing so the Tribunal must give clear written reasons for its decision. The Tribunal outlined the procedures for the hearing. The interpreter and the Applicant were sworn in.
The Tribunal has considered the following materials lodged prior to the hearing:
(a)a paginated, compiled bundle of the Applicant’s evidence, filed on 2 August 2024;
(b)the Respondent’s bundle of new material, filed on 2 August 2024;
(c)the Respondent’s statement of facts, issues and contentions, filed on 6 June 2024;
(d)an email from the Respondent regarding its updated position, filed on 8 March 2024;
(e)the Respondent’s second statement of position, filed on 9 January 2024;
(f)the Respondent’s statement of position, filed on 26 September 2023; and
(g)T documents, filed on 9 February 2023.
The Applicant’s representative advised that she had no opening statement and that the Applicant was reliant on his written submissions dated 26 April 2024 that had been made to the Tribunal and would be reliant on the Applicant’s oral evidence elicited at hearing. The Applicant’s representative advised that with respect to the Secondary Applicant, Yuchen Li, that he had recently been granted a Child visa and that he would be sitting for the High School Certificate in New South Wales in October 2024.
The Applicant’s representative asked the Applicant what kind of genuine effort he had engaged in to establish a business in Australia. The Applicant stated that he had to assess the local economic situation, and that he had to obtain a better understanding of the industry that he was intending on operating in. The Tribunal enquired of the Applicant what industry he was referring to. The Applicant stated it was the industry that he was engaged in now, namely, the sale of dash cameras for motor vehicles.
The Applicant advised that he has been engaged in training once a month and has been learning how to affix camera mechanisms to cars. The Applicant’s representative asked the Applicant what sort of training he was talking about, and he advised that he was currently engaged in a Certificate III in motor mechanics and that he was undertaking these studies at ‘My Trade Begin’ in Granville in New South Wales. The Applicant’s representative asked the Applicant how long he had been engaging in these studies and the Applicant advised since February 2024. The Applicant added that in order to install these parts in a motor vehicle, he had to have the requisite knowledge and that is why he was undertaking his certificate studies.
The Applicant stated that some of his products had been stopped on entry from China to Australia and that inspection of these products was undertaken and that he had recently obtained relevant inspection certificates.
The Applicant stated that he is also in the process of building a website and that once that website has been built, he will be able to get his marketing up and running. The Applicant stated that he has given gifts of his dash camera products to a number of major brands, and that he was currently waiting for their feedback with respect to the product. The Applicant stated that he had applied for trademark for this product. The Applicant stated that he has approached some popular vehicle companies to discuss potential business opportunities with them and the Applicant stated that this was an accurate summary of what he had been doing in respect to his business to date. The Applicant’s representatives questioning of the Applicant concluded.
The Respondent’s representative Mr Terrell made opening comments on behalf of the Minister. Mr Terrell noted that the Respondent was reliant on its statement of facts, issues and contentions submitted on behalf of the Minister. Mr Terrell noted that in its submission it had set out the factual background of the matter in summary form and a general overview of the Respondent’s arguments
Mr Terrell noted that his submissions would largely focus on the relevant provisions of the Migration Act, namely s.134(1) and s.134(2). Mr Terrell noted that the Applicant and his representative had referred in their opening statement to the genuine efforts that the Applicant had undertaken to obtain a substantial ownership interest in an eligible business and to be actively participating at a senior level in the day-to-day management of the business. Mr Terrell noted that the Tribunal must consider the requirements of s.134(1) and s.134(2) of the Migration Act. Mr Terrell noted that the legislation had been amended since the cancellation of the Applicant’s visa but the Tribunal did not need to concern itself with those amendments as they were not material to the proceedings before it. The Tribunal needed to engage with the language of s.134(1) and s.134(2) with respect to the cancellation power and the considerations that a visa should not be cancelled if a visa holder has made a genuine effort to obtain a substantial ownership interest in an eligible business and a genuine effort to utilise his/her skills in actively participating at a senior level in the day-to-day management of that business.
Mr Terrell noted that the Applicant’s position appeared to be that he has made and will continue to make genuine efforts with respect to these legislative requirements. Mr Terrell noted that ‘eligible business’ is defined in the legislation but the word ‘business’ is not defined and must be given its ordinary meaning. Mr Terrell stated that his focus would be on what business the Applicant had actually established and whether he had obtained a substantial ownership interest in an eligible business in Australia.
Mrs Terrell noted that these proceedings had been on foot for some time. He further noted that the Subclass 132 visa had been granted to the Applicant on 16 August 2019, five years ago. Mr Terrell noted that the T documents were extensive but most of the material in those documents were no longer current. Mr Terrell noted that the Applicant sought and was granted the Subclass 132 visa on the basis of involvement with a completely different business. Mr Terrell noted that the Applicant has now pivoted to a dash camera business and the evidence pertaining to this business is not to be found in the T documents only in the documents that he has submitted since lodging his application for merits review with the AAT. Mr Terrell stated that he had no further opening remarks.

Mr Terrell noted that at the time of the Applicant’s visa application, he was involved in business activities in China and asked the Applicant about the nature of the business. The Applicant advised that it was Shanghai Qifa Industrial Company. Mr Terrell noted that the Applicant intended to transfer the assets in the Shanghai business to Australia and migrate with his family to Western Australia. The Applicant confirmed that this was the case. Mrs Terrell further noted that the Applicant stated that he intended to buy a substantial business in Western Australia and was contemplating purchasing an existing business and that his business ventures would make a significant contribution to the Western Australian economy. The Applicant confirmed that this was correct.
Mr Terrell took the Applicant to his business proposal contained in the T documents at page 38 that included a financial summary of the business that he was considering purchasing at the time in Western Australia. Mrs Terrell also referred the Applicant to page 40 of the T documents namely an organisational chart that referred to the Applicant as the general manager of his Shanghai business.
Mrs Terrell noted that at page 469 of the T documents there was a more extensive business plan. That document indicated that the Applicant was intending on establishing a wholesale/distribution business in Western Australia which he believed would lead to significant economic benefits to Western Australia. The document made reference to the Applicant’s Shanghai business that he founded in 1994, and makes reference to the key achievements with respect to that business. Mr Terrell noted that page 473 of the T documents further outlines the Applicant’s Australian business plans. The document indicates that “including working capital and the intended purchase of the warehouse/storage facility, plus stock, Mr Li will invest at least $1 million into the establishment of such a business, with a significant amount to be made available (possibly from profits) for a future expansion”. Mr Terrell confirmed with the Applicant that this suggested that he was committed to investing $1 million in an Australian business and the Applicant confirmed that this was the case.
Mr Terrell then took the Applicant to page 33 of the T documents, namely the Applicant’s application for a Business Talent visa where the Applicant was asked to outline his business intentions. The Applicant stated that he planned to invest $1.5 million into a business in Australia and that the Applicant declared that he did not at that time have any business interests in Australia.
Mr Terrell noted that the Applicant was granted his Subclass 132 visa on 16 August 2019 and that he arrived in Australia as the holder of that visa on 25 September 2019 and the Applicant confirmed that this was correct.
Mr Terrell took the Applicant to page 522 of the T documents, namely, a letter from the Department of Home Affairs dated 18 October 2021. Mr Terrell noted that this letter that had been forwarded to the Applicant, was a request for information, namely a survey of business skills visa holders, requesting the Applicant to complete a compulsory 24 month survey. The survey required the Applicant to provide information about his business activities and Mr Terrell notes that the Applicant did not respond to that letter. Mr Terrell noted that the Applicant was sent a further letter on 1 July 2022 that can be located at page 527 of the T documents, namely a further business monitoring survey that the Applicant was required to complete. Mr Terrell noted that the Applicant replied to this letter on 4 July 2022 by email at page 529 of the T documents. The interpreter interpreted the contents of that email to the Applicant for his benefit. The Applicant stated that he did not send the email located at page 529 of the T documents. Mr Terrell asked the Applicant who sent it and he advised that he did not know. Upon having that document read to him in its entirety, the Applicant stated that he might have asked a friend of his to reply to the business survey sent to him by the Department on his behalf, and that he may have told the friend what to say in the relevant email response.
The Applicant stated that he did not receive the first business survey email from the Department, however, he did receive the second one. Mr Terrell noted that it appeared that the first email was sent to an old email address and that the second business survey was sent to an updated e-mail address provided by the Applicant. The Applicant was taken to page 574 of the T documents which refers to requirements of an Applicant to respond to requests for information from the Department as part of business skills monitoring. The Applicant was again taken to page 529 of the T documents, namely the Applicant’s email of 4 July 2022 which refers to his companies in China and Australia. The Applicant stated that the reference should be just the one company and that the reference to ‘companies’ was a mistake. Mr Terrell asked the Applicant whether he had maintained involvement with his Shanghai company since he had been in Australia, noting that there had been no reference to the Shanghai business since the Applicant arrived in Australia. The Applicant stated that he continued to have some involvement with the Shanghai company, however he currently had no involvement with the company, and that he stopped having involvement in Shanghai Qifa, in 2021 after the pandemic.
Mr Terrell asked the Applicant about his involvement in Ezio Enterprises Pty Ltd (Ezio), his Australian company. The Applicant stated that he was the person in charge of the company. Mr Terrell confirmed with the Applicant that this was the only company that he had provided evidence to the Tribunal about, and he confirmed that it was. Mr Terrell confirmed that no evidence had been provided with respect to Shanghai Qifa and the Applicant stated that this business no longer existed and had not existed since 2021. Mr Terrell asked the Applicant whether his efforts were now focused on his Australian company Ezio and the Applicant confirmed this was the case. Mr Terrell noted that the Applicant had filed only 12 documents in these proceedings with respect to Ezio.
Mr Terrell took the Applicant to the statement that he had submitted to the Tribunal on 26 April 2024, noting that he established Ezio in 2021 and described it in his submission as being fully operational by early 2021, as evidenced by his business-related travel to Western Australia in March 2021. The Applicant was invited to comment. The Applicant stated that for the Chinese, fully operational has a different meaning and that it means that a business has a bank account and sales, and that fully operational in the Chinese sense could mean ‘ready to operate’. Mr Terrell asked the Applicant whether the company had been ready to operate since early 2021, and he confirmed it had.
Mr Terrell once again made reference to the Applicant’s statement in support of his application for review dated 26 April 2024. In the statement the Applicant notes that the turnover for his Australian business Ezio for the financial year 2023 was $228,798. Mr Terrell noted that the statement indicated that “despite the challenges posed by the Covid-19 pandemic, there had been a gradual recovery.” Mr Terrell asked the Applicant what he meant by gradual recovery. The Applicant stated in the past there was no turnover and then the business started to have sales coming in.
Mr Terrell noted that the Applicant in his statement advised that he had confidence in his Road Memo car recorder business and asked why this was the case. The Applicant stated that in Australia there are more cars than the number of people in the population, and that car recorders are very expensive in Australia, whereas his car recorders were relatively cheap, and hence he could tap into a large market share.
Mr Terrell asked the Applicant whether his confidence in Ezio was derived from his actual experience with the company or from a prediction about the company’s future. The Applicant stated it was based on through his work experience and knowledge of the car industry he had developed that confidence.
Mr Terrell noted that the Applicant for the purposes of the review proceedings had obtained a current company extract for Ezio on 5 September 2023.[2] Mr Terrell noted that the company had been registered since 28 November 2019. Mr Terrell noted that the Applicant was named as a director of the company and held 100 ordinary shares. Mr Terrell asked the Applicant whether it was correct that he was the only director/shareholder/company director of this business and he confirmed that he was. Mr Terrell asked the Applicant whether the company had other staff and he advised that it did. Mr Terrell asked to those staff were. He advised that he had one staff member involved in creating a website for the business. He advised that this person was his wife, and that there was another person, a friend, Kevin Tang, who was involved in the business.
[2] Bundle of Applicant’s Evidence, p 88.
Mr Terrell asked whether Mr Tang or his wife were paid a salary by the company and the Applicant advised “not at the moment”. Mr Terrell asked whether they been paid a salary in the past and the Applicant stated that “because we have not obtained any profits yet, they joined the business as shareholders, one person is my wife, and the other person is my best friend in Australia, and I am not able to pay them.”
Mr Terrell asked the Applicant whether his wife or Kevin Tang are currently shareholders in Ezio, and the Applicant stated that he is currently the only shareholder and that he had promised his wife and Mr Tang that once the business is further developed, he will give them shares in the business. Mr Terrell confirmed with the Applicant that his evidence was that the business made no profit currently, and the Applicant confirmed that this was the case, and that the business only received ‘trivial’ orders not ‘major’ orders for products.
Mr Terrell noted that the Applicant’s evidence indicated that he had not sold his dash cameras to the general public but had just provided some prototypes for testing. The Applicant stated that unlike other products in Australia, his products required installation behind the rear mirrors of vehicles and that they have to be tested for their ability to withstand heat. Mr Terrell asked the Applicant whether he had sold his products to the general public. The Applicant stated that his customers were the general public. The Applicant stated that he worked for a business involved in the sale of cars, namely a vehicle retail company.
Mr Terrell enquired of the Applicant whether he was an employee of this company. The Applicant stated that he worked as a mechanic. He did not currently have a mechanics licence but was an apprentice and was undertaking this role supplemented by his apprenticeship training. Mr Terrell asked the Applicant whether the training that he was undertaking was for the purposes of becoming a motor mechanic and he advised it was. Mr Terrell asked the Applicant whether his workplace required him to undertake study and he confirmed that they did. Mr Terrell asked the Applicant the name of his employer, and he advised it was Auto Sports Group, trading as VW Castle Hill. Mr Terrell asked the Applicant whether he had installed dash cameras through his workplace and he advised that he had.
Mr Terrell asked the Applicant how his business made a profit. The Applicant stated that in terms of profits it would come from one of two ways, firstly the gap between the cost of him purchasing and selling the product, and secondly charging of an installation fee. Mr Terrell noted that in order to make a profit the Applicant needed to be selling the product to somebody and the Applicant confirmed that this was the case. Mr Terrell suggested that the evidence before the Tribunal indicated that this was not happening yet. The Applicant stated that he is not trying to sell the product to the users that purchase cars but to the companies that sell vehicles.
Mr Terrell made reference to the financial statements for Ezio for year ending 30 June 2023, found at page 10 of the bundle of the Applicant’s evidence.
The Applicant’s representative advised that she needed to explain the financial statement to the Applicant for the Applicant’s benefit. Mr Terrell noted that the financial statement for 30 June 2023 was not signed. The Applicant was not able to explain the contents of the document. The Applicant stated that he could not remember signing the document. Mr Terrell asked the Applicant whether he had ever signed a financial document on behalf of Ezio and he advised that he had signed one in July 2024. Mr Terrell asked the Applicant whether he had signed a financial statement for Ezio. The Applicant stated he had just signed one this year because the financial advisor that prepared a statement attended his residence and hence, he was asked to sign the document.
Mr Terrell asked the Applicant whether as sole director of Ezio he had signed a document with the Australian Taxation Office (ATO). The Applicant stated that his accountants attended to lodgement of documents with the ATO. The Applicant stated that his accountant will ask for an E-statement from him. Mr Terrell asked the Applicant how the unsigned statement of 30 June 2023 was prepared, and the Applicant stated that he provided information to his accountant.
Once again Mr Terrell made reference to the 2023 financial statement indicating that Ezio made a trading profit of $203,195. Mr Terrell asked the Applicant to explain the trading profit as it was the Applicant’s oral evidence that Ezio had never made a profit. The Applicant stated that this amount came from his personal investment in the business and that there was only around $3000 in the account. Mr Terrell asked the Applicant whether those investments had anything to do with the Road Memo business and the Applicant stated that they related to that business. The Applicant stated that $3000 in the company account was not enough to establish the business and that he had to invest additional funds into the company account. Mr Terrell noted that this evidence indicated that the trading profit was not on account of sales or business activity, and the Applicant advised “it was not a profit, it was a sort of investment, money I deposited so that the company could use.”
Mr Terrell stated that on this basis the money should be described as a financial investment and not trading profit and the Applicant agreed.
Mr Terrell once again, with reference to the profit and loss statement for year ending 30 June 2023, enquired about the entry for Uber sales of $34,647.[3] The Applicant stated that this amount referred to monies that he had earned in his part-time job as an Uber driver. Mr Terrell enquired why these funds formed part of the profit and loss statement for Ezio and the Applicant stated that these funds were paid into Ezio’s accounts. Mr Terrell asked the Applicant whether he paid income tax on this amount, and he advised that he did.
[3] Bundle of Applicant’s evidence, p 13.
Mr Terrell made reference to page 49 of the Bundle of the Applicant’s evidence, namely a GST calculation worksheet for the purpose of business activity statement. The Applicant was asked whether he recalled this document and he advised that he had seen it. Mr Terrell asked the Applicant whether it was completed by his accountants based on information provided by the Applicant and he confirmed it was. Mr Terrell noted that this document covered the period 1 July 2023 to 30 September 2023 and indicated total sales of $22,800. Mr Terrell made reference to the GST calculation worksheet with respect to business activity statement at page 52 of the Bundle of the Applicant’s Evidence and noted three cash deposits under the heading ‘G1 transactions’ totalling $22,800. Mr Terrell asked the Applicant whether they were his cash deposits and the Applicant advised that he transferred these funds from his personal account into the company account. Mr Terrell enquired of the Applicant why he was making cash deposits to the company.
The Applicant explained that these were items that he had sold in his business and that the customer sent payments to his personal account and he then transferred that money from his personal account to the company account. Mr Terrell asked the Applicant why he would not give customers details of his company account for any deposits. The Applicant responded that customers only had his personal account details. Mr Terrell noted that the Applicant advised in his evidence that he would get customers to transfer funds into his personal account and he would then transfer those funds to his company account. Mr Terrell asked, why the Applicant would not give customers the details of the company account to deposit money into, given that he was undertaking deposits from his personal account to the company account. The Applicant stated that at the beginning he had a company account at Westpac that the bank closed for unknown reasons. For a while the Applicant did not have a company account and he therefore asked his customers to deposit into his personal account. The Applicant stated that he later opened a new company account with the Commonwealth Bank. He would then transfer deposits from his personal account to the Commonwealth Bank company account.
Mr Terrell asked the Applicant how much an individual dash camera cost. The Applicant stated between $300 and $500. Mr Terrell made reference to page 49 of the Bundle of the Applicant’s Evidence, namely a GST calculation worksheet pertaining to business activity statement. Mr Terrell asked the Applicant to refer to page 52 and whether there was any evidence of the sales described in the profit and loss statement for Ezio. The Applicant stated that during the hearing break he tried to recall these three sales transactions which resulted in deposits into the company account from the Applicant’s account. The Applicant stated that he also spoke with his accountant during the break. The Applicant stated that some fellow Uber drivers brought the dash cameras from him at a reduced rate, and he described the sales as half gift, half sales. The Applicant stated it was not reasonable for him to deposit every individual payment into the account, so he would wait until he had an accumulation of funds before he made the deposit into the company account.
Mr Terrell noted that there was no evidence before the Tribunal of gifts/sales that the Applicant had made to Uber drivers. The Applicant stated that he did not think he had provided such evidence and claimed that he had provided Uber drivers with warranty information pertaining to the product.
Mr Terrell made reference to page 52 and page 56 of the Bundle of the Applicant’s Evidence and asked whether the transactions in the GST calculation worksheet looked familiar to him. The Applicant stated they were familiar and reflective of company records. Mr Terrell made reference to expenses that the Applicant incurred and asked the Applicant whether he included personal expenses in the GST calculations. Mr Terrell asked what staff amenities had been provided to the business by Westfield. The Applicant stated that he believed it was a cup of coffee with a customer. Mr Terrell noted a lot of small transactions in the profit and loss statement such as repairs and maintenance, and an entry pertaining to an E gaming pub and the Applicant stated that he could not recall these expenses. Mr Terrell also noted that the statements indicated a significant number of expenses pertaining to toll roads and suggested to the Applicant that this related to his part-time work as an Uber driver. Mr Terrell further noted that a number of the transactions related to petrol costs and motor vehicle repairs and once again put to the Applicant this was relevant to his part-time work as an Uber driver. The Applicant agreed with this. Mr Terrell put to the Applicant that these costs had nothing to do with the Road Memo business. The Applicant confirmed that they were costs not related to this business.

Mr Terrell made reference to pages 70-73 of the Bundle of the Applicant’s Evidence which contained a number of photographs. Mr Terrell asked the Applicant where the photographs were taken, and he advised at home at his residential address in Schofield. Mr Terrell asked the Applicant whether he resided at this address, and he advised that it was his home, and it was rented accommodation. Mr Terrell noted that the photos were of Road Memo boxes and asked the Applicant if you opened the box, you would find the dash camera products and the Applicant confirmed that you would. There were no photographs of open boxes containing the product. Mr Terrell noted that there are a number of screenshots with product descriptions and that some were in English and some were in Chinese. The Applicant stated that when the photographs were taken, they were old photographs that had not been translated into English. The Applicant stated that later photos had been translated into English.
Mr Terrell referred to photographs on the Ezio website extracted on 2 August 2024[4] which still referred to Chinese currency. He further noted the webpage did not contain an email address or business address or contact numbers for the business. Mr Terrell stated that if the Applicant’s business objectives were sales of his dash camera products, then these details should have been included and not omitted. The Applicant was invited to comment on this. The Applicant stated that the website was not yet open to the public yet and that he needed to list new products on the website. Mr Terrell noted that the Applicant had provided evidence of the development of a website. The Applicant stated that he was trying to show that he was building and developing a website for his products. Mr Terrell put to the Applicant that this was a current extract from his website, and it was not a private webpage. The Applicant stated that it can be seen by others but only if they have been provided with the website address, and it is not available in a general search. Mr Terrell noted that if you conducted a web search for Road Memo or Ezio Enterprises that there were no results. Mr Terrell noted that someone who wanted to search the company would not be able to locate it. The Applicant confirmed that this was correct and that currently he was focusing on face-to-face sales. Mr Terrell suggested that the Applicants evidence indicated there had been no single sale as a consequence of someone accessing the website and the Applicant advised that this was the case.
[4] Respondent’s bundle of new material
Mr Terrell made reference to the Bundle of the Applicant’s Evidence at page 39-40, namely two excel spreadsheets titled “Offer sheet” and asked about the documents. The Applicant described page 39 as a quotation list. Mr Terrell clarified whether it was a quote and the Applicant advised it was a quote. The Applicant stated that these products had already been sold and installed. Mr Terrell stated that there was no evidence of this. The Applicant stated that he provided a receipt from Toyota for the installation of these cameras.
Mr Terrell noted that the Applicant sought merits review of the Minister’s decision to the AAT in 2022 and the Applicant confirmed that that was the case. Mr Terrell noted that the Applicant had two and a half years to prepare for hearing and to collate evidence relevant to the review. Once again Mr Terrell made reference to page 39 of the Bundle of the Applicant’s Evidence with respect to transactions totalling $2385. Mr Terrell enquired about receipts for these transactions.
Mr Terrell made reference to a chain of email correspondence between the Applicant and a Mr Charlie Gu in February 2024. The Applicant said Charlie Gu was the sales person from Toyota Castle Hill. The Applicant stated that this email correspondence related to the sales noted in the Excel spreadsheet at page 39. Mr Terrell asked whether Charlie had been issued with receipts for the purchase of products and the Applicant advised that he had not.
Mrs Terrell advised the Applicant that he wanted to ask questions with respect to the Applicant’s statement of 26 April 2024. Mr Terrell noted that the statement indicated that the Applicant had invested in the Australian share market by acquiring 3,457,000 shares in Pacific Development Capital Ltd for $432,215 on 1 October 2021. The Applicant retracted this evidence and advised that this was a scam, and the transaction did not go ahead. The Applicant added that if he had been the subject of a scam and lost $432,215, he would be pursuing an action against Pacific Development Capital Ltd. Mr Terrell noted that this was the first time that the Applicant had raised this and that the statement seemed to suggest that the Applicant’s investment in the share market was indicative of his commitment to investing in Australia. Mr Terrell noted that the Applicant submitted this evidence in support of his merits review application and that he had not retracted this evidence until the hearing before the Tribunal.
Mr Terrell asked the Applicant about his investment in property development in Western Australia that he referred to in his statement. In his written statement the Applicant stated that he had invested in contracted with Summit homes Group for the construction of a property in Byford, Western Australia and purchased land from Yuhe Global Investment Pty Ltd. However in his oral evidence the Applicant said that he contacted Summit Homes Group with respect to the construction of a property in Byford, Western Australia, and that he was about to purchase the property but the agent did not sell it to him. Mr Terrell noted that the oral evidence suggested that the Applicant had not invested in property development in Byford, Western Australia and the Applicant confirmed that this was the case. Once again Mr Terrell noted that this was the first time that the Applicant had amended the evidence provided in his statement of 26 April 2024.
Mr Terrell made reference to page 3 of the Bundle of the Applicant’s Evidence which contained a series of WeChat conversations with a Laurence. Mr Terrell asked the Applicant what these conversations were about. The Applicant stated that a Chinese car brand, namely BYD, was going to hold an event in Australia to promote a new engine in April 2024 and that the chat was around the potential of the Applicant bidding to co-host that event. Mr Terrell asked the Applicant what the outcome of the messages were. The Applicant stated that he submitted a bid but BYD did not make him an offer.
Mr Terrell made reference to page 6 of the Bundle of the Applicant’s Evidence in which he appeared to be corresponding with Laurence using a different email address to that used by Ezio. The Applicant stated that he had stated the wrong email address but confirmed he did not receive any email from Laurence. Mr Terrell concluded his cross-examination.
The Tribunal enquired of the Applicant’s representative whether she wished to engage in re-examination of the Applicant. The Applicant’s representative stated that she believed that there was some misunderstanding with respect to the Pacific shares and the Byford Western Australia property and she would speak to the partner of her law firm with respect to this evidence. The Tribunal noted that the Applicant had now retracted this evidence and had advised under oath that he did not purchase the shares on the basis that the transaction was a scam, and that the property in Byford Western Australia did not proceed because the agent did not sell the property to the Applicant. The Tribunal stated that the Applicant had clarified his statement at hearing before the AAT.
The Tribunal made reference to page 39 of the Bundle of the Applicant’s Evidence and asked the Applicant why he would retain a spreadsheet of transactions pertaining to sales for Charlie Gu but not for the sales he had made with Uber drivers. The Applicant stated that he had to provide this table to Charlie. The Tribunal asked the Applicant how the WeChat discussions were corroborative of the sale and installation of dashboard camera products to Uber drivers. The Applicant stated that post hearing he would try to collate evidence with respect to the sales and provide them to the Tribunal. The Tribunal consented to the provision of this additional evidence by close of business 8 August 2024.
The Tribunal enquired of the Applicant’s representative whether she wished to make any closing statement to the Tribunal and she advised that she did not and that she would be providing additional evidence by close of business 8 August 2024.
The Tribunal invited a closing statement from Mr Terrell on behalf the Minister. Mr Terrell advised the Tribunal that the evidence is such that the Applicant had not done what he said he would do when the visa was granted to him in August 2019. Mr Terrell noted that the Applicant’s Chinese business, Shanghai Qifa, closed down in 2021. Mr Terrell noted that the Applicant’s case ‘rises and falls’ on his reliance on Ezio Enterprises Pty Ltd as being his main business in Australia. Mr Terrell noted that the onus is on the Applicant to establish his business connections and that the Applicant has had two and half years to do so. Mr Terrell noted that there were significant deficiencies in the documents that the Applicant had provided with respect to the review.
Mr Terrell noted that the Applicant had five years almost to the day to establish a business in Australia since August 2019. Mr Terrell stated that based on the evidence before it the Tribunal can be satisfied that the Applicant has not established a business, and is not using his skills to actively operate that business in Australia. Mr Terrell noted that the Tribunal could find that with respect to the requirements of s.134(2) of the Migration Act that the Applicant had failed to do all of the things that this sub-section of the legislation required of him.
Mr Terrell stated that the Tribunal should be satisfied on the basis of the evidence before it that the Applicant is only a director of Ezio, and that there are no other directors or shareholders in this business. Mr Terrell stated that the Tribunal can be satisfied that there was no evidence of any employees employed by Ezio, or of the existence of any business plans for Ezio.
Mr Terrell noted that there was no evidence of investment in Ezio other than the Applicant’s injection of personal funds. Mr Terrell noted that there was no evidence of any trading partners or business or firms that Ezio had engaged with in respect of the business.
Mr Terrell stated that the Applicant’s credibility was impugned by the fact that he had retracted significant parts of his evidence contained in his pre-hearing statement of 26 April 2024 at the hearing. Mr Terrell noted that in the statement the Applicant claimed to have invested in property development in Western Australia and had also invested in the Australian share market. The Applicant made these submissions on the basis that they could be seen to be significant contributions to the Australian economy. However, the Applicant at hearing had retracted this evidence claiming that he never invested in the Australian share market in October 2021, due to him becoming aware of a scam with respect to these shares. Further to this that he had not invested in property development in Byford Western Australia due to the fact that the agent would not sell the said property to him.
Mr Terrell submitted that the Tribunal cannot accept that Ezio is fully operational. Mr Terrell stated that the financial returns of the business could not be accepted as an accurate and reliable depiction of the Applicant’s business. Mr Terrell pointed to the Applicant’s evidence that the financial documents for the financial year 2023 included the Applicant’s own expenses pertaining to his part-time employment as an Uber driver, namely petrol, mechanical and toll expenses. In addition to this, there were expenses that the Applicant was not able to explain with respect to the 2023 financial year statements.
Mr Terrell stated that the evidence before the Tribunal indicated that the Applicant’s Road Memo business was embryonic. This was evidenced by the fact that its website was in development and contained no contact details of the business which, given that the business objective was sales, was a curiosity that could not be explained by the Applicant. Mr Terrell pointed to the Applicants oral evidence that Ezio to date has failed to make a profit. Mr Terrell stated that the Applicant’s evidence under oath should be preferred to the unsigned financial documents for the 2023 financial year provided at review.
Mr Terrell stated that the Tribunal was unable to accept that Ezio had a turnover of $228,798 in the 2023 financial year. Mr Terrell pointed to the fact that at least $34,000 of those funds came from the Applicant’s employment as an Uber driver.
Mr Terrell noted that the Tribunal should find, based on the Applicant’s evidence at hearing, that he has insufficient knowledge of the financial affairs of the company, and that the Tribunal cannot be satisfied that Ezio is an eligible business as identified in the s.134(10) descriptors found in the Migration Act.
Mr Terrell noted that the hearing had been conducted on the basis of material that the Applicant had provided to support his review. Mr Terrell noted that that material was strikingly deficient as was the Applicant’s evidence at the review hearing. Mr Terrell reiterated that the Applicant’s business model was the sale of dash cameras into motor vehicles and that not a single document had been provided that could satisfy the Tribunal of the sale of one unit. Mr Terrell’s submission concluded.
Evidence pertaining to Mr Li’s ownership of and/or participation in a business in Australia
The Applicant lodged an application for a business talent visa on 1 September 2017. In his visa application located at page 21 of the T documents, the Applicant advised that he was applying for the visa in the ‘significant business history’ visa stream and that he had a secured a nomination of the Western Australian government based on his intention of participating as an owner of a business in that state.
In his application the Applicant stated that he planned to invest $1.5 million in an Australian business. Indeed it appeared the Applicant was closely looking at such a business, namely Perth Wholesales. Annexed to his application for the visa was a business proposal indicating that the Applicant intended “to buy a substantial business which is not only capable of expansion and complimentary to his existing business interests, but which will also make a significant contribution to Western Australia’s economy”. The Applicant further stated that he “intends to acquire a suitable business, ideally similar to the one above and invest a significant amount to fully exploit the business generic and specific market growth opportunities”.
The Applicant submitted a business plan with his application for the visa. The business plan can be located at page 471 of the T documents and indicates that the Applicant “has a solid background in the wholesale/distribution industry sector and a well-established network of contacts and distribution channels throughout large parts of China, Mr Li wants to start/create a Western Australian-based distribution business, focusing on international trade by sourcing from WA products that are locally made or produced, all natural, organic and/or without additives, suitable for and complimentary to distribution through the above-mentioned channels in China. Such products may include, but not limited to high-grade (Jarrah) honey, olive oil, skincare and/or other/similar products.”
The evidence before the Tribunal indicates that the Business Talent visa was granted to the Applicant on 16 August 2019 on the basis of the contents of his visa application and that the Applicant entered Australia as the holder of this visa on 25 September 2019.
The grant of this visa is contingent on an Applicant complying with relevant Departmental reporting obligations. The evidence before the Tribunal indicates that the Department of Home Affairs wrote to the Applicant on 16 August 2019, confirming that as part of the visa grant the Applicant had signed a declaration agreeing to meet certain obligations after his arrival in Australia, namely, that the Applicant had acknowledged that it was his responsibility to complete surveys with respect to his business activities in Australia and that the Department would generally request the Applicant to complete the survey approximately two years after his initial arrival in Australia.
At the time of the visa grant in August 2019, the evidence indicates that the Applicant signed the declaration in which he acknowledged that he would agree to meet ‘certain ongoing’ visa reporting obligations after his arrival in Australia.
The evidence before the Tribunal indicates that on 18 October 2021, the Department of Home Affairs wrote to the Applicant requesting information from him with respect to a survey of his business activities in Australia from the time of his arrival in Australia in September 2019. The letter requested evidence corroborative of the Applicant having a substantial ownership interest in an Australian business and with respect to evidence of his day-to-day management of the business. The letter also sought evidence of the funds that the Applicant had transferred and retained in Australia for business purposes. The Applicant failed to respond to this notice.
The evidence indicates that on 13 January 2022, the Applicant advised the Department of Home Affairs of a change of contact email. As a consequence of those changed contact details, the Department again, wrote to the Applicant on 1 July 2022, to advise him of the business monitoring survey dated 18 October 2021, which the Applicant was required to complete. The letter noted that the Applicant should complete the business monitoring survey and that the Department will revisit the Applicant’s response to the survey by the end of July 2022. The evidence indicates that the Applicant responded to the Department on 4 July 2022, stating that this was the first time that he had seen the email and requested more time to provide the requested materials and information. The Applicant stated that:
“Dear Visa officer, I have seen your email, and I received your email for the first time today. I granted 132 Visa issued the Department of Home affair at the end of 2019. I originally thought that I could start my business plan in Australia later, but from The Covid 19 pandemic that started in 2020 has continued for more than two years, and it has had a great impact on my companies in China and Australia. The past few years have been disastrous for me. I am seeking extension via SBDC, WA for the business review government for a business extension. My company needs to make adjustments after the epidemic in order to meet to business requirements, because the epidemic has disrupted too many things and brought immeasurable losses to small and medium-sized businesses like us. I will need more time for preparation of the materials and information you asked me to provide. Thanks again for your email.”
The Applicant’s business proposal submitted with his visa application refers to the prospective purchase of a ‘substantial’ Australian business namely ‘Perth Wholesales’, a national import/export product business which had an asking price of $1,710,000 plus stock. The Applicant submitted that having several years as a general manager of his import/export company in Shanghai, China, that he was highly skilled and well-equipped to buy and operate the business. The Applicant advised in his proposal that he was willing to invest at least $1.5 million in the acquisition of this business and that the investment would present many benefits to the Western Australian economy. The Applicant also outlined how he intended to develop this business and grow and expand its operations.

The evidence before the Tribunal indicates that despite hatching these business plans in 2017, and despite visiting Western Australia in April 2017, at which time the Applicant and his wife and son were pictured with Bruno Delfante, an officer with the Business Migration Centre in Perth, that these plans never came to fruition.
The Applicant has claimed in his evidence that the plans did not come to fruition due to the fact that the world was beset by the Covid-19 pandemic. The Tribunal notes that the pandemic did not impact Australia until late March 2020 and that Australian border remained open until April 2020. The Applicant entered Australia in late September 2019, and there is no evidence of the Applicant implementing any of his proposed business plans in the 6 months before the onset of the pandemic, the Australian border closing or indeed in the intervening period. As has been noted, the Applicant did not attempt to cobble together some evidence of a business in Australia until he was served with a NOICC in August 2022, almost three years after the visa grant and his initial entry to Australia in September 2019.
The Tribunal finds that the evidence before it indicates that the Applicant has established a company in Australia, Ezio Enterprises Pty Ltd (Ezio) which was registered by him in November 2019. The evidence indicates that the Applicant claims to be running a business in Australia under the umbrella of this company selling dash cameras to the Australian market. To corroborate this the Applicant has submitted unsigned financial documents for the financial year ending 2023. These financial documents, as confirmed in the Applicant’s own evidence at hearing as not being corroborative of sales in dash cameras and the claimed profits in that statement, bore no relation to the sale of any dash cameras.
Post hearing the parties filed the following documents which have been considered by the Tribunal:
(a)Certified translation of pages 59 – 65 of the Bundle of the Applicant’s Evidence, filed by the Applicant on 8 August 2024;
(b)Certified translation of pages 66 – 69 of the Bundle of the Applicant’s Evidence, filed by the Applicant on 8 August 2024;
(c)A document titled “Purchasing orders in May 2023”, filed by the Applicant on 8 August 2024;
(d)A handwritten document titled “Sale to Uber Driver”, filed by the Applicant on 8 August 2024;
(e)Tax Invoice from Ezio to Chailei Gu[5], filed by the Applicant on 8 August 2024; and
(f)the Respondent’s submission on Applicant’s further material, filed by the Respondent on 9 August 2024.
[5] It is understood that Chailei Gu and Charlie Gu refer to the same person.
Post hearing the Applicant provided some evidence indicative of a few sales of dash camera products. Some of these documents were referable in the bundle of Applicant’s evidence, but as they had not been translated and the Applicant undertook to have them translated post hearing. The documents provided indicate that a number of dash camera units were sold for 8 VW vehicles, suggestive that they were sold and installed in the Applicant’s current place of work at Auto Sports Group trading as VW Castle Hill. The year for these installations is not specific and is referable to 2019 - 2023. The documents do not equate to significant sales in the product or are not indicative of any incremental growth in sales over time.
The Respondent pointed to the deficiencies of the Applicant’s further materials. The Respondent submitted that the significance of the Applicant’s evidence at pages 55 – 69 of the bundle of the Applicant’s evidence is not apparent. The Respondent stated that the document titled “Purchasing orders in May 2023” does not confirm that sales of the Road Memo product had actually occurred, and, challenged that the handwritten document in respect of sale to Uber driver, fell well short of the kind of evidence of a sale that would be expected in a business. The Respondent also submitted that very limited weight should be given to the tax invoices filed, given they were provided post hearing and with respect to the inconsistencies between the Applicant’s oral evidence and the documentary material he filed.
The Tribunal finds that the Applicant provided piecemeal information in respect of the sale of dash cameras. However, even if the Tribunal were to accept these documents and take the Applicant’s case to its highest, the documents do not demonstrate significant sales or growth in sales over time.
The evidence before the Tribunal indicates that the Applicant is employed by Auto Sports Group trading as VW Castle Hill. The Applicant is employed as an apprentice mechanic. The Applicant is undertaking technical college studies in motor mechanics in tandem with his position of employment. The Applicant is also working part time as an Uber driver to raise extra funds to meet his expenses and the Applicant appears to be channelling those funds or some of the funds he makes from his Uber work and the expenses attached with being an Uber driver through the company accounts for Ezio.
The evidence before the Tribunal is clearly indicative of the fact that the Applicant has not obtained a substantial ownership interest in an eligible business in Australia. Furthermore that the Applicant is not utilising his skills in actively participating in a senior level in the day-to-day management of that business.
There is limited evidence before the Tribunal that the Applicant has developed business links with the international market with respect to his dash camera business apart from some purported contact with counterparts based in China. There is clear evidence that the Applicant has not created or maintained employment in Australia, as he is the only participant in what has been described by the Respondent’s representatives as an ‘embryonic’ attempt to establish a dash camera business. The Tribunal notes that the Applicant has been deriving some assistance from his wife in the development of a webpage and some assistance from a friend KevinTang with respect to the business. There is no evidence that they are paid employees of the business. The Applicant’s evidence was that they would be issued with Ezio shares down the track to repay them for their assistance.
There is no evidence of the export of Australian goods or services with respect to the Applicant’s business activities or the production of goods or the provision of services that would be otherwise imported into Australia.
There is no evidence that has been adduced with respect to the dash camera technology leading to an increase in commercial activity and competitiveness within sectors of the Australian economy.
At the hearing, the Applicant’s representative advised that they had obtained a Child visa for Master Yuchen Li, and that he was currently preparing for the Higher School Certificate in October 2024.
CONSIDERATION AND FINDINGS
The issues for determination by the Tribunal are:
in relation to Mr Yun Li:
whether there are grounds for the cancellation of Mr Li’s business visa in accordance with subsection 134(1) of the Act; and
(b)if so, whether the conditions for the bar on cancellation under subsection 134(2) of the Act are met.
in relation to Master Yuchen Li, if the Tribunal affirms the decision under review to cancel the business visa of Mr Yun Li:
(a)whether the condition required for the bar on cancellation in subsection 134(5) of the Act is met, that is, whether the cancellation of Master Yuchen Li’s business visa would result in extreme hardship.
The Tribunal is satisfied on the basis of the evidence before it that the Minister gave both Mr Yun Li and Master Yuchen Li proper notice about the Department’s intention to cancel the business visas as required by subsection 134(9) and section 135 of the Act.
Issue: Are there grounds for the cancellation of Mr Li’s business visa in accordance with subsection 134(1) of the Act?
The exercise of the discretion to cancel Mr Li’s business visa in accordance with subsection 134(1) of the Act requires that the Tribunal is able to be satisfied that he:
has not obtained a substantial ownership interest in an eligible business in Australia; or
(b)is not utilising his skills in actively participating at a senior level in the day-to-day management of that business; or
(c)does not intend to continue to
(i)hold a substantial ownership interest in; and
(ii)utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia.
The Tribunal has had regard to the definition of the term, ‘eligible business’, which is defined in subsection 134(10) of the Act. PI – Business Visa Cancellation notes the Act does not define a ‘business’ but states:
a business may be regarded as being a “commercial enterprise in the nature of a going concern, that is, activities engaged for the purpose of a profit on a continuous and repetitive basis” (Hope v Bathurst City Council (1980) 144 CLR 1).
In ascertaining whether activities constitute the carrying on of a business … [a decision-maker may] consider factors such as whether:
-    transactions are entered into on a continuous basis for the purpose of making a profit
-    the activity has a permanent character, and how long it has been established
-    customers are sought and financial records are kept
-    the activities are genuine and real.
PI – Business Visa Cancellation further lists the following evidence that a visa holder may provide to demonstrate their compliance with the ‘eligible business requirements’:
-    recent financial statements, business bank account statements, quotes, purchase orders, contracts, invoices or receipts for business transactions conducted in the last 12 months
-    recent Australian taxation returns and Business Activity Statements, demonstrating that the business is currently operating and registered for taxation purposes in Australia and
-    certificates of business registration and/or licensing and business insurance policies.
As has been discussed the Tribunal finds that there is no evidence that the Applicant made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and that he has made a genuine effort to utilise his business skills in actively participating at a senior level in the day-to-day management of that business.
The Tribunal notes that subsection 134(10) defines ‘eligible business’ to mean a business that the Minister believes “is resulting or will result in one or more of the following: the development of business links with the international market; the creation or maintenance of employment in Australia; the export of Australian goods or services; the production of goods or the provision of services that would otherwise be imported into Australia; the introduction of new or improved technology to Australia; an increase in commercial activity and competitiveness within sectors of the Australian economy”.
The evidence indicates that the Applicant set up a company Ezio Enterprise Pty Ltd in November 2019. There is no evidence that that this company meets any of the definitional requirements with respect to it being an ‘eligible business’.
Indeed, the Applicant’s evidence in a statement dated 26 April 2024 in support of his objection to the cancellation of his visa, confirms that Ezio Enterprise Pty Ltd was established on 28 November 2019. The Applicant then notes that Covid-19 started and that he could not do much to engage in the business until early 2021. The Applicant claims that he travelled to Western Australia on a business trip in around March 2021.
The Applicant then claims that on around 28 April 2021 he entered into a preliminary contract agreement with the builder Summit Homes Group in the amount of the $192,122 for the construction at Lot 72, 5 Oat Lane, Byford, Western Australia. The Applicant noted that the purchase of this land cost him $114,000. The Applicant states that this investment was to serve as a residence for the Applicant and his family.
The Applicant also states that he purchased 3,457,000 fully paid ordinary shares from Pacific Development Capital Limited priced at $432,215 on 1 October 2021 and the Applicant posits that this “large investment within WA reflects not only a financial commitment but also a desire to actively participate in the local economy and contribute to its growth. These investments are clear indicators of my intention to engage in meaningful business activities.”
In his oral evidence the Applicant retracted the written evidence of 26 April 2024 with respect to share investments and property investments in Australia, advising that those investments did not proceed.
The Applicant gave oral evidence that the purchase of property did not go ahead as the agent did not sell the property to him, and that he did not invest in the shares as he learnt prior to that investment that it was a scam. The Tribunal accordingly gives no weight to the written evidence of 26 April 2024 with respect to it being indicative of the Applicant’s investment in a business in Australia or with respect to his active management in an Australian business that he has established.
The Applicant also posits in submissions to the Tribunal that he had made efforts in establishing what he describes as the Road Memo Car Recorder Business (a dash camera business) and that he filed a trademark application with IP Australia on 5 September 2023, and had made a business plan for anticipated sales, branding marketing and shops. The Applicant claims that these efforts were clear indicators of his intention to engage in meaningful business activities.
As discussed, it appears the Applicant has not engaged in the sale of dash cameras beyond the distribution of a few units to small number of purchasers, predominantly fellow Uber drivers and a few units through his work at the Auto Sports Group. The Applicant is unable to rely on the unsigned, and indeed discredited financial statements for year ending 2023, as evidence of business operations, and the Tribunal accordingly gives no weight to these documents.
The evidence is clear that the Applicant has not started (or does not intend to start) any of the business activities that he stated he would in his correspondence with the Department at the time of applying for the visa. As discussed the Applicant did not implement the following business plan that he submitted in support of his Subclass 132 visa:
Mr Li intends to buy a substantial business which is not only capable of expansion and complimentary to his existing business interests, but which will also make a significant contribution to Western Australia’s economy. Given that he has a solid background in the wholesale/distribution industry sector in China, Mr Li wants to buy a Western Australian based business that is not only profitable, easy to operate, fully established/functioning, but also offers significant potential for expansion.
Such that he can introduce and import into Australia some of the products currently being distributed by his majority-owned Qifa Industry Co Ltd. he intends to buy a substantial business which is not only capable of expansion and complimentary to his existing business interests, but which will also make a significant contribution to Western Australia’s economy.
The Applicant stated in his Subclass 132 visa application that he wished to establish a wholesale/distribution business in Western Australia have not come to fruition. The Applicant’s stated objectives of purchasing an Australian business to act a vehicle for his business aspirations have not come to fruition.
The Applicant stated in the business plan submitted with his visa application that he was hoping to focus on international trading markets sourcing local products in Western Australia, that were natural and organic, goods prized by the Chinese market and his objectives included olive oil, cleansing products, honey and gourmet food items. This never transpired.
The evidence indicates that despite the grant of the visa on 16 August 2019 and the Applicant’s entry to Australia on 25 September 2019, prior to the outbreak of the Covid-19 pandemic, and some six months prior to the border closures of April 2020, that the Applicant had failed to purchase a wholesale/distribution business in Western Australia. Furthermore, there is no evidence that the Applicant had attempted to implement any part of his comprehensive business plan submitted to the Department in support of his visa application.
The Applicant has engaged in work as an apprentice motor mechanic in Sydney and part- time work as an Uber driver. The evidence indicates these positions are the Applicant’s primary sources of income.
There is no evidence before the Tribunal that the Applicant has filed financial statements, Australian taxation returns or Business Activity Statements that would demonstrate that Ezio Enterprises Pty Ltd is currently operating and registered for taxation purposes in Australia. The only document submitted to the Tribunal in this respect are unsigned end of financial year records for 2023. The Applicant has not provided information with respect to quantifiable financial records for customers that would show the business activity has a permanent character, and the activities are genuine and real. This is corroborated by the fact that the business website is still in developmental stage and does not contain any contact details pertaining to the Applicant or indeed with respect to the business and not one sale has arisen through any website.
For these reasons the Tribunal cannot be satisfied there is sufficient evidence to show that the Applicant has either obtained a substantial ownership interest in an eligible business in Australia or has an intention to do so, or that the Applicant is utilising his skills in actively participating at a senior level in the day-to-day management of that business or has an intention to do so.
Issue: Are the conditions for the bar on cancellation under subsection 134(2) of the Act met?
Subsection 134(2) of the Act requires that the Tribunal must not cancel the Applicant’s business visa if the Tribunal is satisfied that the Applicant has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and utilise his skills in actively participating at a senior level in the day-to-day management of that business, and that he intends to continue to make such genuine efforts.
‘Genuine effort’ is not defined in the Act but PI – Business Visa Cancellation states:
genuine effort means there should be evidence that the visa holder has exerted themselves to get into a business in Australia and be involved in the management of the business at a senior level on a day to day basis.[6]
[6] Procedural Instruction – Business Visa Cancellation reissued on 1 July 2020, part 12.2.
Further, there is an expectation the visa holder will make ‘sustained and continued efforts’ to meet visa requirements, and a visa holder’s ‘efforts overall’ should be assessed.[7]
[7] Procedural Instruction – Business Visa Cancellation reissued on 1 July 2020, part 12.2.
The Tribunal has considered the evidence in relation to the matters listed in subsection 134(3) of the Act. As set out above, the Tribunal is satisfied that Ezio Enterprise Pty Ltd was registered by the Applicant on 28 November 2019. The evidence further indicates that this was three months after the visa had been granted to the Applicant and some two months after his arrival in Australia on 25 September 2019. The Applicant’s own evidence is that it was not until 16 March 2021, that he flew to Western Australia for what he describes as a ‘business inspection’ trip that the Applicant described was for the purpose of ‘exploring the business opportunities in WA. I contacted several business partners and agents.’

The evidence indicates that the Applicant has largely established a life for himself in New South Wales and not in Western Australia.
The Tribunal also notes that despite the limitations that the Applicant claimed the Covid-19 pandemic had upon his attempts to establish a business enterprise in Australia, it was not until 2023, that the Applicant appeared to be making some attempt to establish an embryonic Road Memo car recorder business in Australia. There is no evidence that has been adduced in the review before the Tribunal corroborative of this business being an ongoing concern.
The Tribunal accordingly makes the following findings. There is no evidence before the Tribunal or that has been presented to the Tribunal with respect to:
any business proposals or plans undertaken by the Applicant that show ‘comprehensive research, feasibility and due diligence studies, and analysis of the proposed markets’;[8]
(b)any business partner that Ezio Enterprise Pty Ltd has engaged with or any involvement by Ezio Enterprise Pty Ltd in a joint venture that indicates future business activity;
(c)any business research undertaken by the Applicant such as consultations with business advisors or continuous, concerted and genuine research demonstrated by meeting notes, email enquiries and/or marketing surveys.
[8] Procedural Instruction – Business Visa Cancellation reissued on 1 July 2020, part 12.5.
The Tribunal finds that the documentation filed by the Applicant shows that at the time of applying for the Subclass 132 visa he had detailed his plans to establish a business in Western Australia to engage in the distribution of organic products, sourced in Western Australia, such as olive oil based products, beauty and facial products, fragrances, gourmet food items for distribution ‘throughout large parts of China’. The Applicant in that business plan indicated that he was looking at acquiring a Western Australian business, Perth Wholesalers, as a mechanism for embarking on this enterprise. These plans clearly did not come to fruition.
The evidence indicates that the Applicant has not obtained a substantial ownership interest in an eligible business in Australia. His claims that Ezio is such a business is not supported by the evidence.
As has been pointed out in the Respondent’s statement of facts, issues and contentions, despite his business plan that was hatched in 2017 and which led to approval of a State Nomination in Western Australia, the Applicant has not established the proposed business. Indeed, it was not until March 2021 that the Applicant travelled to Western Australia on what he has described as a business inspection trip and no business investment in that state followed.
The evidence indicates that it was only after the visa cancellation in 2022, that the Applicant engaged in the process of establishing a Road Memo car recorder business in Australia with the objective of selling dash cameras. There is a complete absence of business plans with respect to this business or evidence of a significant financial contribution to the establishment of such a business.
The Tribunal has carefully considered the Applicant’s submission in support of the setting aside of the cancellation decision.
The Tribunal has considered the Applicant’s submissions dated 26 April 2024, with respect to the cancellation of his Subclass 132 visa, and why the cancellation should be set aside. The Applicant claims that he has established a substantial ownership interest in Australia through what he describes as ‘various strategic initiatives.’
The Applicant stated that he established Ezio Enterprises Pty Ltd, which he claims was impacted by the Covid-19 pandemic but was fully operational by early 2021 as evidenced by his business-related travel to Western Australia in March 2021. There is no evidence before the Tribunal that this was the case in March 2021 or that it is currently. There is no evidence of any pro-active attempt by the Applicant to obtain a substantial ownership interest in an eligible business in Australia from the time he entered Australia in September 2019, from the time of his claimed business trip to Western Australia in March 2021 or indeed any time since.
As discussed the Applicant’s claims in his 26 April 2024 submission that he invested in property development by contracting the Summit Homes Group to construct a residential property for he and his family in Byford Western Australia, and that he financially invested in the Australian market by acquiring 3,457,000 shares in Pacific Development Capital Limited, were retracted at hearing because they never occurred.
The Applicant also stated in his submission of 26 April 2024 that his company Ezio Enterprise Pty Ltd had successfully obtained approval for a trade-mark application from IP Australia and received a certificate of suitability from SAA Approvals. The Applicant claims this is indicative of the efforts that he has made to utilise his skills and actively participating in a senior level in the day-to-day management of the business. The approval of a trademark, in the view of the Tribunal, does not overcome any of the other significant legislative requirements that the Applicant has failed to meet.
The Applicant also attached an unsigned financial statement for the financial year 2023 showing that the total trading income for Ezio Enterprise Pty Ltd was $228,798. The Tribunal finds on the basis of the evidence before it that none of these factors are indicative of the Applicant’s obtainment of a substantial ownership in an eligible business in Australia or evidence of his skills in actively participating at a senior level in the day-to-day management of that business. The trading income is not based on the Applicant’s evidence reflective of trade but merely the injection of his own funds and those earned as an Uber driver through the company accounts.
Despite the Applicant registering Ezio Enterprises Pty Ltd in November 2019, the Applicant in the intervening period has engaged in work as an apprentice motor mechanic and is studying part time with respect to the acquisition of this skill. The Applicant is also working as an Uber driver part time and these endeavours are his primary sources of income.
The Tribunal notes that since the grant of the visa in August 2019, the Applicant had spent most of that period in Australia and the Tribunal finds that during that substantial period onshore, he was not precluded from implementing his business plans and in obtaining a substantial ownership interest in an eligible business in Australia.
There is no objective evidence that the global pandemic prevented the Applicant from establishing an eligible business in Australia from September 2019, particularly given the fact that the Applicant was actively pursuing business opportunities in Western Australia from as early as April 2017 along with the fact that Western Australia was the state least impacted by the pandemic in terms of lockdown.
The Tribunal finds that it was not until 2023, some four years after the grant of the visa that the Applicant made some attempt to establish an import and sale business of car recorders in Australia and this clearly coincided with the Applicant being served with a NOICC.
The Tribunal notes that this marks an extensive divergence from his 2017 business plan to establish a business importing organic products from Western Australia to the Chinese market.
Furthermore, there is no evidence before the Tribunal which establishes that the Covid-19 pandemic prevented the Applicant from undertaking detailed research and exploring business opportunities, contacts and sources of supplies; developing business relationships or options for joint ventures; or registering a business and opening a bank account etc. There was nothing to prevent the Applicant from conducting business meetings via videoconferencing facilities during the Covid-19 pandemic.
When these factors are cumulatively considered, the Tribunal places limited weight on the Applicant’s submissions that the Covid-19 pandemic prevented him from obtaining a substantial ownership interest in an eligible business in Australia and utilising his skills in actively participating at a senior level in the day-to-day management of that business.
The Applicant’s statement of 26 April 2024 posits that the Applicant made efforts to establish his car recorder business in Australia and this involved making a business plan and filing a trademark application with IP Australia on 5 September 2023.
The business plan provided on 13 December 2023 indicates that the Applicant expected that in the first year of sales of his car camera products that sales would occur in several major Australian cities. As has been submitted by the Respondent in their statement of facts, issues and contentions, there has been no evidence of goods being sold or retailed to the general public or of the import/export of goods occurring. The respondent also points to gross inconsistencies in financial reporting for the business in 2023 and the paucity of evidence with respect to sales that have been generated resulting in the acquisition of profits.
The Tribunal finds that this evidence does not satisfy it that Ezio could be described as an eligible business that is resulting or will result in the development of business links with the international market; the creation or maintenance of employment in Australia; the export of Australian goods or services; the production of goods or the provision of services that would otherwise be imported into Australia; the introduction of new or improved technology to Australia or increasing commercial activity and competitiveness within sectors of the Australian economy.
For the reasons set out above, the Tribunal is not satisfied the conditions for the bar on cancellation under subsection 134(2) of the Act are met.
Issue: Would the cancellation of Mr Li’s business visa result in extreme hardship?
Subsection 134(5) of the Act states that the Applicant’s business visa must not be cancelled if the cancellation of that visa would result in ‘extreme hardship’ to him.
‘Extreme hardship’ is not defined in the Act; however, PI – Business Visa Cancellation states:
it means the visa holder would face the utmost or highest degree of hardship if their visa were to be cancelled. The relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient to constitute extreme hardship.[9]
[emphasis added]
[9] Procedural Instruction – Business Visa Cancellation reissued on 1 July 2020, part 18.2.
The Tribunal has also had regard to the Federal Court of Australia decision of Man Ki Kim v Minister for Immigration and Ethnic Affairs (Kim) in which Foster J stated:
it is, in my opinion, important to approach the phrase “extreme hardship” in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case. “Hardship” is in itself a relative term. What may be a “hardship” to a sensitive person, or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more protected situation. Similarly, the word “extreme” must be evaluated against the facts of the particular case. Such an evaluation cannot, consistently with the duties imposed upon the decision-maker by the Act, be approached in a dismissive or perfunctory fashion. A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken.[10]
[10] (1995) 37 ALD 481 at [25].
The Tribunal accepts the Applicant’s submissions that his son Yuchen is studying for the Higher School Certificate in October 2024. However, the Tribunal finds no objective and supporting evidence that the Applicant would experience extreme hardship as contemplated by the Act if the business visa is cancelled. The Applicant applied for and was granted the Business Investment visa which comes with a set of expectations. He has clearly failed to meet them.
The Applicant is a Chinese citizen who has run a business in Shanghai and there is no evidence that the Applicant would not be able return to China and re-establish himself in his home country.
There is no evidence that the cancellation of the business visa would prevent the secondary visa applicant from undertaking further study in Australia. The cancellation of the business visa does not prevent the secondary visa applicant from applying for other types of visas if he wishes to continue his study or undertake work in Australia. The evidence at review hearing provided by the Applicant’s representative was that Yuchen has been granted a Child visa and there is no evidence that has been provided to the Tribunal with respect to the grant of that visa or its operation.
Based on the evidence, the Tribunal cannot be satisfied that the secondary visa Applicant would experience extreme hardship and consequently, the prohibition in subsection 134(5) of the Act does not apply.
DECISION
The decisions under review made by the Respondent on 24 October 2022 – to cancel the Business Talent (Permanent) (Class EA) (subclass 132) visas of Mr Yun Li and Mr Yuchen Li pursuant to section 134 of the Migration Act 1958 (Cth) – are affirmed.

I certify that the preceding 164 (one-hundred-and-sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Cipolla.

.......................[SGD]................................
Associate
Dated: 21 August 2024

Date(s) of hearing: 5 August 2024

Date final submissions received: 9 August 2024

Solicitors for the Applicant: Ms T Liu, Alton Legal

Solicitors for the Respondent: Mr R Terrell, Australian Government Solicitor

[2024] AATA 2953

21 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date(s) of hearing:	5 August 2024
Date final submissions received:	9 August 2024
Solicitors for the Applicant:	Ms T Liu, Alton Legal
Solicitors for the Respondent:	Mr R Terrell, Australian Government Solicitor