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

This matter concerned the review of decisions made by the Minister for Immigration, Citizenship and Multicultural Affairs to cancel the Business Talent (Permanent) (Class EA) (subclass 132) visas of Mr Yun Li and his son, Mr Yuchen Li. The dispute centred on whether Mr Yun Li had met the conditions of his visa, specifically regarding his genuine effort to obtain a substantial ownership interest in an eligible Australian business and to actively participate in its management, and whether he intended to continue these efforts. A secondary issue arose concerning whether the cancellation of Mr Yuchen Li's visa would result in extreme hardship. The review was conducted by the Administrative Appeals Tribunal.

The Tribunal was required to determine if there were grounds for cancelling Mr Yun Li's visa under subsection 134(1) of the Migration Act 1958 (Cth). This involved assessing whether he had failed to obtain a substantial ownership interest in an eligible business in Australia, was not utilising his skills in senior management of such a business, or did not intend to continue to do so. If grounds for cancellation were found, the Tribunal then had to consider whether the prohibition on cancellation under subsection 134(2) applied. For Mr Yuchen Li, the Tribunal had to determine if the cancellation of his visa would result in extreme hardship, as contemplated by subsection 134(5) of the Act, which would prevent its cancellation.

The Tribunal found that Mr Yun Li had failed to provide sufficient evidence to demonstrate he had met the requirements of his visa. Despite his initial intention to invest $1.5 million and acquire a substantial business in Western Australia, the evidence presented regarding his business activities in Australia was "strikingly deficient," with no documentation supporting the sale of even a single unit of the dash cameras he proposed to sell. The Tribunal applied the principles from *Man Ki Kim v Minister for Immigration and Ethnic Affairs*, which require a broad approach to assessing "extreme hardship," evaluating it against the specific facts of the case. However, despite acknowledging that Mr Yuchen Li was studying for his Higher School Certificate, the Tribunal was not satisfied that his father's visa cancellation would lead to extreme hardship, nor that Mr Yun Li had met the business ownership and management obligations.

Consequently, the Tribunal affirmed the decisions 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. The Tribunal concluded that the prohibition in subsection 134(5) of the Act did not apply as extreme hardship had not been established.