Zhang (Migration) - [2023] AATA 2750

Zhang (Migration) [2023] AATA 2750 (10 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Hui Zhang
Mrs Fang Qi
Mr Pei Zhang
Miss Qixin Zhang
CASE NUMBER:  2015648
HOME AFFAIRS REFERENCE(S): BCC2016/2490288 BCC2017/3556513
MEMBER:Peter Ranson
DATE:10 August 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Residence) (Class DF) visas.
Statement made on 10 August 2023 at 3:46pm

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) visa – ownership interest in the main business – net business and personal assets over $250,000 – business was actively operating – day-to-day management of the business – qualifying business – Business Activity Statements included in the application – property assets – time of decision criterion – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 134
Migration Regulations 1994, Schedule 2, cls 892.211, 892.212, 892.213, 892.214, 892.221, 892.321; rr 1.03, 1.11

CASES

STATEMENT OF DECISION AND REASONS

Contents

APPLICATION FOR REVIEW

CONSIDERATION OF CLAIMS AND EVIDENCE

A note about policy

Why did the delegate refuse the application?

Ownership interest in main business

Does Henry have an ownership interest in the auto parts business at all relevant times?
Was the auto parts business actively operating at all relevant times?
Does the auto parts business satisfy the ‘main business’ definition?

Australian Business Number and Business Activity Statements

Business activities

Requirements relating to assets and employment

Net business and personal assets
UDA Motion Parts Pty Ltd
Cash assets
Property assets
Investments

CONCLUSION

DECISION

ATTACHMENT - LEGISLATION

Migration Regulations 1994

1.03 Definitions
1.11 Main business
1.11A Ownership for the purposes of certain Parts of Schedule 2

Migration Act 1958

134 Cancellation of business visas

APPLICATION FOR REVIEW

Mr Hui Zhang, known as Henry, and his family are from China. They came to Australia in October 2012. Henry has an auto parts business there and he set up a similar business operated by his company UDA Motion Parts Pty Ltd when they came to Australia.
Henry and his family are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (Cth). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 2750
Decision Date: 10 August 2023

CaseChat Overview and Summary

This matter concerned an appeal by Mr Zhang against a decision to refuse him a Business Skills (Residence) (Class DF) visa, specifically a Subclass 892 (State/Territory Business Owner) visa. The primary dispute revolved around whether Mr Zhang met the financial and operational requirements for the visa, particularly concerning his ownership interest in a business and his net business and personal assets. The decision was made by the Tribunal.

The Tribunal was required to determine several legal issues. These included whether Mr Zhang had an ownership interest in an actively operating main business in Australia for the requisite period before his visa application and at the time of the decision, whether the application included the necessary Business Activity Statements, and crucially, whether his net business and personal assets met the threshold of $250,000 for at least 12 months prior to the application and at the time of the decision. The Tribunal also needed to consider whether the business was qualifying and whether Mr Zhang was involved in its day-to-day management.

The Tribunal affirmed the delegate's decision, finding that Mr Zhang did not satisfy all the necessary criteria for the visa. While the Tribunal acknowledged previous findings regarding net business assets, the central issue for this review was the satisfaction of clause 892.212(b), which requires net business and personal assets of at least $250,000. The Tribunal applied the principles that it will ordinarily apply policy unless it is unlawful or leads to an unjust decision, but it must not apply policy inflexibly or in a way that contradicts the legislation. The Tribunal found that Mr Zhang's net business and personal assets did not meet the required threshold for the specified period.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has decided that the decision under review should be affirmed. Where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[1][1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J). To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the policy is consistent with the requirements as set out in the legislation as it would be an error of law for the Tribunal to state it must (emphasis added) follow what policy says concerning the scope or meaning of a provision in the Act or Regulations. UDA Motion Parts Pty Ltd operates an auto parts business. UDA also traded for a short time under the business name ‘UDA Fresh’ however that business never eventuated and does not form part of this decision. Henry has held a 100% ownership interest in UDA with his wife since 03 October 2012. The department considered and was not satisfied cl.892.212 was met. That criterion has three parts to it. The first part is about employment, and Henry does not seek to satisfy that sub-clause. That leaves net business assets of $75,000, and net business and personal assets of $250,000, all of which must have been held for at least 12 months before the application was made and lawfully acquired. This Tribunal has previously found Henry satisfied cl.892.212(c) concerning net business assets, so only cl.892.212(b) will be tested in this review. The delegate concluded Henry’s net business and personal assets were less than $250,000 as required. As one of the necessary criteria for the visa was not met, the delegate refused to grant the visa. The issue in this case is whether the net business and personal assets were at least $250,000 for the 12 months from 26 July 2015 to 25 July 2016 and at the time of this decision. Given this application was lodged seven years ago and has once before been considered and remitted by this Tribunal, this review will first test cl.892.211, including whether the business activity statements were included in the application, then cl.892.212(b) then cl.892.213 then cl.892.214. Clause 892.221 will also be tested. Clause 892.211(1) requires the applicant had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made and continued to have that interest at the time the visa application was made. The applicant must continue to satisfy this requirement at the time of this decision.[2] No more than two businesses can be nominated for this purpose.[3] One or both businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion.[4][2] cl 892.221(a).[3] reg 1.11(2).[4] Yang v Minister for Immigration and Border Protection [2014] FCCA 1576.

Ratio Decidendi

Legal Principle Established

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