Zhang (Migration) - [2024] AATA 2400

Zhang (Migration) [2024] AATA 2400 (26 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Xiaomei Zhang
Mr Wei Chen
Mr Haozong Chen
Miss Shijia Chen
REPRESENTATIVE:  Mr Xiaoxiao Wang (MARN: 0848719)
CASE NUMBER:  2201066
HOME AFFAIRS REFERENCE(S):          BCC2020/265888

MEMBER:Robyn Anderson
DATE:26 June 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 888 visa:
·cl 888.222 of Schedule 2 to the Regulations.

The Tribunal has no jurisdiction in relation to the second named applicant.

Statement made on 28 June 2024 at 4.45 pm.

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 January 2022 to refuse to grant the visa applicants a Business Skills (Permanent) Subclass 888 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 2 February 2020. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not meet the requirements under cl 888.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). This requires that she had an ownership interest in at least one actively operating main business in Australia during the two years immediately before the application was made and that the same ownership interest in the same actively operating main business/es continues at the time of decision.
While satisfied that the criteria under cl 888.222(1)(a) was met in respect of the time of application criteria, the delegate was not satisfied that the applicant continued to have an ownership interest in the nominated main business because there were essentially no sales recorded in the business activity statements for the period from 1 January 2021 to 30 September 2021, and a submission from the applicant on 2 January 2022, several weeks prior to the decision of 27 January 2022, confirmed that no wine had been exported since early 2021. Furthermore, no evidence was provided in relation to negotiations taking place in regard to other export products.
The applicants applied to the Tribunal and the matter was constituted to a Tribunal Member on 10 April 2024. On 22 April 2024, the Tribunal wrote to the applicants to invite them to attend an in-person hearing on 30 May 2024 and to provide any further documents they intended to rely upon by 23 May 2024.
In response, the Tribunal received submissions and evidence from the visa applicants on 22 May 2024. The applicants appeared before the Tribunal on 30 May 2024 and the first and second named applicants gave sworn oral evidence.
The applicants were represented in relation to the review by their registered migration agent.
On 30 May 2024, the Tribunal deferred making a decision in this matter to allow additional time for the applicants to provide further evidence in support of the nominated business in which the applicant has an ownership interest…

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: [2024] AATA 2400
Decision Date: 26 June 2024

CaseChat Overview and Summary

This matter concerned an appeal by the applicants against a decision concerning their Subclass 888 (Business Innovation) visa applications. The applicants had previously been granted a Subclass 188 Provisional visa in December 2016. While the first applicant and her husband operated a glass business in China, they established Wei Hao Pty Ltd (the Business) in Australia in July 2017, with the stated primary activity being the export of Australian wine and other products to China. The appeal was heard by Robyn Anderson, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the Business met the definition of a "main business" as defined in regulation 1.11(1) of the Migration Regulations 1994, specifically in relation to clause 888.222 of Schedule 2. This clause requires an applicant to have had an ownership interest in an actively operating main business in Australia for the two years immediately preceding the application, and for this criterion to continue to be met at the time of the decision. The Tribunal was required to determine if the Business qualified as a "main business" and if the applicants had satisfied the ownership and active involvement requirements.

The Tribunal found that the first applicant had a clear ownership interest in the Business, being its sole shareholder and director since its incorporation. However, the Tribunal noted that the Business had not exported wine during the relevant two-year period due to anti-dumping duties imposed by China on Australian wine. While the applicant argued that this was due to external factors and that she was actively seeking to diversify export opportunities and had a limited customer base, the Tribunal considered the lack of wine exports as a significant factor in assessing whether the Business was "actively operating" in its nominated main business activity. The Tribunal also considered the applicant's direct and continuous involvement in the management of the Business.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration by the Department in respect of the first, third, and fourth named applicants. The Tribunal directed that the first named applicant met the criteria under clause 888.222 of Schedule 2 to the Regulations. The applications of the third and fourth applicants were to be determined by reference to the outcome of the first applicant's application on remittal, as they applied as family unit members. The Tribunal stated it had no jurisdiction in relation to the second named applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in respect of the first, third and fourth named applicants. CONSIDERATION OF CLAIMS AND EVIDENCE According to Departmental records, the applicants were granted a Subclass 188 Provisional visa on 5 December 2016. The applicant told the Tribunal that at that time she and her husband were operating a glass business in China through an incorporated entity. They considered that Australia would provide a better environment for their children’s education. The applicants then visited Australia in January 2017 to explore the business environment. While the glass business continues to operate in China under the direction of her husband, the applicant and the children returned to Australia in July 2017, at which time Wei Hao Pty Ltd (the Business) was registered. The Subclass 888 application records the major business activity of the Business as ‘Export Australian wine and other products to China’. The issue in the present case is in relation to cl 888.222 of Schedule 2 to the Regulations. Clause 888.222(1)(a) requires the applicant to have had an ownership interest in at least one actively operating main business in Australia during the two years immediately before the application was made. Clause 888.222(1)(b) requires that the criterion in cl 888.222(1)(a) continues to be met at the time of decision. In this case cl 888.222(2) is not applicable. As the application was lodged on 2 February 2020, it is undisputed that the relevant two‑year period is 2 February 2018 to 1 February 2020 (the relevant period). It is also undisputed that the nominated main business is the Business. The Tribunal then turned its mind to whether the Business met the definition of ‘main business’. The meaning of ‘main business’ is set out in reg 1.11(1) of the Regulations. The four criteria are not mutually exclusive and must all be met before a business can be considered as a ‘main business’. The first of the criteria under reg 1.11(1)(a) requires that the applicant has or has had an ownership interest in the Business. Regulation 1.03 provides that ownership interest has the meaning given to it in s 134(10) of the Act. The definition of ownership interest in relation to a business, as relevantly defined in s 134(10) of the Act, means, amongst other things, ‘a shareholder in the company that carries on the business’. Current and historical extracts from ASIC confirm that the first named applicant has been the director, secretary and sole shareholder of the Business since incorporation on 7 July 2017. Therefore, the Tribunal is satisfied that the applicant had an ownership interest in the Business throughout the relevant period and continues to have an ownership interest in the Business. As such, the first criterion in reg 1.11(1)(a) is met during the relevant period and also continues to the present time. Secondly, the applicant must maintain or have maintained direct and continuous involvement in the management of the Business from day-to-day and in making decisions affecting the overall direction and performance of the Business.

Decision

Reasons for decision

The Tribunal finds that as the third and fourth named applicants applied on the basis of being family unit members of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.DECISION The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 888 visa:·cl 888.222 of Schedule 2 to the Regulations.The Tribunal has no jurisdiction in relation to the second named applicant.Robyn AndersonMember

Ratio Decidendi

Legal Principle Established

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