Zhang (Migration) - [2022] AATA 1901

Zhang (Migration) [2022] AATA 1901 (28 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Qiuyue Zhang
Miss Amber Xinhui Lang
Ms Yunni Dai
REPRESENTATIVE:  Ms Karen Wong
CASE NUMBER:  1909672
HOME AFFAIRS REFERENCE(S): BCC2017/1897191 BCC2017/2248551 BCC2017/2248568 BCC2017/2248583 BCC2018/5832173 BCC2019/2748750
MEMBER:P Ranson
DATE:28 January 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Subclass 892 Business Skills (Residence) (Class DF) visas.

Statement made on 28 January 2022 at 12:05pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – ownership interest in the main business – indicators of ‘actively operating’ – health deterioration – business paused for 18 months – ‘continues to satisfy’ – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.11, 1.11A; Schedule 2, cls 892.211, 892.214, 892.221

CASES
1504781 (Migration) [2016] AATA 3125
Liang v MIAC (2009) 175 FCR 184
Yang v MIBP [2014] FCCA 1576

STATEMENT OF DECISION AND REASONS

Table of Contents

APPLICATION FOR REVIEW

CONSIDERATION OF CLAIMS AND EVIDENCE

What evidence was considered by the Tribunal?

Why did the delegate refuse the application?

What does this decision deal with?

Ownership interest in main business

Does the applicant have an ownership interest in each business relied on at all relevant times?
Was each business relied on actively operating at all relevant times?

The quiet period (December 2017 to October 2019)

What does ‘continues to satisfy’ mean?

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 April 2019 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) subclass 892 visas under s.65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 26 May 2017. Certain criteria must be satisfied during the two-year period ending immediately before the date of application, that is, 26 May 2015 to 25 May 2017 (the Application Period).
At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor). The applicants in this case 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 (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.
The delegate in this case refused to grant the visas on the basis the first named visa applicant, Ms Qiuyue Zhang (the Applicant) did not satisfy the requirements of cl.892.221 of Schedule 2 to the…

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: [2022] AATA 1901
Decision Date: 28 January 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a migration matter involving an applicant seeking review of a decision concerning a Business Skills (Residence) (Class DF) visa, specifically the Subclass 892 (State/Territory Sponsored Business Owner) visa. The core dispute revolved around whether the applicant's nominated main business had been actively operating in Australia throughout the relevant period, as required by the visa criteria.

The primary legal issue before the Tribunal was to determine whether the applicant continued to satisfy clause 892.221(a) of the Migration Regulations 1994, which in turn required an assessment of whether the nominated main business was actively operating in Australia from the time of application until the date of the Tribunal's decision. This involved examining the elements of clause 892.211(1), specifically the definition of the main business, the applicant's ownership interest, and the business's active operation in Australia.

The Tribunal noted that the applicant experienced significant health issues from 2016, leading to a pause in business operations from December 2017 until October 2019. While the applicant contended that she maintained control and that another individual managed day-to-day activities during this period, the Tribunal focused on the requirement for the business to be actively operating. Although the Tribunal made no definitive finding on the applicant's satisfaction of clause 892.211(1) as a whole, it gave the applicant the benefit of the doubt for the purposes of this decision, acknowledging the possibility that the criteria might have been met. Ultimately, the Tribunal concluded that the decision under review should be affirmed.

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 concluded the decision under review should be affirmed. The Tribunal had before it the following evidence: The Tribunal has considered all the material supplied to it and the evidence produced by the Applicant and the witnesses. Not all the evidence is referred to at length in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes impractical or unnecessary to canvass all aspects, arguments, and history of a case in the decision record. This decision record relies on departmental policy where applicable. The Tribunal is not bound by policy but must take it into account and will usually follow it unless there are cogent reasons not to do so.[1][1] Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179 (21 November 1979). The Applicant experienced significant health problems starting in 2016, and from December 2017 she paused the business operations to enable her to recuperate until October 2019 when, feeling well enough to do so, she returned to China to restart the business. The Applicant argues she maintained control of the management of the business and Ms Dai attended to the day-to-day activities during the pause period from December 2017 to October 2019. The issue in this case then is whether the nominated main business was actively operating from the time of application until the time of this decision. In accordance with the President’s Direction,[2] the Tribunal will only address those elements of the criteria on which the delegate made an adverse finding, being the satisfaction of cl.892.221(a).[3] Ordinarily that would mean the Tribunal must also consider cl.892.211 and cl.892.214 as they are referred to in cl.892.221(a).[2] Presidents Direction for Conducting Migration and Refugee Reviews dated 1 August 2018.[3] The delegate’s decision only tests cl.892.221(a) and in respect of continuing to satisfy cl.892.211(1). As the issue in this case is whether the business continued to satisfy cl.892.211(1), that is, whether the business was actively operating throughout the period from time of application to time of decision, this decision will only test cl.892.221(a) in respect of cl.892.211(1). Whilst the Tribunal makes no finding about the Applicant meeting the requirements of cl.892.211(1), as that is not tested in this decision, the Tribunal observes from the contents of the Department File the possibility it may make such a finding. For this decision, the Applicant is given the benefit of the doubt about meeting the requirements of cl.892.211(1) for the purpose of this decision. That said, it is important to understand the elements of cl.892.211(1) because it is those elements, apart from those of cl.892.211(2) and cl.892.214, which the applicant must continue to satisfy to meet cl.892.221(a). There are three elements to cl.892.211(1), which are considered in this decision:·Main business definition met,·Ownership interest in the main business (as distinct from the entity which operates it), and·Actively operating in Australia.

Ratio Decidendi

Legal Principle Established

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