Zhang (Migration) - [2019] AATA 6152

Zhang (Migration) [2019] AATA 6152 (21 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Huilan Zhang
Mr Youzhong Jiang
Master Jianxin Jiang
Miss Xiuying Jiang
CASE NUMBER:  1716895
DIBP REFERENCE(S):  BCC2015/2765242 BCC2015/2765530 BCC2015/2765531 BCC2017/3098760
MEMBER:Keith Kendall
DATE:21 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications in respect of the first, second and third named applicants for Business Skills (Residence) (Class DF) visas, with the direction that the first named visa applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:
·cl.892.211(1) of Schedule 2 to the Regulations
The Tribunal has no jurisdiction to consider the application for the fourth named applicant.

Statement made on 21 October 2019 at 10:22am

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 July 2017 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) Subclass 892 visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 22 September 2015. 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 that the first named visa applicant (‘the applicant’) did not satisfy the requirements of cl.892.211(1) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had maintained direct and continuous involvement in management of the business and, therefore, the business did not qualify as a ‘main business’ for the purposes of cl.892.211(1).
The applicant appeared before the Tribunal on 9 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Miss Xiuying Jiang (referred to in documents as Coco), the applicant’s daughter. The applicant prior to the hearing also provided details of an additional witness, Chunqing Ruan, who was identified as a friend of the applicant who had assisted the applicant in finding a suitable business in Melbourne in which to invest. However, after taking evidence from the applicant and Miss Jiang, the applicant’s authorised representative indicated that this additional witness would not provide any further evidence other than to corroborate evidence that had already been received. In light of this acknowledgement, the authorised representative agreed that it was unnecessary to take evidence from this witness. This matter was put to the applicant directly, who agreed that it was unnecessary to take evidence from this witness in light of the evidence that had already…

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: [2019] AATA 6152
Decision Date: 21 October 2019

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Zhang, against a decision of the Administrative Appeals Tribunal concerning a Subclass 892 (State/Territory Business Owner) visa. The central dispute revolved around whether the applicant had maintained a direct and continuous involvement in the management of their business, Melbourne Kingdom Group Pty Ltd, trading as Zen Charcoal BBQ, such that it qualified as a 'main business' for the purposes of the Migration Regulations 1994.

The Administrative Appeals Tribunal was required to determine whether the applicant had an ownership interest in the business for at least two years prior to the visa application and at the time of the application, and whether the business was actively operating and met the definition of a 'main business' during that period. Specifically, the Tribunal needed to assess the applicant's direct and continuous involvement in the management of Zen Charcoal BBQ.

The Tribunal found that the applicant was the sole director and shareholder of Melbourne Kingdom Group Pty Ltd, the company operating Zen Charcoal BBQ, as indicated by ASIC records. This satisfied the ownership interest criterion. However, the Tribunal noted that the applicant's lack of Korean language skills and the nature of operating an "authentically Korean restaurant" raised questions about their direct involvement in the day-to-day management. The Tribunal considered whether the applicant's awareness of staff identities in a small business and their involvement in employment and lease agreements demonstrated sufficient direct management. Ultimately, the Tribunal concluded that the matter should be remitted to the Minister for further consideration.

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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant maintained a direct and continuous involvement in the management of the business, such that that business qualifies as a ‘main business’ for the purposes of cl.892.211(1) of the Regulations.Ownership interest in main business Clause 892.211(1) requires that 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. No more than two businesses can be nominated for this purpose (r.1.11(2)) and only one or both of the businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion: Yang v Minister for Immigration and Border Protection [2014] FCCA 1576. The business relied on by the applicant to satisfy these requirements is Melbourne Kingdom Group Pty Ltd (ACN 154 673 604) (‘the Company’) trading as Zen Charcoal BBQ. Accordingly, the Tribunal must consider the nature of the applicant’s interest in this business, whether the business was actively operating and whether it met the definition of ‘main business’ in the period commencing two years immediately prior to the date of application and as at the date of application. Does the applicant have an ownership interest in each business relied on at all relevant times? An ‘ownership interest’, in relation to a business, means an interest in the business as:a.a shareholder in a company that carries on the business, orb.a partner in a partnership that carries on the business, orc.the sole proprietor of the business;including such an interest held indirectly through one or more interposed companies, partnerships or trusts: r.1.03 of the Regulations and s.134(10) of the Act. Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of r.1.11A of the Regulations, set out in the attachment to this decision: r.1.11A(1). In order to meet cl.892.211(1) the Tribunal must be satisfied that the applicant had an interest of this kind in the relevant business or businesses both at the time of making that application and for the two years immediately before. As noted above, the business in question (Zen Charcoal BBQ) is operated through the Company. Therefore, this criterion is satisfied if the applicant has maintained an ownership interest in the Company at all relevant times. Records obtained from the database maintained by the Australian Securities and Investments Commission (ASIC) indicate that the Company was incorporated on 7 December 2011. These records currently list the applicant as the sole director and shareholder of the Company. These records further indicate that there have been no other directors or shareholders during the Company’s history.

Decision

Reasons for decision

In light of the above findings, the appropriate course is to remit the applications for the second and third named applicants to the Minister with the direction set out below.DECISION

Ratio Decidendi

Legal Principle Established

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