Zheng 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 Xiuming Zheng and Mr Jiangfeng Zheng. The review was conducted by Dr L Bygrave, Member. The core of the dispute revolved around whether Mr Xiuming Zheng had met the obligations associated with his visa, specifically concerning the acquisition of substantial ownership in an eligible Australian business and active participation in its management, and whether the cancellation of Mr Jiangfeng Zheng's visa would result in extreme hardship.

The Member was required to determine if there were grounds for cancelling Mr Xiuming Zheng's visa under subsection 134(1) of the *Migration Act 1958* (Cth), which necessitates satisfaction that the visa holder has not obtained a substantial ownership interest in an eligible business, is not utilising their skills in senior management, or does not intend to continue these activities. Additionally, the Member had to consider whether the conditions for a bar on cancellation under subsection 134(2) were met. For Mr Jiangfeng Zheng, the critical issue was whether the cancellation of his visa would result in extreme hardship, as contemplated by subsection 134(5) of the Act.

In reaching the decision, the Member considered the evidence presented, including Mr Xiuming Zheng's business proposal and a State Nomination Agreement with the Government of Western Australia, which outlined commitments regarding business establishment, asset value, and employment creation. The Member found that the evidence did not satisfy the requirements for Mr Xiuming Zheng to have obtained a substantial ownership interest or to have actively participated in the management of an eligible business in Australia. Regarding Mr Jiangfeng Zheng, the Member applied the principles from *Kim v Minister for Immigration and Ethnic Affairs*, emphasizing a broad approach to "extreme hardship" evaluated in the context of the specific facts. The Member concluded that, based on the evidence that Mr Jiangfeng Zheng could reside with his father and receive financial support in China, and considering his language proficiency and potential for employment there, he would not experience extreme hardship.

Consequently, the Member affirmed the decisions under review to cancel the Business Talent (Permanent) (Class EA) (subclass 132) visas of both Mr Xiuming Zheng and Mr Jiangfeng Zheng. The prohibition under subsection 134(5) of the Act was found not to apply to Mr Jiangfeng Zheng due to the absence of demonstrated extreme hardship.