Jiang v Minister for Home Affairs [2019] FCA 91

Jiang v Minister for Home Affairs [2019] FCA 91

The Tribunal did not misconstrue reg 1.11(1)(b) or (d) of the Migration Regulations 1994 (Cth); it was entitled to conclude there was insufficient evidence of direct and continuous management or that the business was a qualifying business, and its findings were open on the evidence. There was no jurisdictional error by the Tribunal or legal error by the Federal Circuit Court.

Parties
First Appellant: Weiming Jiang; Second Appellant: Dong Chu; Third Appellant: Jiaqi Chu; Fourth Appellant: Jiayu Chu; First Respondent: Minister for Home Affairs; Second Respondent: Administrative Appeals Tribunal
Jurisdiction
Australia
Judgment Date
11 February 2019
Procedural Posture
Appeal / Final Judgment on Appeal From Federal Circuit Court
Outcome
Appeal dismissed
Legal Topics
Visa Cancellation and Refusal, Judicial Review, Jurisdictional Error, Business Skills Visa Requirements
Migration Law Administrative Law Visa Cancellation and Refusal Judicial Review Jurisdictional Error Business Skills Visa Requirements

Case Brief

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Parties

Weiming Jiang

First Appellant

Dong Chu

Second Appellant

Jiaqi Chu

Third Appellant

Jiayu Chu

Fourth Appellant

Minister for Home Affairs

First Respondent

Administrative Appeals Tribunal

Second Respondent

Procedural Posture

Appeal / Final Judgment on Appeal From Federal Circuit Court

Legal Issues

  1. 1 Whether the Tribunal misconstrued the meaning of 'main business' under reg 1.11(1) of the Migration Regulations 1994 (Cth)
  2. 2 Whether non-sales activity should have been considered as business activity under reg 1.11(1)(b) and (d)
  3. 3 Whether the absence of sales is determinative for carrying on a business for visa purposes

Ratio Decidendi

The Tribunal did not misconstrue reg 1.11(1)(b) or (d) of the Migration Regulations 1994 (Cth); it was entitled to conclude there was insufficient evidence of direct and continuous management or that the business was a qualifying business, and its findings were open on the evidence. There was no jurisdictional error by the Tribunal or legal error by the Federal Circuit Court.

Court Disposition

Appeal dismissed

Orders

  • The appeal be dismissed.
  • The appellants pay the first respondent's costs of the appeal.