Federal Court of Australia

Wang v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 1230

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the costs of the first respondent, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GOODMAN J:

A.    Introduction

1    These reasons for judgment address an appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) by which the primary judge dismissed an application for judicial review of a decision of the second respondent Tribunal dismissing an application for review of a decision of a delegate of the first respondent Minister to refuse to grant a Business Skills (Residence) (Class DF) Business Owner (Subclass 890) visa to the appellants.

2    The primary judge’s reasons for dismissing the application are set out in Wang v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 805 (primary judgment, or J).

3    For the reasons set out below, the appeal must be dismissed.

B.    Background

4    On 17 September 2015, the first appellant lodged with the Minister an application for the visa.

5    A necessary condition for the grant of the visa was the satisfaction of all criteria prescribed for that kind of visa: s 65 of the Migration Act 1958 (Cth). The prescribed criteria included cl 890 of Schedule 2 to the Migration Regulations 1994 (Cth) which provided, in so far as is presently relevant:

Subclass 890 – Business Owner

…

890.21—Criteria to be satisfied at time of application

890.211

(1)    The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

…

890.22—Criteria to be satisfied at time of decision

890.221     The applicant continues to satisfy the criteria in clauses 890.211, 890.215 and 890.216.

(bold emphasis in original)

6    The expression “main business” in cl 890.211 is the subject of reg 1.11 of the Regulations, which provided in so far as is presently relevant:

1.11     Main business

(1)    For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:

…

(b)    the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and

…

(bold emphasis in original)

7    In the application for the visa, the first appellant was identified as a person who was, and had since 2011 been, a director of Minz Investment (Aust) Pty Ltd, a company trading as Minz Coach and Tour (Minz). Minz was identified as the “main business”.

8    On 11 November 2016, a delegate of the Minister refused to grant the visa and on 18 November 2016, the appellants applied to the Tribunal for review of that decision.

9    On 7 November 2019, the Tribunal affirmed the delegate’s decision: Wang (Migration) [2019] AATA 6704 (Tribunal’s decision, or T).

10    At T[99] and [100], the Tribunal set out cl 890.211 and reg 1.11.

11    At T[101], the Tribunal identified the issue for determination as whether the first appellant “maintained direct and continuous involvement in the day-to-day management of Minz and in making decisions affecting the overall direction and performance of the business for the two years immediately before the application was made”. The Tribunal identified the relevant two-year period as 17 September 2013 to 17 September 2015.

12    At T[119], the Tribunal recorded that it had carefully considered all of the evidence before it and concluded that the first appellant had not had the requisite level of involvement in making decisions that affected the overall direction and performance of Minz during the relevant period.

13    The Tribunal then set out its reasons for that conclusion at T[120] to [130]:

120.    The Tribunal accepts that the applicant through her involvement with the business since 2011 is familiar with the business operations but the Tribunal finds that the applicant since the inception of the business in 2011 has not been involved in making decisions that affect the overall direction and performance of the business. The Tribunal notes having regard to the relevant regulatory definition that there is no requirement that the applicant have full responsibility for making decisions affecting the overall direction and performance of the business but only an involvement in those matters. However having regard to all of the evidence before the Tribunal it cannot be satisfied that since the inception of the business to date that the applicant has had any relevant involvement in critical decisions pertaining to the overall direction and performance of the business.

121.    The Tribunal finds that Mr Jianming Ren has since the establishment of the business in 2011 made all of the critical decisions pertaining to the overall direction and performance of the business.

122.    As noted this evidence indicates that Mr Ren was the designated Manager/Director of the business for the purposes of accreditation under the Passenger Transport Act 1990 NSW. In addition to this Mr Ren signed initial lease documents for the business and he purchased the tourist buses for the business in 2011 and again in 2016 and was responsible for the refit of these vehicles.

123.    As noted the sole existence of this business is to provide a luxury bus services to Chinese tourists visiting Australia. Intrinsic to this business are the buses being chosen and the respective fit outs of these buses. The evidence before the Tribunal indicates that the applicant was not involved in the direct purchase of these buses, nor was she involved in the fit outs. This responsibility was left to Mr Ren who was intrinsically involved in this process. The evidence before the Tribunal indicates that the applicant could not name the Mercedes-Benz dealership that the buses were purchased at, and where they are serviced at, and she confirmed in her evidence that she was not involved in this process.

124.    The evidence before the Tribunal indicates that Mr Ren was engaged by the applicant to work in a position of Operations and Sales Manager on 16 October 2013. A copy of the contract of employment has been provided to the Tribunal. This indicates that Mr Ren is expected to work a 38 hour week and his position description indicates that he is involved in tour bookings, driver rostering, vehicle maintenance, oversight of drivers, ensuring the vehicles are in proper working order, supervising and recording departure and return of all tours, soliciting feedback from tour participants and ensuring correct remuneration is paid to drivers. The evidence provided to the Tribunal indicates that simultaneously Mr Ren operates his own business JJ Travel involved in the tourist industry, airline bookings, and utilising buses owned by Minz to pick up and drop off Chinese tourists to the airport. The Tribunal finds that this evidence is indicative of the fact that Mr Ren is intrinsically involved in making decisions that affect the overall direction and performance of the Minz business which trades as a coach and tour business pitched at the Chinese market. This is evidenced by the fact that the applicant and Mr Ren share business premises and since the establishment of the business by the applicant in 2011 the business had never run autonomously from JJ Travel and the Tribunal finds this is because Mr Ren has the requisite skill set to run such a business and the applicant has merely used the business as a vehicle to obtain permanent residence in Australia. The applicant has refuted this stating that she has directed Mr Ren to purchase vehicles and she has the final say, however the evidence before the Tribunal indicates that the applicant has been removed from this process, confirmed by the fact that she was not able to provide the name and location of the dealership that her vehicles were purchased at in 2011 and in 2016, and where the vehicles are regularly serviced. The Tribunal finds that a person involved in the management of tourism/coach business for the Chinese market would be across such facts.

125.    This finding is confirmed by the fact that the applicants evidence during the review hearing which has been referred to extensively above was vague and very generalised and did not exhibit in the view of the Tribunal the requisite knowledge and understanding of the fundamentals of the business that would lead the Tribunal to find that she in the two year period prior to application maintained direct and continuous involvement in the management of the business from day to day and in making decisions that affected the overall direction and performance of the business.

126.    The Tribunal questioned the applicant at hearing about whether Mr Ren’s JJ Travel ran a coach service. The applicant responded that she “did not pay attention to this” which the Tribunal finds difficult to accept given that the applicant and Mr Ren’s business share the same business premises and Mr Ren is employed as the applicants Operations Manager.

127.    The Tribunal questioned the applicant about whether she had obtained depreciation schedules for the two biggest assets of her business the 2 Mercedes Benz Coaches that she had Mr Ren purchase in 2016. The applicant was unable to confirm this and one would anticipate that the applicant would be across the tax benefits of a depreciation schedule for the biggest assets and financial outlay of the business.

128.    The Tribunal questioned the applicant at hearing about what links she had made with Tourism NSW and other Australian tourist bodies in Australia to promote her business. Further to this that apart from the initial launch in Shanghai in 2011 what the links the applicant had made within the Chinese tourism sector. The applicant advised that she had attended a Chinese tourism forum in 2017 at the Sydney Opera House and information about Minz could be found on the Tourism NSW website. There was no further evidence provided with regard to links that the applicant had established with the tourism sector in New South Wales and in China since the business was established in 2011. This industry sector would be reliant on these links and there was little evidence about the businesses relationship within the Australian and Chinese tourism sector.

129.    The applicant was asked at hearing what a bus and coach operator’s liability questionnaire was and she advised that she had signed it but could not remember what it was about. One would expect that a person running a luxury coach service for the Chinese tourist market would have an understanding of such a questionnaire which is intrinsic to the operation of such a service.

130.    The Tribunal does not accept that the initial involvement in the business by Mr Ren pertained merely to its initial inception and establishment by the applicant and finds that it has been ongoing as evidenced by the co-location of the two businesses and Mr Ren’s engagement as an employee. The Tribunal holds the view that if the business was a truly autonomous one controlled by the applicant Mr Ren’s role in the business would have diminished over time, however this has not been the case. Mr Ren as noted has been engaged as a full time Operations and Sales Manager for the business since October 2013 and continues to be involved in the purchase and fitout of coaches (intrinsic to the business) first in 2011 and more recently in 2016. Mr Ren’s significant involvement in the business is further recognised by the fact that Mr Ren was using the business assets of Minz in advertising JJ Travel Service. Indeed in the Tribunal web search of July 2019, Mr Ren was still using the former assets of Minz for the advertising of his business JJ Travel despite the fact that these assets were on-sold to another tourism business in Mosman in October 2016. The Tribunal notes that this is despite the concerns of the MRT in its s.359A letter of 20 March 2015 (prior to the asset sale) that JJ Travel was using the assets of Minz on its business website and this clearly continued past the time that these concerns were first raised. The Tribunal finds that this is clear evidence of the intrinsic link between the two businesses and Mr Ren’s involvement in the management of the business from day to day and in making decisions pertaining to the overall direction and performance of the business.

(italic emphasis in original; bold emphasis added)

14    At T[134], the Tribunal stated:

The Tribunal has given careful consideration to the voluminous evidence before it including the evidence provided at review, the evidence provided by the applicant at the review hearing and the post hearing submissions. For the reasons provided the Tribunal cannot be satisfied that the applicant during the period 17 September 2013 to 17 September 2015 has maintained direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business and that the business therefore does not meet the requirements at r. 1.11(1)(b) to be considered a main business in respect of the applicant. It follows that the applicant is unable to satisfy the requirements of cl.890.211(1) of the Regulations.

(bold emphasis added)

15    On 22 November 2019, the appellants filed an originating application with the Circuit Court seeking judicial review of the Tribunal’s decision. That application was subsequently amended and the sole ground of review advanced at the hearing before the primary judge was as follows (as written):

1.    The Second Respondent fell into Jurisdictional error in finding that the Applicants did not meet the requirements of criterion 890.211 (1).

Particulars

a.    The decision of the Applicant to appoint Jian Ming Ren as the Operation and Sales Manager of Investment (Aust) Pty Ltd after September 2011 and to thereinafter rely upon his English language ability, advise, expertise and experience and to delegate functions to him was not a traversal of the requirements embodied cl. 809.211 (1) (sic) and reg. 1.11 (b) of the Migration Regulations 1994 but, was in all circumstances of the case reasonably necessary to discharge the requirements of criterion 890.211 (1).

(italic and underline emphasis in original)

16    The primary judge dismissed the application for judicial review. His Honour’s essential reasoning was as follows.

17    The primary judge noted the appellants’ submissions that:

(1)    the first appellant’s decision to employ Mr Ren and to oversee his performance of his duties in the period 17 September 2013 to 17 September 2015 did not impinge on her ability to satisfy the requirements of cl 890.211(1);

(2)    rather, through her employment of, and delegation of tasks to, Mr Ren, the first appellant maintained a direct and continuous involvement in the management of the business and in decisions affecting its overall direction and performance;

(3)    the Tribunal erroneously required the first appellant to manage the whole of the business and did not have regard to the ways in which a visa applicant might satisfy the requirement that she maintain direct and continuous involvement in the management of a business and in the making of decisions affecting the overall direction and performance of the business. The appellants relied in that regard upon Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93 where the Full Court of this Court (French, Sackville and Hely JJ) stated at 112 [63] in relation to a provision with terms similar to those of reg.1.11(1)(b):

… The criterion requires satisfaction on the part of the Minister that the applicant for the visa as the owner of an interest in a main business “maintained direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses”. This did not import a requirement that could only be satisfied by demonstrating the exercise of responsibility within the business in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure. There is a variety of ways in which a person might maintain direct and continuous involvement in the management of a business and in making decisions affecting its overall direction and performance. ; and

(4)    a person involved in the “management of the business” need not necessarily manage the whole of the business and that regard must be had to the whole circumstances and requirements of the individual business, citing Liu v Minister for Immigration & Border Protection [2016] FCCA 2364 at [31] and [32] (Manousaridis J) (J[12] to [14]).

18    From those submissions, the primary judge identified two issues for determination (J[15]).

19    The first was whether the Tribunal erred by applying the wrong test. The primary judge noted that a wrong test had been applied in Lobo where the Tribunal had been guided by a policy document which involved a test narrower than the one prescribed by the Regulations (J[15]).

20    His Honour held that it was clear from the Tribunal’s decision that the Tribunal recognised and expressly applied the criteria prescribed by cl 890.211(1) as informed by reg 1.11(l)(b) (J[16]). His Honour then noted that the Tribunal had quoted those provisions in the Tribunal’s decision and that the Tribunal had identified at T[101], that:

The issue in the present case is whether the applicant has maintained direct and continuous involvement in the day-to-day management of Minz and in making decisions affecting the overall direction and performance of the business for the two years immediately before the application was made. The relevant two-year period in this case is from 17 September 2013 through to 17 September 2015.

21    The primary judge noted that the Tribunal made no reference to any gloss on the relevant regulations or the criteria prescribed therein and that the Tribunal did not repeat the error identified in Lobo (J[16]).

22    The second issue identified by the primary judge was, assuming that the Tribunal had identified the correct test, it misapplied it by failing to have regard to all relevant circumstances (J[15]).

23    The primary judge noted that nothing the appellants raised suggested that the Tribunal did not have regard to all the evidence before it; and that his Honour’s summary of the Tribunal’s decision set out earlier in his reasons would suggest that the Tribunal understood: the circumstances by which the appellants came to be involved with Minz; their interactions with Mr Ren; Mr Ren’s involvement in the business of Minz; his operation of his own business in association with Minz; the fact that the two businesses operated from the same address and the first appellant’s lack of familiarity with important aspects of the business and the administration of its operations. His Honour was not satisfied that the Tribunal failed to have regard to a fact which might have been material to the outcome of its review (J[17]).

24    From that conclusion, the primary judge reasoned that the appellants’ complaint was properly to be seen as one concerned with the weight the Tribunal gave to particular evidence and, necessarily, to its findings on the merits of the visa application, and that absent any requirement in the Regulations concerning the weight to be given to particular evidence the appellants’ argument did not raise an issue amenable to judicial review. Similarly, his Honour reasoned, the implicit argument that the Tribunal reached incorrect factual conclusions takes the matter nowhere absent an identified error of law, such as illogicality or unreasonableness of the kind considered in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (Gummow ACJ, Heydon, Crennan, Kiefel and Bell JJ) (J[18]).

25    His Honour concluded that the appellants had not identified any jurisdictional error on the part of the Tribunal (J[19]).

C.    the grounds of appeal

26    The notice of appeal to this Court sets out the following grounds of appeal:

1.    The court below erred in finding that Jurisdictional error on the part of the Tribunal has not been demonstrated.

2.    In the court below, the Appellants demonstrated that the Tribunal erred when it found that the First Appellant did not satisfy the requirements of cl.890.211(1) of the Regulations.

27    The appellants submitted that the primary judge erred in failing to hold that the Tribunal had applied the wrong test by making adverse findings in relation to the first appellant’s:

(1)    non-involvement in the direct purchase of buses (T[123]);

(2)    lack of knowledge regarding the tax benefits of a depreciation schedule for the biggest assets and financial outlay of the business (T[127]);

(3)    non-recollection of what a bus and coach operator’s liability questionnaire is (T[129]); and

(4)    lack of involvement in critical decisions pertaining to the overall direction and performance of the business (T[120] and [121]),

which findings, it is submitted, imported a requirement that reg 1.11(1)(b) could only be satisfied by the first appellant through the demonstration of the exercise of responsibility within the business in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure. In this regard, the appellants call in aid the passage from Lobo set out at [17(3)] above.

28    I do not accept this submission.

29    It is plain that the Tribunal was cognisant of the criteria to be applied. It set out the relevant regulations at T[99] and [100], then at T[101] correctly identified, by reference to those regulations, the criteria that the appellants needed to satisfy. Further, the Tribunal expressly applied those criteria as is clear from the explicit references to those criteria at T[119], [120], [121], [125] and [134]. The Tribunal added no gloss, as the primary judge noted.

30    Notably, the Tribunal found that: “… having regard to all of the evidence before the Tribunal it cannot be satisfied that since the inception of the business to date that the [first appellant] has had any relevant involvement in critical decisions pertaining to the overall direction and performance of the business” (T[120]) and that “… Mr Jianming Ren has since the establishment of the business in 2011 made all of the critical decisions pertaining to the overall direction and performance of the business” (T[121]).

31    The appellants’ reliance upon Lobo is misplaced. That was a case in which the Tribunal erred by assessing a visa application against a departmental policy which was expressed in narrower terms than the relevant statutory criteria: see Lobo at 96 [5], 101 to 102 [30], 112 ([63] and [65]) and the first instance decision Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 at [4] to [10] (Gyles J). The Tribunal made no such error in the present case.

32    The appellants also contended that the Tribunal applied the wrong statutory test by requiring proof that the first appellant was managing the whole of the business and finding that this test was not met because there were parts of the business that she was not managing. I do not accept this as a fair characterisation of the Tribunal’s reasons. As previously stated, the Tribunal applied the correct statutory test and found that it could not be satisfied that the first appellant had any relevant involvement in critical decisions pertaining to the overall direction and performance of the business and that all such decisions were made by Mr Ren.

33    In summary, I discern no error in the reasoning of the primary judge.

D.    Conclusion

34    For the foregoing reasons, the appeal must be dismissed. There is no reason why costs should not follow the event. I will make orders accordingly.

Associate:

Dated:    27 August 2026