(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment‑linked visa or a family member's visa) if the Minister is satisfied that its holder:

(a) has not obtained a substantial ownership interest in an eligible business in Australia; or

(b) is not utilising his or her skills in actively participating at a senior level in the day‑to‑day management of that business; or

(c) does not intend to continue to:

(i) hold a substantial ownership interest in; and

(ii) utilise his or her skills in actively participating at a senior level in the day‑to‑day management of;

an eligible business in Australia.

(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:

(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and

(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day‑to‑day management of that business; and

(c) intends to continue to make such genuine efforts.

(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:

(a) business proposals that the person has developed;

(b) the existence of partners or joint venturers for the business proposals;

(c) research that the person has undertaken into the conduct of an eligible business in Australia;

(d) the period or periods during which the person has been present in Australia;

(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;

(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;

(g) business activity that is, or has been, undertaken by the person;

(h) whether the person has failed to comply with a notice under section 137;

(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day‑to‑day management of a business:

(i) the length of time that the person held the ownership interest or participated in the management (as the case requires); and

(ii) the reasons why the person no longer holds the interest or participates in the management (as the case requires).

...

(10) In this section:

...

eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:

(a) the development of business links with the international market;

(b) the creation or maintenance of employment in Australia;

(c) the export of Australian goods or services;

(d) the production of goods or the provision of services that would otherwise be imported into Australia;

(e) the introduction of new or improved technology to Australia;

(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.

...

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; or

(b) a partner in a partnership that carries on the business; or

(c) the sole proprietor of the business;

including such an interest held indirectly through one or more interposed companies, partnerships or trusts.

1. The Department has issued a Procedural Instruction on business visa cancellations which provides the policy and processes for the monitoring and cancellations of business visas under the Act.[5]
2. Paragraph 11.1 of the Procedural Instruction deals with the grounds for cancellation under s 134(1)(b) of the Act. That paragraph provides as follows:[6]

Section 134(1)(b) enables a visa to be cancelled if the visa holder cannot demonstrate they have an active, ongoing and senior management role in the business. Management of a passive investment that requires no active input from the visa holder would not meet this requirement. The visa holder must demonstrate that: > > • they have exercised responsibility within the business/es in terms of decision making authority and in setting strategic direction of the business (this may include, but is not limited to, responsibility for employees and/or responsibility for expenditure) > > • such responsibility has been exercised on a continuous and daily basis as opposed to occasional > > • their skills have been fundamental to, or have exerted direct influence on, the operation of the business/es and > > • they have a specific and identifiable role in the business. > > This requires the business to be ongoing and for the visa holder to consistently spend a significant portion of their time managing the business on an ongoing basis.

Business skills migration is intended to attract to Australia highly skilled business people who will use their skills to engage in business in Australia. The visa holder must therefore be actively involved in the day to day management of an eligible business in Australia. While some aspects of business management may occur while the visa holder is overseas, the visa holder must provide satisfactory documentary evidence that the time spent overseas has been to the benefit of the business in Australia. > > Management of an overseas business that has ties with the visa holder's business in Australia does not satisfy this requirement.

4. Paragraph 11.2 provides guidance on evidence that a visa holder may provide to demonstrate their compliance with the day-to-day management requirement. Such evidence includes:[8]

• business correspondence outlining the visa holder's duties and involvement in the day to day management of an eligible business in Australia at a senior level > > • statement from the business, detailing the visa holder's duties and responsibilities in the nominated business, as well as the duties and responsibilities of other family members, shareholders, directors and employees > > • evidence of the visa holder's participation in the day to day management of the business, for example, business correspondence, emails, attendance at meetings, facsimiles showing active involvement in research, negotiations and decision making > > • if the visa holder has spent most of their time outside Australia, evidence of how the visa holder has been managing, on a day to day basis, their Australian business from overseas. For example: emails, faxes, minutes of meetings held, evidence of attendance at meetings, presence at trade fairs, ongoing advertising etc > > • general correspondence etc, addressed to the company with no reference to the visa holder may not be sufficient to demonstrate that this requirement is met.

5. Paragraph 12.2 of the policy also provides guidance on assessing 'genuine effort' under s 134(2) of the Act. It provides:[9]

Under policy, genuine effort means that there should be evidence that the visa holder has exerted themselves to get into business in Australia and be involved in the management of the business at a senior level on a day to day basis. There is also the expectation that the visa holder will continue to make sustained and continued efforts to meet visa requirements throughout the 3 year period. > > ... > > The fact that the visa holder may be able to demonstrate one or more factors [under s 134(3)] does not necessarily mean the 'genuine effort' requirement has been met. Officers should look at the visa holder's efforts overall and the degree to which they have been exercised.

1. The Applicant is a 37-year-old citizen of China.[10] He applied for the visa on 6 April 2018.[11]
2. On 23 December 2020, the Applicant was granted the visa.[12]
3. On 25 April 2021, the Applicant arrived in Australia as the holder of that visa.[13] He remained in Australia for 63 days, departing on 26 June 2021.[14] Thereafter he arrived in Australia on 1 March 2023 and departed on 8 March 2023. He arrived again on 14 May 2024 and departed on 25 May 2024.[15] The Applicant was therefore present in Australia for a total of 83 days during the currency of his visa.
4. The Applicant currently remains offshore.

1. The Applicant's relevant business interest is in Phoenix Ocean Pty Ltd (trading as Phoenix Accommodation).[16] The business is located in Queensland.[17] The Applicant described the business activity in his visa application as follows:[18]

Phoenix Accommodation is a professional rooming accommodation agency. We are currently managing more than 100 rooms in St Lucia and South Brisbane areas to provide affordable accommodations for students.

2. The Applicant purchased the business on 12 May 2016 and assumed the role of managing director.[19]
3. Phoenix Accommodation has two other directors, namely Jing Fu and Haiyang Sun.[20]
4. The Applicant holds his 50% interest in Phoenix Accommodation through Innoova Investment Pty Ltd. Jing Fu and Haiyang Sun each hold the remaining 25% interest respectively.[21]
5. The Applicant reported that he worked 15 hours a week in the business in his role as managing director.[22]

1. On 27 February 2023, the Department sent the Applicant a Request for Information - Survey of Business Skills Visa Holders (Form 1010) ('survey request') pursuant to s 137 of the Act.[23]
2. On 1 March 2023, the Applicant arrived in Australia under his Business visa.[24] He then departed Australia eight days later on 8 March 2023.[25]
3. On 28 March 2023, the Applicant provided the Department with certain documents including:[26]
   • A completed Form 1010 - survey request;
   • Summary of the ownership structure for Phoenix Accommodation;
   • Company details for Innoova Investment Pty Ltd and Phoenix Ocean Pty Ltd;
   • Evidence of share transfers;
   • Photos of the business and screenshot of the Phoenix Ocean website;
   • Various Westpac Business account statements;
   • Deed of loan between Innoova and Phoenix Ocean; and
   • Emails to and from the Phoenix Accommodation Operation Manager.
4. On 6 March 2024, the Department sent the Applicant a request for additional information.
5. On 4 April 2024, the Applicant provided the Department with further documents including:[27]
   • Statement in response to request for information authored by the Applicant's authorised recipient;
   • Reference letters from Q&T Accountants and other directors of Phoenix Ocean;
   • Emails to and from Q&T Accountants;
   • Screenshots of various bank accounts (being the Applicant's personal account, Innoova business account, and Phoenix Ocean business account);
   • Copies of the Applicant's real estate licence and Queensland driver's licence;
   • Phoenix Ocean business proposal and financial statements for the year ending 30 June 2023;
   • Business Activity Statements ('BAS') from January 2023 to December 2023; and
   • Westpac Phoenix Ocean business account bank statements up to 31 January 2024.

1. On 22 April 2024, the Department issued the Applicant with a Notice of Intention to Consider Cancellation of his visa under s 134 of the Act ('the Notice').[28]
2. The Notice set out in detail the proposed grounds for cancellation. The Applicant was invited to make representations about the proposed cancellation within 70 days after the day the Department emailed the Notice.[29] The Notice was sent by email on 22 April 2024.[30]
3. On 1 July 2024, the Applicant responded to the Notice and provided various documents including:
   • Statement in response to the Notice authored by the Applicant's authorised recipient;
   • Director meeting notes dated 13 March 2023, 4 September 2023, 12 April 2024, and 24 May 2024;
   • Email correspondence to and from Shine Realty and Q&T Accountants;
   • Two BAS from October 2023 to March 2024;
   • Letters of offer of employment to Mi Han and Jing Fu dated 22 March 2023 and 20 March 2023;
   • Completed Form 1010 - survey request;
   • Signed property agreement; and
   • Three photographs of the business.

Decision to cancel the Applicant's visa under s 134 of the Act

1. On 24 September 2024, a delegate of the Respondent decided to cancel the Applicant's visa under s 134 of the Act.[31]

1. The delegate was satisfied that the Applicant has demonstrated a substantial ownership interest in an eligible business in Australia as required by s 134(1)(a) of the Act.[32]
2. The delegate was not satisfied that the Applicant demonstrated the required level of management in relation to the business as required by s 134(1)(b) of the Act.[33]
3. The delegate then considered the requirements of s 134(1)(c) of the Act. The delegate was not satisfied that the Applicant intends to continue to maintain management of the business in Australia as required by that sub-section.[34]
4. The delegate considered whether s 134(2) applied to the Applicant's circumstances. The delegate found that the Applicant has not made a genuine effort to utilise their skills in actively participating at a senior level in the day-to-day management of the business.[35] The delegate found that s 134(2)(b) was not met. The delegate was satisfied that there are no grounds which operate under s 134(2) to preclude the cancellation of the visa.[36]
5. The Applicant was notified of the cancellation decision the same day via email to his authorised recipient.[37]

1. On 17 October 2024, the Applicant lodged an application for review of the cancellation decision with the Tribunal.[38]

1. On 27 November 2025, the Tribunal hearing was conducted by video. The Applicant represented himself in the proceedings. The Respondent was represented by Mr Jonathan Hutton of the Australian Government Solicitor. The Applicant gave oral evidence and was cross-examined. He did not call any witnesses. The Tribunal received into evidence the following materials:

(a) Exhibit R1: Respondent's T-documents lodged 16 December 2024 comprising 579 pages of material; > > (b) Exhibit R2: Respondent's Statement of Facts, Issues and Contentions ('SOFIC') and Annexure dated 25 July 2025'; > > (c) Exhibit R3: Movement records of the Applicant dated 27 November 2025; > > (d) Exhibit R4: One-page screenshot of the Phoenix Accommodation website accessed 27 November 2025; > > (e) Exhibit A1: Applicant's four-page written statement (undated); > > (f) Exhibit A2: 'Special Projects' Letter of Offer dated 17 April 2017; > > (g) Exhibit A3: Letter of settlement from Q Property Lawyers dated 6 January 2016; and > > (h) Exhibit A4: Phoenix AutoCare Platform Business Plan (undated).

2. A summary of the Applicant's oral evidence to the Tribunal follows.

1. The Applicant told the Tribunal about his education and business background. He studied in the United States before forming his own business in China. Around that time, the Applicant accompanied his parents on a trip to Australia.
2. A short time thereafter, he submitted his application for a business visa. He wanted to live in Australia and developed a passion for the Australian lifestyle and people. He was granted the visa in 2020. He was married in 2018, and then moved to Hong Kong with his wife. His first child was born in 2019, and he was busy raising his family. The Applicant continued to study during the COVID-19 pandemic and completed an MBA in Hong Kong. He always wanted to move his family to Australia, but the pandemic travel restrictions affected those plans. The Applicant has four children in total, including twins born in 2023.
3. The Applicant said by 2023, the restrictions had lifted, and he was free to move around. He said by that time his children were settled in pre-school in Hong Kong. He said he managed his business in Australia by contacting them regularly and by putting them in touch with his business connections he had previously established. He planned to move to Australia, but his wife has a job in Hong Kong. He wants to expand the business by introducing new ideas. One of these ideas was to expand the current business to introduce an auto-repair platform. He is in regular contact with the other directors of the business and maintained he was involved in the day-to-day management of the business.
4. During cross-examination, the Applicant confirmed he was a director of Phoenix. He said his company provides student housing. He said they currently manage three to four different housing sites, and each of them have a different number of units, although the Applicant was not clear on how many units each site had. He also wasn't sure where each site was located.
5. The Applicant estimated his business has made approximately $200k to $300k in revenue income. He said the accommodation that is available is advertised on their website. The Applicant agreed he hasn't checked the website for some time.
6. The Applicant was taken to a screenshot of the company's website which showed that as of 27 March 2023, the company had seven properties in total.[39] He confirmed the company earns commission on the management of these properties. The Applicant was shown a screenshot of the Phoenix Accommodation website accessed on 27 November 2025 which shows the same seven properties were still available.[40] The Applicant explained that he assumed the number of available properties has grown, but not all the properties are advertised on the website.
7. The Applicant also said he wasn't familiar with the financial arrangements as that was the role of the accountant. The Applicant said he wasn't sure when Phoenix started but confirmed that he acquired a 50% interest in 2023. He said there were other directors co-managing the business before he came onboard. The Applicant said he wasn't sure if they were still company directors. He said he was aware that in Australia, there are formal corporate structures, but is not sure whether the former directors were officially appointed. During re-examination on this issue, he said in China there are no formal legal titles, and people may be known as 'directors' but not in a formal sense as understood in Australia.
8. The Applicant confirmed he attended four directors' meetings. He said there were no other meetings that occurred without him being present. He agreed he came to Australia in May 2024 and signed a letting agreement then and used his title as director on that document. He denied signing the letting agreement at that time (which was after his business visa cancellation) to demonstrate that he was involved in the paperwork. Other letting documents were put to the Applicant in which he signed as director. The Applicant was asked about his personal involvement in those letting arrangements and said he signed those documents after receiving advice from his lawyer. It was put to the Applicant that he provided those documents after he received the Notice of intention to cancel his visa from the Department for the purposes of creating a paper trail. The Applicant stated he didn't usually keep records but was told he needed to demonstrate his involvement in the business. He denied creating the records for that purpose.

1. The Applicant contends in his written statement that he meets the requirements under s 134(1)(b) of the Act. He contends that, although his management style and preferences may have been more verbal and hands-on, he has always 'aimed to foster efficient business operations through direct engagement and focus on critical business issues.'[41] The Applicant contends that his day-to-day efforts focus on 'value creation and risk management', which are skills he has developed as a business owner.[42] In that context, the Applicant contends that his contribution to the business is 'evident and apparent.'[43]
2. The Applicant stated that his family responsibilities and the COVID-19 pandemic halted his immediate plans to relocate to Australia.[44] However, he has continued to manage the business remotely whilst balancing his family responsibilities.[45]
3. The Applicant otherwise contends that the grounds in s 134(2) apply, and he has made a genuine effort to utilise his skills as an entrepreneur to oversee the day-to-day activities of the business and to expand the business partner network.[46]
4. The Applicant contends he is resolute in his intention to fully participate in Australia's community and economy. He intends to reside in Australia in the future. He contends that the business visa holds immense significance for his family's future and his own personal aspirations of residing in Australia.[47]

1. The Respondent contends that the discretion to cancel the Applicant's visa should be exercised as the Applicant has not sufficiently demonstrated he is actively participating at a senior level in the day-to-day management of Phoenix Ocean.[48] It was submitted that there is a lack of documentary evidence which demonstrates he was not using his skills in the day-to-day management of the company, and that his apparent lack of knowledge of the business means he was not participating at a senior level.
2. It is further submitted that the day-to-day management of Phoenix Ocean is handled by two other employees (and directors), namely Jing Fu and Haiyang Sun.[49]
3. Finally, it is submitted that the discretion under s 134(1) of the Act should be exercised as there is insufficient evidence before the Tribunal to demonstrate that the Applicant is making a genuine effort to use his skills to actively participate in the day-to-day management of the business, but rather has delegated such responsibility to Jing Fu and Haiyang Sun.[50] The Respondent therefore submits that the exercise of the discretion is not precluded by the operation of s 134(2).

1. The Respondent's SOFIC has identified two issues that the Tribunal must determine in this review.[51]
2. The first issue for determination is whether the discretion to cancel the business talent visa should be exercised. The Respondent submits that the discretion to cancel the visa is enlivened on the basis that the Applicant is not using his skills in actively participating at a senior level in the day-to-day management of the business. The Tribunal retains a broad residual discretion in relation to the cancellation of the visa under s 134(1).[52]
3. The second issue for determination is whether the Minister's discretion to cancel the business talent visa is precluded by the criteria identified in s 134(2) of the Act.
4. The Tribunal agrees with the Respondent's formulation of the issues for determination. Determination of the first issue requires the Tribunal to consider the relevant criteria under s 134(1). The use of the conjunction "or" in s 134(1) means that the discretion to cancel a business visa can be exercised if the Tribunal is satisfied of one of the three criteria in s 134(1). In this case, the Respondent contends that s 134(1)(b) is satisfied. In other words, the Respondent contends that the Applicant is not using his skills in actively participating at a senior level in the day-to-day management of the business.
5. Determination of the second issue requires the Tribunal to consider the entirety of s 134(2). The use of the conjunction "and" means that that all three criteria must be satisfied in order to preclude the Minister from cancelling a visa under s 134(2). In determining this issue, the Tribunal must consider whether s 134(2) operates to preclude the cancellation of the visa under s 134(1).
6. The parties' submissions were directed at the issues as formulated above. The Tribunal will frame its consideration of the above issues accordingly.

First issue: Should the discretion to cancel the Applicant's visa under s 134(1) be exercised on the basis that the Applicant is not using his skills in actively participating at a senior level in the day-to-day management of the business?

1. There doesn't appear to be any dispute that the Applicant had a substantial ownership interest in the business. The delegate was satisfied that the Applicant had a substantial ownership interest in Phoenix Accommodation in Australia.[53] The delegate had reference to an ASIC extract which provides that the Applicant has a 50% share in the business.[54] The delegate was also satisfied that the business met the definition of 'eligible business' as defined in s 134(10) of the Act.[55] The Tribunal has had regard to materials including the Form 1010 (survey response) and is satisfied that the Applicant has obtained a substantial ownership interest in the business.[56] That Form indicates that the Applicant invested the sum of $1 million into this business.[57] An ASIC company search dated 27 March 2023 indicates that the Applicant is one of three directors of the company Phoenix Ocean Pty Ltd, and holds 50% of the shareholdings.[58] The other two directors are Jing Fu and Haiyang Sun. They each hold 25% of the company's shareholdings.[59]
2. The Tribunal is satisfied that the Applicant has a substantial ownership in an eligible business in Australia.
3. The Respondent contends that the Applicant has provided insufficient evidence to demonstrate that he is utilising his skills in actively participating at a senior level in the day-to-day management of the business as required by s 134(1)(b) of the Act.[60]
4. In support of his position that the discretion should be exercised in his favour, the Applicant provided the Department with three tranches of documents as follows:

First tranche provided on 28 March 2023[61]

1. This tranche was provided in response to the Department's request on 27 February 2023 to complete the survey and provide supporting documentation.[62]

Second tranche provided on 4 April 2024[63]

1. This tranche was provided in response to the Department's request on 6 March 2024 for further information.[64] The Department indicated in that correspondence that the evidence supplied thus far is not sufficient for the Department to be satisfied of the Applicant's active, ongoing and senior management role in the business.[65]

Third tranche provided on 1 July 2024[66]

1. This trance was provided in response to the Department issuing the Applicant with a Notice of intention to consider cancellation of his visa.[67]
2. The documents provided by the Applicant across all three tranches can be broadly categorised as follows:
   • Documents executed by the Applicant in his role of director;
   • Financial statements;
   • General correspondence;
   • Director meeting notes;
   • References; and
   • Miscellaneous documents.
3. The Tribunal will consider each of these categories of documents below in its consideration as to whether the Applicant has been utilising his skills in the active participation at a senior level in the day-to-day management of the business.

Documents executed by the Applicant in the role of director

1. The documents that fall under this category are as follows:
   • A deed of loan;[68]
   • Two share transfer documents;[69]
   • Two unit transfers;[70]
   • Two trust documents for Phoenix Accommodation;[71]
   • Two Queensland 'Appointment of a property agent' forms;[72]
   • Two letters of employment;[73] and
   • Two partial residential letting agreements.[74]
2. The Respondent contends that the execution of these documents, in his role as director of the company, does not demonstrate day-to-day management of the business.[75]
3. The Tribunal has considered these documents and agree that these documents do not demonstrate that the Applicant is utilising his skills in actively participating at a senior level in the day-to-day management of the business. To take each of the documents in turn:

1. The deed of loan document was executed between Innoova Investment Pty Ltd (the lender) and Phoenix Ocean Pty Ltd (the borrower).[76] The document has been prepared by Stokes Lawyers and provides for the loan of $1 million from Innova to Phoenix Ocean.[77] The document is signed by the Applicant on behalf of Innoova on 10 March 2023.[78] Jing Fu and Haiyang Sun have each co-signed the document on behalf of Phoenix Ocean.[79] The Tribunal has considered the terms of the deed of loan document. There is nothing in this document which is directed at the Applicant's role in the day-to-day management of Phoenix Ocean. It does confirm a loan of $1m from one entity to the other but does not address or otherwise inform the Applicant's role in the business or how he is to be involved in the day-to-day management of the business.

1. The share transfer documents show that Jing Fu and Haiyang Sun each transferred 25 shares in Phoenix Ocean to the Applicant for the sum of $25 each.[80] Each share transfer was signed by the Applicant and Jing Fu and Haiyang Sun and dated 10 March 2023.[81] These documents do not demonstrate the Applicant's day-to-day management of the business.

1. The unit transfer documents show that Jing Fu and Haiyang Sun each transferred 25 units in Phoenix Ocean to the Applicant for the sum of $25 each.[82] Each unit transfer was signed by the Applicant and Jing Fu and Haiyang Sun and dated 10 March 2023.[83] These documents do not demonstrate the Applicant's day-to-day management of the business.

Two trust documents for Phoenix Accommodation

1. The first of these documents is a deed for an establishment of Phoenix Ocean Unit Trust and is dated 12 May 2016.[84] The second of these documents are labelled as Financial Statements for Phoenix Ocean Pty Ltd (Phoenix Ocean Unit Trust) for the year ending 30 June 2023.[85] The first document was prepared by lawyers for Q&T Accountants, and the second document was prepared by Q&T Accountants. The Financial Statements were signed by the Applicant and the other two directors on 9 January 2024.[86] The Tribunal has considered the contents of these documents and is of the view that they do not demonstrate the Applicant's active participation in the day-to-day management of the business.

1. Each of these forms is a Queensland Government 'Property Occupations' Form (identified as a Form 6 being an 'Appointment and reappointment of a property agent, resident letting agent or property auctioneer'.[87] The first of these is for a property in Greenbank, and is between Phoenix Accommodation and the property agent.[88] The term of appointment was to commence on 7 March 2024, and instructs the property to be leased and managed in accordance with the terms of the Form.[89] The second Form is for a property in St Lucia, and is between Phoenix Accommodation and the property agent.[90] The term of appointment was to commence on 17 May 2024, and instructs the property to be leased and managed in accordance with the terms of the Form.[91] The first of these Forms is signed by a person unknown. The second of these Forms is signed by the Applicant as director of Phoenix Ocean on 24 June 2024.[92] It is accepted that the Applicant signed the second form in his role as director. However, the signing of this one form which appointed an agent to manage the property at St Lucia does not in and of itself establish the Applicant was actively involved in the day-to-day management of the business.

1. These two documents are letters of offer of employment to each Jing Fu and Mi Han.[93] The first letter of offer is dated 20 March 2023 and is address to Jing Fu.[94] The letter of offer is in relation to the position of Manager with Phoenix Accommodation.[95] The letter indicates that Jing Fu is expected to work 38 hours per week at a rate of $23.50 per hour.[96] The letter of offer is signed by the Applicant and Jing Fu on 20 March 2023.[97]
2. The second letter of offer is dated 22 March 2023 and is address to Mi Han.[98] The letter of offer is in relation to the position of Manager with Phoenix Accommodation, though this position is also described as Property Manager.[99] The letter indicates that Mi Han is expected to work 38 hours per week at a rate of $23.50 per hour.[100] The letter of offer is signed by the Applicant and Mi Han on 22 March 2023.[101]
3. The Tribunal accepts that decisions involving the hiring of staff do demonstrate an active participation in the management of the business. The Tribunal accepts that these decisions are management decisions and that the execution of these two letters of offer do evince participation in the management of the business. However, the Tribunal queries the timing of the execution of these employment contracts when it appears that Jing Fu was already a director of the company. They were also both executed relatively soon after the Applicant was requested to complete the survey on 27 February 2023.[102] On balance however the Tribunal accepts that the two letters of employment do demonstrate the Applicant's participation at a senior level in regard to the hiring of staff for the business.

Two partial Appointment of property agent forms

1. These two documents appear to be partial Appointment of property agent forms.[103] These appear to be the same form as the Appointment of property forms identified above. The first of these documents is a partial residential letting agreement for a property in Chermside.[104] It states that the property is to be managed in accordance with the terms of the agreement from 13 June 2024 and has been signed by two clients and the Applicant as director on 25 June 2024.[105]
2. The second document appears to be a partial residential letting and/or management agreement. The document appears to bear the Applicant's signature and is dated 24 June 2024.[106] Neither of these documents on their face demonstrate that the Applicant has been actively involved in the day-to-day management of the business.

1. The Applicant also provided other financial documents relating to the business including bank statements and ATO BAS statements. These documents include:
   • ASIC company searches and ABN Lookups for Phoenix Ocean and Innoova Investment;[107]
   • Westpac bank statements of recent transactions in the name of the Applicant, Innoova Investment and Phoenix Ocean in March 2023;[108]
   • Westpac bank statements for Phoenix Ocean for the period February 2023 to February 2024;[109] and
   • BAS statements for Phoenix Ocean Trust for the periods January 2023 to March 2023, July 2023 to September 2023, October 2023 to December 2023, and January 2024 to March 2024.[110]
2. The Tribunal notes that the Applicant's name and signature has been affixed to the extract of the BAS for the periods January 2023 through to December 2023.[111] These documents were provided to the Department as part of the second tranche of documents on 4 April 2024.[112] The last BAS provided (dated January 2024 to March 2024) is not signed.[113] That BAS was provided to the Department as part of the third tranche of documents on 1 July 2024.[114] It is not apparent to the Tribunal why some of extracted BAS print-outs have been signed by the Applicant. It may be an indication that he viewed these documents at some point in time.
3. In any case, the Respondent contends that the Applicant's access to these documents do not provide sufficient evidence of day-to-day involvement in the business.[115]
4. The Tribunal agrees with this contention. The Tribunal does not consider that these documents considered individually or cumulatively provide evidence of the Applicant's day- to-day management of the business.

1. The Applicant provided the Department with the following email communication:
   • An onboarding email from 'Bonnie - Office Manager' to the Applicant (undated);[116]
   • Two emails from the Applicant to Q&T Accounting dated 27 July 2023 and 17 May 2024 wanting to discuss accounting practices in Australia and to hold a meeting;[117]
   • An email from the Applicant to Shine Realty regarding a property dated 22 May 2024;[118] and
   • Ten pages of untranslated WhatsApp messages.[119]
2. The Tribunal has had regard to the above correspondence. These emails appear to be very limited in their length and content and appear routine in nature. These emails are the only email correspondence the Applicant appears to have sent during his term as director. The Tribunal has acknowledged that the Applicant was director during the COVID-19 pandemic, which would have impacted his personal presence in Australia. However, the Tribunal would have expected that someone who is actively involved at a senior level in the day-to-day management of the business would have sent far more emails, especially given the fact he was working remotely for the majority of the period. The Tribunal has had regard to the Applicant's evidence to the Tribunal that he prefers a personal management style and his acknowledgment that he hadn't kept a proper paper trail of all of his dealings with the business. However, the Tribunal agrees with the Respondent's submission that the limited email communication does not demonstrate the Applicant's day-to-day participation in the business.[120] Further, as the Applicant worked remotely for a period of time, the Tribunal agrees with the Respondent's submission that it would be expected that the Applicant would have significant evidence of communication with his Australian employees and partners.[121] The available evidence does not demonstrate that this occurred.
3. The Tribunal finds that the scope of these emails (even considered collectively) does not evince an active participation at a senior level in the day-to-day management of the business.

1. The Applicant has provided four directors' meeting notes in tranche three of his materials (that is, in response to the Notice of cancellation) for the following dates:
   • 13 March 2023;[122]
   • 4 September 2023;[123]
   • 12 April 2024;[124] and
   • 24 May 2024.[125]
2. Each of the meeting notes are one page in length and contain brief details of the topic discussed at each. The meetings were attended by all three directors including the Applicant. The topics include whether to purchase the management rights for a property and handling new regulations limiting rental prices.[126]
3. Movement records obtained by the Respondent indicate that the Applicant was only physically present in Australia for the last meeting on 24 May 2024.[127] This indicates to the Tribunal that the Applicant's presence overseas did not prevent the directors from holding meetings. The Tribunal would have expected that a person actively involved at a senior level in the day-to-day management of the business would have held more than four meetings during his tenure. The brevity of the meeting notes are a further indication that the Applicant was not involved at a senior level. For example, there are no action items, or any indication at all as to each director's contribution to the meeting or how long each meeting was held for. The Tribunal is not satisfied that these meeting notes demonstrate the requisite level of involvement in the day-to-day management of the business.

1. The Applicant has provided two reference letters:
   • A reference from Q&T Accountants dated 2 April 2024;[128] and
   • A jointly signed reference from Jing Fu and Haiyang Sun dated 4 April 2024.[129]
2. The reference letters were provided in the second tranche of documents after the Department's request for further information on 6 March 2024.[130] Each of the documents is one page in length.
3. The reference letter from Q&T Accountants state that they act as accountant and tax agent for Phoenix Ocean. The letter states that the Applicant, as director of the company, 'has actively participated as trustee in the management of the business since 10th March 2023'.[131] The letter states that they believe the Applicant is a genuine director who can take the company to a better business position given his personal traits and business acumen.[132]
4. The reference letter from Jing Fu and Haiyang Sun states as follows:[133]

We are the directors of Ocean Phoenix Pty Ltd and hereby to provide this letter of reference to Mr Xiling Chen the managing director of Ocean Phoenix Pty Ltd. > > Mr Xiling Chen is utilizing his skills and business experience in actively participating at a senior level in the day-to-day management of Ocean Phoenix Pty Ltd. He facilitated a number of significant deals for the business and coordinated the reconstruction of the business. Under his leadership and management, the business has been re-constructed to a better financial position. In addition, he has funded $1 million into Ocean Phoenix Pty Ltd in supporting the development of its business. > > We understand that Mr Xiling Chen has to stay in Hong Kong to look after his family members. We have periodically reported to Mr Xiling Chen and held meeting with him. > > We truly believe that Mr Xiling Chen will continue to hold a substantial interest in the business and utilize his skills and experience in assisting the growth of the business.

5. These two reference letters are vague and do not provide any particular detail of the Applicant's active participation in the business. The letter from the accounting firm states that the Applicant was present at various discussions in relation to the financial position of the business.[134] There is no information as to his active participation in these meetings or discussions. There is no further information about how the Applicant's personal traits or business acumen has assisted the business.
6. The reference letter from his fellow directors is similarly vague and lacks detail. It states that the Applicant has 'facilitated a number of significant deals for the business and coordinated the reconstruction of the business.[135] The letter does not identify what those significant deals are, when they occurred, and how the Applicant was involved. The letter acknowledges that the Applicant has funded $1million into the business which has led the business to be in a better financial position.[136] It also acknowledges that the Applicant had to remain in Hong Kong to look after his family.[137] The Tribunal accepts that the Applicant has injected financial capital into the business and has also had to remain in Hong Kong due to his family responsibilities. However, both of these letters are silent as to how the Applicant was actively participating at a senior level in the day-to-day management of the business, other than making bare assertions that he did so. The Tribunal finds that these reference letters do not provide evidence of the Applicant's active participation at a senior level, in the day-to-day management of the business.

1. The Applicant has provided the Department with a number of miscellaneous documents including:
   • 'Ownership Structure' and 'Funds Transfer' diagram of Phoenix Accommodation;[138]
   • Phoenix Ocean Business Proposal (undated);[139]
   • Screenshots of the Phoenix Accommodation website dated 27 March 2023 displaying seven properties;[140]
   • Screenshots of a banking sign-in page and the Applicant's director ID;[141]
   • Two photographs of a vacant office space, and three photographs of the Applicant sitting at a desk and in a meeting;[142]
   • Applicant's Queensland driver's licence,[143] Queensland real estate licence issued 29 July 2021,[144] and his children's Hong Kong birth certificates;[145]
   • Payroll register report generated 26 June 2024 for Jing Fu and Mi Han;[146] and
   • List of properties dated March 2023 - May 2024 identifying 11 properties and their 'Form 6 date'.[147]
2. The Applicant also provided the Tribunal with three further documents:
   • 'Special Projects' Letter of Offer dated 17 April 2017;[148]
   • Letter of settlement from Q Property Lawyers dated 6 January 2016;[149] and
   • Phoenix AutoCare Platform Business Plan (undated).[150]
3. The Tribunal has had regard to the documents provided by the Applicant. The documents showing the ownership structure and funds transfer are limited in their detail. They are simple diagrams which show that Innoova Investment owns 50% of Phoenix Ocean, and that Jing Fu and Haiyang Sun own the remaining 25% each.[151] The Business proposal document is undated, and it is not apparent on the face of the document who authored it, although the Applicant gave oral evidence to the Tribunal that he created that document. It contains the business' 'Current Operation Highlights' and its five-year objectives.[152] There is no information in this document regarding the Applicant's role in the business. The other documents, such as the screenshots, photographs, payroll register, and list of properties do not provide evidence of the Applicant's active participation at a senior level in the day-to-day management of the business. The 'Special Projects' letter of offer and the letter of settlement relate to the purchase of property in Queensland by the Applicant's parents. It is not apparent how these two documents assist in addressing the current application before the Tribunal.
4. The Phoenix AutoCare Platform Business Plan (on the Applicant's own evidence) is a recent document. The Applicant said he created the document in about April 2025. He said he came up with this new platform as he felt under pressure with his current visa status, and he wanted to propose a separate business to support his application. The Applicant said he hopes to use his existing client base to build this business, but otherwise confirmed that nothing had been done to further this business proposal. He stated that he has made some prototypes for the new app on his laptop, but they are not ready yet.
5. The Tribunal has had regard to these documents and finds that they do not demonstrate the Applicant is utilising his skills in the required manner. The documents do not provide any evidence of any major business decisions or demonstrate how the Applicant was involved at a senior level in the day-to-day management of the business.

1. It is contended on behalf of the Respondent that the day-to-day management of Phoenix Ocean is managed by the two other directors, Jing Fu and Haiyang Sun.[153] Both Jing Fu and Haiyang Sun are employed as 'duty property assistants.'[154] These employees have worked in the business full-time since 2016. The evidence suggests that they are responsible for the day-to-day management of the business. For example, these employees are responsible for the following duties:[155]

(a) Rental management; > > (b) Financial operations; > > (c) Property owner communication; and > > (d) Other administrative duties.

2. The Tribunal has considered the information provided to the Department and the Tribunal, as well as the Applicant's oral evidence. The Tribunal agrees with the Respondent's contention that it is in fact Jing Fu and Haiyang Sun who are responsible for the day-to-day management of the business. The Tribunal notes that both of these directors have been onboard as full-time employees since 2016. Their joint reference letter states that the Applicant is 'utilizing his skills and business experience in actively participating at a senior level in the day-to-day management' of the business.[156] However they have not provided any specific examples of how this is occurring. The letter mentions the significant injection of funds, and that the Applicant has 'facilitated a number of significant deals for the business'.[157] However, there is no further details or evidence provided as to the nature of these significant deals or the Applicant's role and involvement in them.
3. Throughout the majority of his tenure as director, the Applicant has resided overseas. The Applicant gave evidence that his absence from Australia was due to a number of factors including the COVID-19 pandemic, his family circumstances, and the fact that his wife was employed in Hong Kong. The Applicant reiterated his desire to move his family to Australia, but that was more difficult at the moment as the children are settled in schools and his wife's present employment.
4. The Tribunal has considered the Applicant's circumstances and has had regard to his evidence that he intends to move to Australia one day. The Tribunal accepts the Applicant's evidence that he does hope to move his family to Australia, but on the presently available evidence, the Tribunal is not satisfied that the Applicant is utilising his skills in actively participating at a senior level in the business. There is no evidence for example that the Applicant intends to return to Australia so he may increase his participation in the business. The Applicant told the Tribunal that he has stepped back from his management responsibilities whilst his visa was cancelled. The Tribunal accepts that he has been working on developing the Phoenix AutoCare platform, but presently this business proposal has not developed any further.

1. The Tribunal finds that the Applicant has not demonstrated that he is utilising his skills in actively participating at a senior level in the day-to-day management of Phoenix Accommodation. Therefore, he does not satisfy, s 134(1)(b) of Act.

Second issue: Is the discretion to cancel the business visa precluded by s 134(2)?

1. Having concluded that s 134(1) is satisfied, the Tribunal must then consider whether the discretion to cancel the visa is precluded by the operation of s 134(2) of the Act. As discussed above, each of the three criteria need to be satisfied in order to preclude the discretion in s 134(1) from being exercised. Section 134(3) provides for a non-exhaustive list of matters that may be taken into account in determining whether a person has made a genuine effort.
2. The Tribunal has determined that the Applicant has obtained a substantial ownership interest in Phoenix Accommodation. The Tribunal finds that s 134(2)(a) is satisfied. In other words, the Applicant has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia.
3. Therefore, the remaining provisions that the Tribunal must consider fall under s 134(2)(b) and (c) of the Act. That is, the Tribunal must be satisfied that the Applicant has made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of the business, and that he intends to continue to make such genuine efforts.
4. The Respondent submits that the discretion to cancel the visa is not precluded by s 134(2) of the Act as the Applicant has not made a genuine effort to use his skills in the required manner, and there is no evidence that he intends to do so in the future.[158] The Respondent submits that s 134(2)(b) and (c) are not satisfied.
5. The Tribunal has had regard to the materials provided by the Applicant and his oral evidence to the Tribunal. The materials do not demonstrate evidence of genuine effort on the part of the Applicant to use his skills in the required manner, nor an intention to continue to do so. The Tribunal accepts that the Applicant has invested a large amount of capital in the business and has used his skills to expand the business partner network and has introduced connections to the business. The Tribunal accepts the Applicant's evidence that he has utilised his skills as an entrepreneur to contribute to the business. However, there is little evidence before the Tribunal to support a conclusion that he has made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of the business.
6. The Applicant did provide a business proposal for a new platform known as 'Phoenix Autocare' but the Applicant confirmed during his oral evidence that this proposal is still in its infancy and no further work on the proposal has been undertaken. This business proposal could potentially be considered under s 134(3)(a) of the Act, but the Tribunal notes that the Phoenix AutoCare platform is still under development. The Applicant confirmed in his evidence that there has been no further development of this concept.
7. The Applicant's movement records were before the Tribunal. These demonstrate that since the grant of his visa in 2020, the Applicant has spent a total of 83 days in Australia. The Tribunal accepts that the pandemic and his family plans may have impacted his ability to travel during this period. However, the Applicant has not demonstrated an intention for he or his family to reside in Australia in the future, other than his bare claims that this is what he would like to do in the future. The Tribunal has taken the periods of the Applicant's presence in Australia into account under s 134(3)(d) of the Act.
8. The Applicant has also provided evidence of the value of his ownership interest in the business (being 50%) as provided for in s 134(3)(f). However, evidence of his ownership interest alone is not sufficient to demonstrate that the Applicant has made a genuine effort in utilising his skills at the required level, or that he has an intention to continue to do so. Paragraph 12.2 of the policy guidance provides that the fact that a visa holder may be able to demonstrate one or more factors does not necessarily mean that the genuine effort requirement has been met.[159] Decision-makers are instead directed to look at a visa holder's efforts overall and the degree to which they have been exercised.[160]
9. It is the Tribunal's finding that the Applicant has not demonstrated a genuine effort to utilise his skills in the day-to-day management of the business or that he intends to continue to make such efforts. The Applicant's overall efforts during the tenure of his visa do not demonstrate a genuine effort to utilise his skills, nor an intention to continue to do so. There is little evidence before the Tribunal to demonstrate his day-to-day management of the business. It appears to the Tribunal that the Applicant invested the capital into the business, and introduced business contacts, but otherwise the day-to-day management of the business was left with his co-directors. The Applicant's absence overseas, coupled with the lack of documentary evidence, demonstrate an absence of a genuine effort. The Tribunal would expect a person who was making a genuine effort to be able to provide more complete and detailed records of their management of the business, such as business correspondence, emails, attendance at meetings, facsimiles showing active involvement in research, negotiations and decision making (as per paragraph 11.2 of the policy guidance).[161] As the Applicant has spent the majority of his time overseas, evidence of how he has been managing the business on a day-to-day basis might include emails, faxes, minutes of meetings held, evidence of attendance at meetings, presence at trade fairs, ongoing advertising etc.[162] These documents have not been provided in the Applicant's case.

1. The Tribunal finds that s 134(2)(b) and (c) of the Act is not satisfied. The Tribunal finds that the cancellation of the Applicant's visa is therefore not precluded by s 134(2) of the Act.

1. The Tribunal is aware it retains a broad residual discretion in determining whether the discretion to cancel the Applicant's business visa should be exercised. The Tribunal has concluded that the Applicant has satisfied s 134(1)(a) of the Act, that is, he has a substantial ownership interest in an eligible business in Australia being Phoenix Accommodation.
2. The Tribunal is not satisfied however that the Applicant has demonstrated that he is utilising his skills in actively participating at a senior level in the day-to-day management of the business (s 134(1)(b)).
3. The Tribunal has considered whether the cancellation of the visa is precluded by s 134(2) of the Act. The Tribunal is not satisfied that s 134(2)(b) and (c) have been met. Section 134(2) provides that the Minister must not cancel a visa if satisfied of sub-sections (a), (b) and (c) of the Act. The Tribunal's findings mean that the cancellation of the Applicant's visa is not precluded by s 134(2) of the Act.
4. Having considered these matters as a whole, the Tribunal finds that the discretion to cancel the Applicant's visa should be exercised.

1. The decision of the Tribunal is to affirm the decision under review.

[52] The exercise of the residual discretion was discussed by DP Boyle in Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1051 (29 April 2021) [25], which view was later endorsed by the Federal Court in Zhang v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 634 [41]-[46].