商业移日常管理要求的理解

不管是163还是188移民,都有日常管理要求。这个管理要求很多人误解为居住要求,比如在澳洲2年内至少住1年。
实际上这个是不同的要求。
Sun & Anor v Minister for Immigration & Anor [2015] FCCA 1266 (18 May 2015)
在以上的案例中,一个申请人离开澳大利亚只有不到半年,移民局还是认为他不满足日常管理的要求,没有发给他签证。MRT也做出了同样的决定。
The Tribunal accepted that the Applicant maintained a level of involvement in the business while she was in China and that the Applicant discussed with her husband aspects of the business through telephone calls and email correspondence. However, the Tribunal was not satisfied that this amounted to direct and continuous involvement in the management of the business from day-to-day (para 17). In particular, it found that the business was managed directly and continuously by the Applicant’s husband for the three month period in 2011 when the Applicant was in China.
Judge Simpson 的看法
In my opinion, on a plain reading of reg.1.11(1)(b) it cannot be said that the Applicant, whilst she was overseas, maintained a direct and continuous involvement in the management of the business from day-to-day, including making decisions, affected the overall direction and performance of the business. Whilst the Applicant may have attempted to continue such an involvement it is practically impossible for her to “directly and continuously” be involved in the management of the business from day-to-day. To suggest otherwise does not accord with common sense. Day-to-day management requires continuity and regular activity by the Applicant. It was not present in this case.
They say that, given the nature of the business and that it required hands-on management, the Tribunal’s conclusion was reasonable, logical and open on the material before it. The Respondent submits that the Court should reject this ground.
以后所有想通过海外管理澳洲普通业务公司的方案基本无法实施,但是进出口公司我认为还是可以考虑given the nature of business。

以上这个判例和现行的规则是不大一致的,因为根据decision of Re Lau & MIMIA [5]的精神 where the AAT noted:
While some of the activities undertaken by the applicant might be viewed as unsophisticated, there is nothing to suggest that they were inappropriate for the nature of the proposed business … the use of the term day-to-day management does not require that activity be recorded every day, and the input at a senior level by someone of the experience of the applicant will often be intangible

PAM3 [6] does state examples of how the requirement in r.1.11(1)(b) can be met. It states that, to meet the requirement for direct and continuous involvement in management the applicant must demonstrate that they have been actively managing and operating the business, which requires that the business be ongoing and for the applicant to consistently spend a significant portion of their time managing the business on an ongoing basis. Management involves planning, organising, directing and controlling the resources of the business. PAM3 provides further details as to what is meant by the terms “planning”, “organising”, “directing” and “controlling” and also provides various examples of the types of decisions that may affect the overall direction and performance of the business.[7]

志杰移民认为如果想要保险还是要对日常管理这个要素,严格要求就像Sun & Anor v Minister for Immigration & Anor [2015] FCCA 1266 (18 May 2015)这个判例中要求的一样。

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