1407398 (Migration)

[2015] AATA 3360

1407398 (Migration) [2015] AATA 3360 (24 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Hongwei Xu
Mr Jianqiang Hu
Ms Piaopiao Hu
Mr Chengxi Hu

CASE NUMBER:  1407398

DIBP REFERENCE(S):  CLF2013/197787 CLF2014/50900 CLF2014/69221

MEMBER:Jennifer Ciantar

DATE:24 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Statement made on 24 August 2015 at 2:46pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 April 2014 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) Subclass 890 visas under s.65 of the Migration Act 1958 (the Act).

2. On the visa application the applicants stated that the main business is Cities NSW Pty Ltd. The major activity of the business is property renovations, consultancy and building projects. The first named applicant is the director and has a 100% interest in the business, and first became involved in the business on 16 June 2011.

3. The visa applicants applied for the visas on 19 August 2013. The delegate refused to grant the visas on the basis that cl.890.212 was not satisfied because the delegate was not satisfied that the assets of the applicants in the main business had a value of at least $100,000 throughout the 12 months immediately before the lodgement of the visa application.

4. The first named applicant (the applicant) appeared before the Tribunal on 20 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. On 2 July 2015 the Tribunal wrote to the applicant and invited her to provide information to show that she continues to have an ownership interest in the main business, Cities NSW Pty Ltd, and that this main business is still actively operating in Australia as required by cl.890.211 and cl.890.221 of the Regulations. The Tribunal’s invitation noted that according to ASIC records, Cities NSW Pty Ltd ABN 62 151 529 163 had been deregistered on 19 October 2014.

7. On 14 July 2014 the applicant responded by stating that from 5 August 2011 until the business was deregistered on 19 October 2014, the applicant had been the owner of  Cities NSW Pty Ltd. However, she has since purchased a new business. The applicant provided documents including a Certificate of Registration of a Company for Cities NSW Pty Ltd, issued 16 June 2011, ASIC extract confirming the deregistration of Cities NSW Pty Ltd on 18 October 2014, BAS for Cities NSW Pty Ltd, financial statements for Cities NSW Pty Ltd for the year ended 14 May 2014, a Certificate of Registration of a Company for Cities Healthy Pty Ltd issued 28 April 2014, registration of a Business Name for Hongwei Souvenir Shop, issued 3 June 2014, and extracts to show that Cities Healthy Pty Ltd is the business name holder of Hongwei Souvenir Shop, contract for the sale/purchase of a health food and souvenir business by Cities Healthy Pty Ltd, BAS for Cities Healthy Pty Ltd, financial statements for Cities Healthy Pty Ltd for the year ended 14 May 2015 and a statement of loan account.

8. On 11 August 2015 the applicant provided the Tribunal with documents relevant to the question of the assets of Cities NSW Pty Ltd at the time of application.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. At the time the visa application was lodged, the Business Skills (Residence) Class DF visa contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Sponsored Business Owner) and Subclass 893 (State/Territory Sponsored Investor). The applicants have only made claims in relation to Subclass 890.

11. The criteria for a Subclass 890 visa are set out in Part 890 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria.

12. The primary criteria include the following requirements at time of application:

    ·The applicant has had, and continues to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application is made: clause 890.211(1). The term ownership interest is defined in r.1.03 and the term main business is defined in r.1.11.

    ·for each business to which cl.890.211(1) above applies, an Australian Business Number (‘ABN’) has been obtained; and all Business Activity Statements (‘BAS’) required by the Australian Taxation Office (the ATO) for the period mentioned in cl.890.211 have been submitted to the ATO and have been included in the application: clause 890.211(2). 

    ·The net value of the assets of the applicant, of his or her spouse or of the applicant and the spouse together in the main business or main businesses in Australia is, and has been throughout the 12 months immediately before the application is made, at least $100,000: clause 890.212.

13. Clause 890.221 requires an applicant to continue to satisfy the primary criteria in cl.890.211, at the time of decision.

14. For the following reasons the Tribunal is not satisfied that cl.890.221 is satisfied because the Tribunal is not satisfied that at the time of decision, the applicant continues to meet the requirements of cl.890.211(1). As noted, cl.890.211(1) requires an applicant to have had, and to continue to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application is made.

15. The Tribunal is of the view that cl.820.221 refers to the same main business as that nominated on the visa application form and which met the requirements of cl.890.211. The ownership interest in the established main business used to satisfy criterion 890.221 must be the same interest in the same business used to satisfy time of application requirements of cl.890.211 and nominated on the visa application. The Tribunal finds that the main business identified on the visa application form and for which BAS had been provided is Cities NSW Pty Ltd and it ceased operating in October 2014. The Tribunal finds that this business was deregistered on 19 October 2014. The Tribunal is not satisfied that at the time of decision the applicant continues to have an ownership interest in the main business, Cities NSW Pty Ltd, or that she continues to maintain 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.

16. The applicant gave evidence that she purchased a new business around April or May 2014 and she has invested $120,000 in this business. She found it too difficult to manage 2 businesses so she closed down Cities NSW Pty Ltd in October 2014 and it ceased operating and she has not had any interest in this business since.

17. The representative submitted that the regulations allow for 2 main businesses. However, the Tribunal finds that at the time of application, August 2013, or in the 2 years immediately preceding the lodgement of the application, the applicant did not have an ownership interest in the business she now owns, Cities Healthy Pty Ltd, or in the associated business, Hongwei Souvenir Shop.

18. The applicant provided the Tribunal with evidence relevant to whether the net value of assets held in the main business had been throughout the 12 months immediately before the application was made, at least $100,000. The applicant provided loan documents and gave evidence that her business had lent Alpine Coal $500,000, which was repaid via a number of deposits into the bank account of Cities NSW. She stated that she might not have provided all the required information to the Department because she and her staff lacked experience. The applicant submitted that Cities NSW Pty Ltd had lent Alpine Coal $500,000 which was repaid and therefore she had more than $100,000 in assets in the main business. However, as discussed with the applicant, the Tribunal is of the view that if it is satisfied that the applicant will not meet a time of decision criterion it would be futile for the Tribunal to make findings in respect of cl.890.212. As the Tribunal has found that the applicant does not satisfy cl.890.221, the Tribunal makes no findings in respect of cl.890.212.

19. The applicant stated that she and her family decided to live in Australia permanently when she was granted a Subclass 163 visa and they have now lived here for 5 years. Her children are studying and would find it difficult to adjust to life in China. She has invested in businesses in Australia.

20. The Tribunal has considered the applicant’s evidence that the refusal will cause her and her family great distress. However, as the applicant does not have an ownership interest in one or more actively operating main businesses in Australia, the applicant does not continue to satisfy the criteria in cl.890.211 at the time of decision. The Tribunal therefore finds that the requirements of cl.890.221 are not met.

    CONCLUSIONS

21. There has been no material submitted by the applicants, or which is otherwise available to the Tribunal, which would support a conclusion that any other applicant for the visa would meet the requirements of cl.890.221.

22. Neither has it been submitted, nor is there any material otherwise known to the Tribunal, which would support a conclusion that any applicants meet requirements prescribed at Parts 891, 892 or 893 of Schedule 2 to the Regulations. This being the case, the Tribunal is not satisfied that the applicants meet essential prescribed criteria for any Class DF visa. The grant of such visas to them must be refused.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

    Jennifer Ciantar
    Member

    
    

    ATTACHMENT

    Regulation 1.03 provides that the term ownership interest has the meaning given to it in subsection 134(10) of the Act. That subsection provides that an 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.

    The term main business is defined in regulation 1.11 as follows:

    1.11 (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:

    (a) the applicant has, or has had, an ownership interest in the business; and

    (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

    (c) the value of the applicant's ownership interest, or the total value

    
        

    of the ownership interests of the applicant and the applicant's spouse, in

    
        

    the business is or was at least 10% of the total value of the business; and

    (d) the business is a qualifying business.

    (2) If an applicant has, or has had, an ownership interest in more than 1

    
    

    qualifying business that would, except for this subregulation, be a main

    
    

    business in relation to the applicant, the applicant must not nominate

    
    

    more than 2 of those qualifying businesses as main businesses.