1410521 (Migration)

[2015] AATA 3111

1410521 (Migration) [2015] AATA 3111 (10 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sai Kin Yee
Ms Feiyan Chen
Master Si Kang Yee
Miss Si Hui Yee

CASE NUMBER:  1410521

DIBP REFERENCE(S):  CLF2013/235057 CLF2014/92941

MEMBER:Jennifer Ciantar

DATE:10 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and remits the application for Business Skills (Residence) (Class DF) visas with a direction that the first named applicant satisfies the criterion prescribed in cl.890.211(2).

The Tribunal does not have jurisdiction in respect of the secondary applicants  

Statement made on 10 July 2015 at 10:47am

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 3 June 2014 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 25 September 2013. On 3 June 2014, the delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy cl.890.211(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that despite requests, the applicant had not provided copies from the ATO website of all BAS lodged in the 2 years preceding lodgement of the visa application. Specifically, there was no evidence of lodgement of the BAS for the period 1 July 2011 to 30 June 2013.

3. With the application for review the applicant submitted that the applicant has now provided the BAS from the Tax Office portal and a letter of explanation from the applicant’s accountant. Benjamin Houng, Principal, BJ Houng & Co, writes that he acts for Manaia Pacific Pty Ltd, formerly known as Sai Yee Foods Pty Ltd. When the applicant requested the BAS from the online tax agent portal he was under the impression that the applicant was requesting the running balance of the tax agent integrated account statement which shows details of BAS lodged and paid, and also the tax balance that remains outstanding. The applicant also provided copies of the BAS from the tax agent portal.

4. In a submission, dated 29 April 2015, the applicant writes that he commenced the business in Australia in 2002 and he owns 66.67% of the business and his brother owns the balance. The applicant is of the view that he provided the delegate with the information he requested, and although it was in a different format, it was more comprehensive.

5. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the first named applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl.890.211(2).

8. 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 visa applicants have made claims in relation to subclass 890 and subclass 892 (MRT file 1008453).

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

   ·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).

   ·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).

10. At the time of the decision, the applicant must continue to satisfy the primary criteria in clause 890.211, 890.215 and 890.216: clause 890.221.

11. On the Business Skills profile form 1217, lodged on 25 September 2013, the primary applicant identifies his main business as Sai Yee Foods Pty Ltd. He states that in 2012 and 2013 he had a 66% interest in the business. Certificates of Registration of a Business Name indicate that the business name, Manaia Pacific Shop, was registered on 2 October 2007 and renewed until 2 October 2013 and the proprietor is Sai Yee Foods Pty Ltd. An ASIC extract states that on 19 December 2013 Sai Yee Foods Pty Ltd changed its name to Manaia Pacific Pty Ltd.

12. The Tribunal has first considered if the applicant meets the requirements of cl.890.211(1). The Tribunal is satisfied on the basis of the ASIC documents provided to the Department and the Tribunal that an Australia Business Number had been obtained for the main business. The Tribunal finds that the period of 2 years immediately before the application was made was 26 September 2011 to 25 September 2013. However, the Tribunal accepts that the BAS for the quarter, 1 July 2013 to 30 September 2013 would not have been required by the ATO prior to the lodgement of the visa application on 25 September 2013.

13. With the visa application, and again on 15 May 2014, the applicant provided the Department with BAS printouts for the following quarters: 1 July 2011 to 30 September 2011, 1 October 2011 to 31 December 2011, 1 January 2012 to 31 March 2012, 1 April 2012 to 30 June 2012, 1 July 2012 to 30 September 2012, 1 October 2012 to 31 December 2012, 1 January 2013 to 31 March 2013 and 1 April 2013 to 30 June 2013. Each printout is headed Business Activity Statement.

14. In response to a request dated 24 March 2014 the applicant also provided the Department with 2 screen prints, dated 17 April 2014 and titled Australian Taxation Office Tax Agent Portal – Itemised account, which indicate that:

    ·On 15 November 2011 $4240 in pay as you go tax was withheld and a $360 pay as you go tax instalment was made. These amounts equate to the BAS printout for the period 1 July 2011 to 30 September 2011.

    ·On 20 March 2012 $6630 in pay as you go tax was withheld and a $360 pay as you go tax instalment was made. These amounts equate to the BAS printout for the period 1 October 2011 to 31 December 2011.

    ·On 18 June 2012 $7630 in pay as you go tax was withheld and a $360 pay as you go tax instalment was made. These amounts equate to the BAS printout for the period 1 January 2012 to 31 March 2012.

    ·On 11 February 2013 $4632 in pay as you go tax was withheld and a $1797 pay as you go tax instalment was made. These amounts equate to the BAS printout for the period 1 July 2012 to 30 September 2012.

    ·On 1 March 2013 $5978 in pay as you go tax was withheld and a $3000 pay as you go tax instalment was made. These amounts equate to the BAS printout for the period 1 October 2012 to 31 December 2012.

    ·On 18 March 2013 $3798 in pay as you go tax was withheld and a $360 pay as you go tax instalment was made. These amounts equate to the BAS printout for the period 1 April 2012 to 30 June 2012.

    ·On 16 May 2013 $5304 in pay as you go tax was withheld and a $4202 pay as you go tax instalment was made. These amounts equate to the BAS printout for the period 1 January 2013 to 31 March 2013.

    ·On 2 September 2013 $6260 in pay as you go tax was withheld and a $3000 pay as you go tax instalment was made. These amounts equate to the BAS printout for the period 1 April 2013 to 30 June 2013.

15. The screen prints from the ATO tax agent portal also indicate that they are itemised accounts of transactions processed by the ATO during the periods 1 July 2011 to 30 December 2012 and 1 January 2013 to 29 April 2014. The Tribunal has checked the amounts processed by the ATO and finds that they all correspond with the amounts detailed in the printouts lodged with the visa application. The applicant has also provided the Tribunal with the BAS downloaded from the tax agent’s portal, for the relevant 2 year period. The Tribunal finds that the information provided in the print outs lodged with the visa application is the same as the information contained in the online version of the BAS from the tax agent’s portal. The Tribunal is satisfied that at the time of application, all Business Activity Statements required by the ATO for the relevant period had been submitted to the ATO.

16. Despite the applicant providing the printouts and the screen prints from the ATO tax agent portal, the delegate found that the applicant had not provided copies from the ATO website of all BAS lodged in the 2 years preceding lodgement of the visa application. Therefore, there was no evidence of lodgement of the BAS for the period 1 July 2011 to 30 June 2013. The Tribunal is of the view that the delegate’s finding is relevant to the second limb of the requirement in cl.890.211(2) - whether the BAS required by the ATO were included in the application.

17. The applicant has advised the Tribunal that the printouts provided with the visa application are printouts from the accountant’s software used to prepare and lodge BAS with the ATO. The printouts are the client’s copy of the BAS that was lodged with the ATO. The Tribunal is of the view that the BAS that are required to be included in the application do not necessarily have to be the actual document that was submitted to the ATO and do not have to be in the specific format indicated in the Department’s policy. The Tribunal accepts that although the printouts were not the actual documents submitted to the ATO, they were in fact a copy of the document that was lodged with the ATO and this is confirmed by the itemised account of transactions provided to the delegate and by the copies of the BAS from the tax agent’s portal provided to the Tribunal. The Tribunal finds that the content of the BAS provided with the visa application and the BAS from the tax agent’s portal are identical. The Tribunal is satisfied that the BAS for the relevant period were included in the application.

18. The Tribunal is satisfied that all Business Activity Statements required by the Australian Taxation Office for the relevant period have been submitted to the ATO and have been included in the application. The Tribunal finds that the first named applicant meets the requirements of clause 890.211(2).

19. The appropriate course, therefore, is to remit this matter so that the Department of Immigration and Border Protection may consider the remaining visa criteria.

20. The Tribunal also finds it does not have jurisdiction in respect of the secondary applicants because, as explained to the applicants in a letter dated 2 April 2015, to have made a valid application, if the applicants made the application while in the migration zone, they must also have been in the migration zone at the time that the application for review was lodged. Movements records indicate that the secondary applicants were not in Australia at all the relevant times.

    DECISION

21. The Tribunal sets aside the decision under review and remits the application for Business Skills (Residence) (Class DF) visas with a direction that the first named applicant satisfies the criterion prescribed in cl.890.211(2).

22. The Tribunal does not have jurisdiction in respect of the secondary applicants

    Jennifer Ciantar
    Member