1412095 (Migration) - [2015] AATA 3315

1412095 (Migration) [2015] AATA 3315 (30 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Kevin John McGuire
Miss Tracey Angela Luter
Mr Connor McGuire
Mr Max McGuire
CASE NUMBER:  1412095
DIBP REFERENCE(S):  CLF2014/14353 CLF2014/14355
MEMBER:Fraser Syme
DATE:30 July 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.
Statement made on 30 July 2015 at 3:45pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 July 2014 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 30 January 2014. The delegate refused to grant the visa on the basis that the first named applicant did not satisfy the requirements in cl.890.211 that the first named applicant had an ownership interest in one or more actively operating main businesses in Australia in the 2 years immediately before the application was made.
The applicants appeared before the Tribunal on 14 July 2015. Only the first named applicant gave evidence and presented arguments.
The applicants were represented in relation to the review by their registered migration agent. He provided a written submission attaching documents which were largely already on the departmental file. The only new documents were financial statements and tax documents since the date of the delegate’s decision. He did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the first named applicant had an ownership interest in one or more actively operating main businesses in Australia in the 2 years immediately before the application was made for the purpose of cl.890.211. He is seeking to rely on two businesses. For the entire 24 month period, he is seeking to rely on a handyman business which he operated as a sole proprietor. From 2 November 2012 to 30 January 2014, he is seeking to rely on convenience store business, the Banora Point Store, which he owned together with the second named applicant through a company KM Australia Pty Ltd (“KM”). The first named applicant holds 90% of the issued shares in KM. The second named applicant holds the balance 10%.
Main business is defined in r.1.11, and the requirements include:
a.The first named applicant has an ‘ownership interest’ in the business;
b.The first named applicant has maintained a direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business;
c.The value of the ownership interest of the first named applicant and the second named applicant in the business was at least 10% of the total value of the business; and
d.The business…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1412095 (Migration)

Details

AGLC: 1412095 (Migration) [2015] AATA 3315
Case: [2015] AATA 3315
Decision Date: 30 July 2015

CaseChat Overview and Summary

The applicants in this case challenged the decision to deny them Business Skills (Residence) (Class DF) visas. The dispute was heard by the Migration Review Tribunal, which upheld the decision of the Department of Home Affairs. The Tribunal was required to determine whether the first applicant had an ownership interest in an actively operating main business in Australia in the two years immediately before the application was made, as required by clause 890.211. This involved examining the evidence of the first applicant's involvement in a handyman business and a convenience store business.

The Tribunal considered whether the handyman business was an actively operating main business. The definition of a main business requires an actively operating business that is not speculative or passive investment. The Tribunal noted that while there is no specific definition of the word ‘business’, it takes its content from its context. The Tribunal concluded that continuity and repetition of trading activity over a reasonable period is a relevant consideration in determining whether an entity is a ‘business’ in the sense of a going concern. The Tribunal found that the first applicant had not provided sufficient evidence to demonstrate that the handyman business was actively operating for the required period.

The Tribunal affirmed the decision not to grant the applicants Business Skills (Residence) (Class DF) visas, noting that the applicants can still make a request directly to the Minister. The Tribunal found that the first applicant had not met the requirements of clause 890.211, as the evidence did not establish that the handyman business was an actively operating main business in the required period. The Tribunal's decision was based on a thorough examination of the evidence and a careful consideration of the relevant legal principles.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the first named applicant had an ownership interest in one or more actively operating main businesses in Australia in the 2 years immediately before the application was made for the purpose of cl.890.211. He is seeking to rely on two businesses. For the entire 24 month period, he is seeking to rely on a handyman business which he operated as a sole proprietor. From 2 November 2012 to 30 January 2014, he is seeking to rely on convenience store business, the Banora Point Store, which he owned together with the second named applicant through a company KM Australia Pty Ltd (“KM”). The first named applicant holds 90% of the issued shares in KM. The second named applicant holds the balance 10%. Main business is defined in r.1.11, and the requirements include:a.The first named applicant has an ‘ownership interest’ in the business; b.The first named applicant has maintained a direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business;c.The value of the ownership interest of the first named applicant and the second named applicant in the business was at least 10% of the total value of the business; andd.The business is a ‘qualifying business’. The meaning of ‘ownership interest’ in r.1.03 and s.134(10) includes a sole proprietorship and includes a shareholder in a company that carries on the business. The definition of qualifying business is set out in r.1.03 and the requirements include that the business is operated for the purpose of making a profit through the provision of goods and/or services and is not speculative or passive investment. It is not in dispute that Banora Point Store meets all the requirements of a main business. The problem for the first named applicant is KM did not operate that business for a full 24 months before making this visa application. Therefore, they can only satisfy the requirements in 892.211 if the first named applicant’s handyman sole proprietor business meets the requirements of a main business, in particular, whether it was actively operating. Is the handyman business an actively operating main business? The Tribunal discussed with the first named applicant the above mentioned definitions of main business and qualifying business in the legislation, but noted there is no definition of the word ‘business’. Business, is a word which takes its content from its context.[1] Continuity and repetition of trading activity over a reasonable period is a relevant consideration in determining whether an entity is a ‘business’ in the sense of a going concern.[2] [1] Lu v MIAC (2009) 112 ALD 125 at [39], citing Mason CJ, Gaudron and McHugh JJ in Re Australian Industrial Relations Commission and Others; Ex parte Australian Transport Officers Federation and Others (1990) 171 CLR 216 at 226.[2] Kushner v MIAC [2009] FMCA 390 (Driver FM, 28 May 2009) at [48]. Although the Court was considering a cancellation under s.134(1), the reasoning appears equally applicable in relation to the meaning of “business” in the context of “main business” and “qualifying business”.

Decision

Reasons for decision

The Tribunal notes that the applicants can still make a request directly to the Minister.DECISION The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.Fraser SymeMember

Ratio Decidendi

Legal Principle Established

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