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

1. 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).

2. 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.

3. The applicants appeared before the Tribunal on 14 July 2015. Only the first named applicant gave evidence and presented arguments.

4. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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%.

7. 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 is a ‘qualifying business’.

8. 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.

9. 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.

10. 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?

11. 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”.

12. The first named applicant explained it was much harder than he anticipated to establish the handyman business. He spent a lot of time trying to drum up business and establish links with real estate agents and nursing homes. He spent a lot of time too quoting for work which he did not obtain. In the second half of 2012, he spent most of his time researching other business opportunities and then on the acquisition and running of the Banora Point Store. The handyman business is now growing. He explained this was partly from his earlier efforts to establish links and partly because he advertises the handyman business in the store and through word of mouth speaking to store customers. He added that the NSW state government were satisfied with his business efforts, which is why they agreed to sponsor him for the permanent residence visa. He further added that there was no turnover requirement in the regulations to say what was or was not a business.

13. The Tribunal discussed with the first named applicant the BAS for his handyman business in which he reported:

Quarter	Jan-Mar 12	Apr-Jun 12	Jul-Sep 12	Oct-Dec 12	Jan-Mar 13	Apr-Jun 13	Jul-Sep 13
Sales	$370	$605	$1409	Nil	Nil	$8,493	$10,467

1. The Tribunal discussed with the first named applicant it accepted there was a clear intent and a genuine effort by the first named applicant to establish a handyman business in the 24 months prior to the visa application. However, it was unsure that intent alone was sufficient to satisfy it there was an actively operating main business. It considered the weekly sales figures which prior to April 2013 were at best $100 and for most of the time well below that figure meant that the handyman business was not an actively operating main business.

2. The Tribunal agreed to allow the applicants 7 days after the hearing to provide additional supporting documents. The Tribunal noted other than his tax returns and BAS, the Tribunal had no financial statements for the handyman business.

3. After the hearing, the applicants provided additional documents. In an accompanying cover letter the first named applicant states in he spent time researching vacant land for development; meeting with real estate agents; shire council town planners and discussing valuations. However, prevailing economic conditions made it unviable to proceed with development. He further states prior to purchasing Banora Point Store, he spent time evaluating five other retail businesses. He provided some confidentiality forms regarding release of financial documents to him regarding these businesses. He provided documents demonstrating his investigating vacant blocks of land and the other businesses. In the view of the Tribunal, these activities by the first named applicant are distinct from his operating the handyman business.

4. In relation to the handyman business, the first named applicant provided shipping documents for the transport of the first named applicant’ work truck and £500 tools from his building business in the UK as evidence of his intention to establish a building business in Australia. He provided 8 quotations for work in January/February 2012 under the handyman business ABN. He provided too bank accounts in the UK showing available monies to fund the activities of the handyman business. The first named applicant submitted periods of low or no sales are to be expected in the building business.

5. The Tribunal accepts the first named applicant had the intention to and made genuine effort to establish a handyman business. He registered the ABN in March 2011. He submitted BAS to the ATO (albeit not until January 2014). He brought his work vehicle and some tools from the UK. He spent time trying to drum up work. He made funds available for the operation of the handyman business. However, the Tribunal finds the activities of the handyman business of the first named applicant did not reach the level of continuous and repetitive trading activity to amount to business for the period 30 January 2012 to around April 2013. That finding is supported by the BAS of the handyman business showing the sales figures set out in paragraph 13. The very modest sales and for extended period zero sales lead the Tribunal to conclude there was no provision of services or products for profit lead and therefore the handyman business was not a qualifying business for the period 30 January 2012 to around April 2013. That the handyman business was not a qualifying business means too that it was not a main business. The Tribunal accepts though that from around April 2013 to 30 January 2013 the handyman business was an actively operating main business. In the view of the Tribunal, it is only from that date onwards, that the handyman business demonstrates a continuity and repetition of trading activity that it could be considered a business.   

6. For those reasons, the Tribunal finds the handyman business was not an actively operating main business until April 2013. Given the first named applicant did not acquire Banora Point Store until November 2012, it follows that for the period 30 January 2012 to November 2012 the first named applicant did not have an actively operating main business in Australia. He therefore did not have an ownership interest in one or more actively operating main businesses in Australia in the 2 years immediately before the application and does not meet the requirements of cl.890.211.

7. As the first named applicant does not meet essential criteria for the grant of the visa, the Tribunal must affirm the refusal of the visa.

   Secondary applicants

8. From the identity documents on the departmental file, the Tribunal is satisfied the second named applicant, third named applicant and fourth named applicant each is a member of the first named applicant’s family. As the Tribunal has affirmed the decision in respect of the first named applicant, the second, third and fourth named applicants are unable to meet the secondary criteria. The Tribunal as such affirms the decisions in respect of the second, third and fourth named applicants.

   Minister’s public interest power

9. The Tribunal is particularly sympathetic to the circumstances of the applicants. It accepts the first named applicant has acted in good faith and demonstrated a clear commitment to making an economic contribution to Australia through his business endeavours. The Tribunal is mindful too of their social and educational ties to Australia.

10. As discussed during the hearing, the Tribunal has had regard to whether the applicants’ case is one which it should refer to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicants, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicants’ case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter.

11. The Tribunal notes that the applicants can still make a request directly to the Minister.

    DECISION

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

    Fraser Syme
    Member