1412638 (Migration)

[2016] AATA 3614

1412638 (Migration) [2016] AATA 3614 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Boon Lian Lim
Ms Adeleen Chu
Ms Victoria Lim
Ms Cheri Lim

CASE NUMBER:  1412638

DIBP REFERENCE(S):  CLF2013/294909 CLF2014/88653

MEMBER:Adrian Ho

DATE:18 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 visa:

·cl.892.211(1) of Schedule 2 to the Regulations

Statement made on 18 March 2016 at 4:08pm

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 4 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 28 November 2013. The delegate refused to grant the visa on the basis that Subclause 892.211(1) was not met.

3. The applicants were represented in relation to the review by their barrister and registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the primary applicant (the applicant, Mr Boon) meets Subclause 892.211(1) of the Schedule 2 of the Migration Regulations which provides:

   (1) The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

6. All parties agree that the relevant 2 year period was 28 November 2011 to 28 November 2013 (the 2 year period).

7. The applicant was made a director of the company that owns the business in May 2012. 

8. Evidence submitted establishes that the applicant and his included wife together owned half of the shares on issue of the company that owns the business from May 2009.

9. The applicant’s movement records establish that he held a Subclass 163 visa from July 2009 which ceased in January 2014.

10. Regulation 1.11(1) was amended by Migration Amendment Regulations 2010 (No. 3) SLI 70 of 2010, after the applicant was granted the Subclass 163 visa.

11. As pointed out by the parties, Clause 3(3) of the amending regulations provided:

    The amendment made by item [1] of Schedule 1 does not apply in relation to an application for a visa if:

    (a) the applicant applies for:

    (i) a Business Skills — Established Business (Residence) (Class BH) visa; or

    (ii) a Business Skills (Residence) (Class DF) visa, on the basis of  seeking to satisfy the primary criteria for the grant of a Subclass 890 (Business Owner) visa or a Subclass 892 (State/Territory Sponsored Business Owner) visa; and

    (b) the applicant held a temporary visa immediately before the commencement of these Regulations; and

    (c) the applicant purchased an ownership interest (within the meaning of the Migration Regulations 1994) in a business in Australia:

    (i) before the commencement of these Regulations; and

    (ii) while the applicant held the temporary visa.

12. Before the amendment, r.1.11 required an ownership interest of 10% of the value of the business; and after the amendment, an ownership interest of 51%.

13. The tribunal is satisfied the applicant and his included wife acquired an ownership interest of 50% of the value of the business before commencement of the amendments and while they held a temporary visa.  He also meets the other requirements to fall within Clause 3(3) of the amending regulations and therefore the amended version of r.1.11 does not apply to him.

14. As the applicant and his included wife owned more than 10% of the value of the business throughout the 2 year period, and have since increased their ownership interest to 100% of the value of the business, that portion of Subclause 892.211(1) is satisfied.

    Actively operating

    Appointment as director

15. The delegate was not satisfied that the business was actively operating throughout the 2 year period. 

16. The delegate based that decision in part on the proposition that the applicant only became a director of the company in May 2012 and decided there was no business activity prior to that time.

17. The tribunal accepts the proposition put forward by the applicant’s lawyer that there is nothing in the Regulations requiring the applicant to be a director of the company which owns the business.  What is required is an ownership interest, which was in place, and, through r.1.11, 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 (the management requirement).

18. The applicant has provided evidence that when he and his included wife acquired their ownership interests, it was she that was relevantly made a director and by omission, he was not, until later.

19. The management requirement can be satisfied whether or not the applicant was formally appointed a director of the relevant company.

    Operating activity

20. The company operating the main business reported sales of $43590 in its tax return for the tax year ended 30 June 2012 (DIBP f.84) which tax year takes in the beginning of the two year period above.  The year after, the company’s tax return reported sales of $205681 to 30 June 2013 (DIBP f.102).

21. The tribunal accepts the evidence submitted that indicates that Mr Lu Shuang Huang, an Australian citizen (see DIBP f.67), was hired by the applicant and, together with the applicant, work on renovation works of the business from 1 August 2011.

22. A selection of invoices by the business to customers was provided which span 2011-2013, the earliest of which was issued in January 2011 and the latest of which was issued in October 2013.

23. On the evidence, the tribunal is satisfied that the business was actively operating throughout the 2 year period.

24. The applicant’s movement records indicate that he has lived in Australia since the beginning of 2010 and on the evidence the tribunal accepts that he was physical present in Australia and maintains, and has maintained during the 2 year period, 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.

25. For these reasons, the applicant satisfies Subclause 892.211(1).

    DECISION

26. The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 visa:

    • cl.892.211(1) of Schedule 2 to the Regulations.

    Adrian Ho
    Member