1415520 (Migration)

[2016] AATA 3763

1415520 (Migration) [2016] AATA 3763 (22 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Syeda Samia MUBASHIR
Mr Syed Sumair MUBASHIR
Ms Syeda Wajiha MUBASHIR
Mr Syed Wajahat MUBASHIR
Mr Syed Mubashir AHMED

CASE NUMBER:  1415520

DIBP REFERENCE(S):  CFL2014/49756 CLF2014/44266 CLF2014/44267 CLF2014/49757

MEMBER:Miriam Holmes

DATE:22 April 2016

PLACE OF DECISION:  Melbourne

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

·     Cl.892.212 of Schedule 2 to the Regulations.

Statement made on 22 April 2016 at 3:44pm

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 11 September 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 20 March 2014. The delegate refused to grant the visa on the basis that the primary applicant did not meet the net assets requirement at the time of application in cl.892.212.

3. The Tribunal has received substantial written submissions and additional evidence and proceeded to make a decision on the documentary evidence available.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the primary applicant, Mrs Syeda Samia Mubashir, meets the criteria in cl.892.212.

7. The visa application has been made on the basis that the primary applicant is the managing director and owner of Mubashir & Sons Pty Ltd that operates a grocery store known as “Punjab Together”. The primary applicant acquired part of this business from her husband, Mr Ahmed Syed Mubashir, in October 2011. The primary applicant owns 8 shares and her husband owns 2 shares. Both Mr and Mrs Mubashir are directors of the Company.

8. The issue for the Tribunal to consider is whether the applicant meets the requirements in cl.892.212 (see attached) at the time of application. Clause 892.12 sets out minimum requirements regarding the assets of the applicant. The primary time of application criteria for Subclass 892 require:

   ·unless the appropriate regional authority has determined that there are exceptional circumstances, the applicant meets at least two of the following requirements (cl.892.212(a), (b) and (c)): 

   -In the 12 months immediately before the application is made, the main business provided an employee, or employees, other than the applicant or a family member, who were Australian citizens or permanent residents or New Zealand passport holder, with a total number of hours of employment at least equivalent to those that would have been worked by 1 full-time employee;

   -The net value of the business and personal assets in Australia of the applicant and/or the applicant’s spouse, is, and has been throughout the 12 months immediately before the application is made, at least AUD250 000;

   -The total value of the net assets owned by the applicant and/or the applicant’s spouse, in the main business is, and has been throughout the 12 months immediately before the application is made, at least AUD75 000;

9. “Appropriate regional authority” means in relation to a State or Territory and applications for visas of a particular class, means a Department or authority of that State or Territory that is specified by Gazette Notice, for the purposes of these Regulations, in relation to the grant of visas of that class: r.1.03. In this case, the relevant instrument is IMMI 10/041 dated 24 May 2010, which specifies the Department of Innovation, Industry and Regional Development for the purposes of the definition of “appropriate regional authority” in r.1.03.

10. Page 5 of the Form 949 State Territory Sponsorship: Business Skills Class completed by the Department of State Development, Business and Innovation (Victoria) on 14 March 2014 indicates that the primary applicant is sponsored for the purpose of the Subclass 892 visa application. The regional authority has not determined that there are exceptional circumstances.

11. The Tribunal finds that the primary applicant does not meet the requirement in cl.892.212(a). The primary applicant nominated Mr Asif Khan as the employee to meet the requirement between 20 March 2013 and 19 March 2014.  The Tribunal cannot be satisfied on the evidence provided, including the PAYG payment summaries, payroll activity summary, payslips and Commonwealth Bank receipt, that in the 12 months immediately before the application was made the main business provided an employee who was an Australian citizen or permanent resident or New Zealand passport holder with a total number of hours at least equivalent to those that would have been worked by one 1 full-time employee. As noted by the delegate the primary applicant has included payslips for work when the employee was offshore between 29 April 2013 until 5 May 2013 and no documentary evidence has been provided to demonstrate that the employee was working between 1 April 2013 and 30 June 2013. Further, the information supplied in the BAS statement for the June 2013 quarter declares wages less than would be expected for a full time employee in the period if the hourly rate was paid for a full time worker, noting the delegate calculated the wages for the June 2013 quarter for a full time employee would be $5,688, however wages of only $2,122 were declared in the June 2013 BAS statement. In the written submissions made to the Tribunal on 20 March 2015 there is no submission that the primary applicant meets this criterion. The Tribunal did not receive any additional evidence in relation to the employee’s working hours. Therefore, on the evidence available, the Tribunal is not satisfied that the primary applicant meets the requirement in cl.892.212(a).

12. The Tribunal then considered cl.892.212(b). The delegate was not satisfied that at the time of the visa application that the primary applicant met the requirement in cl.892.212(b). In particular the delegate determined that the net business and personal assets were $224,472 as at 31 December 2102 and $ 246,765 as at 31 December 2013 and therefore less than the $250,000 threshold. The delegate did not include in the calculations the value of a vehicle. The Tribunal has received additional evidence in this regard.

13. On the evidence available, the Tribunal finds that xx lawfully acquired part of the business from her husband, Mr Mubashir.

14. In assessing the value of assets, the Tribunal is required to consider the value of personal and business assets held by the primary applicant and Mr Mubashir.  After reviewing the documentary material, the Tribunal made the following findings regarding the personal assets and business assets held by the primary applicant and Mr Mubashir in the 12 month period prior to the visa application on 20 March 2014:

    ·That as at 20 March 2013 and 19 March 2014 Mr Mubashir owned a 2002 Mercedes-Benz car valued at $9,050. The Tribunal makes this finding after taking into consideration the evidence of purchase of the vehicle for $15,000 in August 2010 being the Vicroads transfer of registration documentation confirming the purchase in 2010 for $15,250 and market value in 2010, the bank records of the withdrawal of the purchase monies from the account and red book valuation as at 11 August 2014, the 2014 registration certificate documentation, and the primary applicant’s statutory declaration dated 20 March 2105;

    ·That as at 20 March 2013 and 19 March 2014 the primary applicant owned a gold bar. The gold bar was purchased on 15 June 2011 in Islamabad at Al Safa Jewellers  and brought to Australia on 13 July 2011. The gold bar’s fair market value was $6,000 as at 31 December 2012 and $5,000 as at 31 December 2013. The Tribunal makes this finding after taking into consideration the purchase receipt dated 15 June 2011 from Al Safa Jewellers in Islamabad and the valuations provided by the Australian Gemological Laboratory in March 2015 for valuations as at 31 December 2012 and 31 December 2013.

    ·That as at 31 December 2012 the business (Mubashir & Sons Pty Ltd, had net assets of -$3,757. That as at 31 December 2013 the business (Mubashir & Sons Pty Ltd), had net assets of $18,536. The Tribunal made these findings based on the financial statements for the business as at 31 December 2013 provided by the applicants.

    ·That as at 31 December 2012 Mr Mubashir had loaned $308,280 to the business and that as at 31 December 2013 Mr Mubashir had loaned $231,706 to the business. These business loans were documented in the 2013 financial statements of the business and the ANZ bank statement for account XXX322 held by Mr Mubashir and the bank statement for the account of XXX688 also in the name of Mubashir and Sons Pty Ltd. The Tribunal also relied on the Directors Loan Account statement provided by Yianni & Co accountants that the monies were transferred to the business between 27 July 2010 and 1 November 2012 and the loan account reduced as monies were repaid to Mr Mubashir between January 2013 and December 2013.

15. The Tribunal considers that the valuations as at 31 December 2012 and 31 December 2013 are reliable figures such that they can be relied on in assessing the net value of the assets for the respective assets as at 20 March 2013 and 19 March 2014 respectively, and in the 12 month period between 20 March 2013 and 19 March 2014. Therefore, the Tribunal finds that as at 20 March 2013 the net assets of the primary applicant and Mr Mubashir was valued at $319,573 (including business and personal assets). The Tribunal finds that the primary applicant and Mr Mubashir had net assets of $264,292 (including business and personal assets) as at 19 March 2014. The Tribunal is satisfied that the primary applicant and Mr Mubashir held net assets in excess of $250,000 in the relevant 12 month period between 20 March 2013 and 19 March 2014. Therefore, the Tribunal is satisfied that the applicant meets the requirement in cl.892.212(b). Further, in light of the findings above regarding the net value of assets owned by the primary applicant and Mr Mubashir in the business (including the loans to the business), the Tribunal is satisfied that the primary applicant meets the requirements in cl.892.212(c).

16. Therefore the Tribunal finds that the primary applicant meets the requirement in cl.892.212.

17. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 892 visa.

18. In relation to the secondary applicants, the Tribunal considers that as the Tribunal has found that the primary applicant meets the primary criteria in cl.892.212 it is appropriate to remit the visa application by the secondary applicants for reconsideration.

    DECISION

19. The Tribunal remits the application for a Business Skills (Residence)(Class DF) visas by the applicants for reconsideration, with the direction that the primary visa applicant meets the following criteria for a subclass 892 visa:

    ·Cl.892.212

    Miriam Holmes
    Senior Member

    
    

    Annexure

    cl.892.212 provides:

    Unless the appropriate regional authority has determined that there are exceptional circumstances, the applicant meets at least 2 of the following requirements:

    a)in the period of 12 months ending immediately before the application is made, the in Australia, or main businesses in Australia, of the applicant, the applicant’s or , or the applicant and his or her spouse or de facto partner together:

    (i)provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 1 full-time employee over that period of 12 months; and

    (ii)provided those hours of employment to an employee, or employees, who:

    A.    were not the applicant or a of the applicant; and

    B.    were Australian citizens, Australian permanent residents or New Zealand passport holders;

    b)the business and personal assets in Australia of the applicant, the applicant’s or , or the applicant and his or her spouse or de facto partner together:

    (i)have a net value of at least AUD250 000; and

    (ii)had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the application is made; and

    (iii)have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together;

    (c)the assets owned by the applicant, the applicant’s or , or the applicant and his or her spouse or de facto partner together, in the or main businesses in Australia:

    (i)have a net value of at least AUD75 000; and

    (ii)had a net value of at least AUD75 000 throughout the period of 12 months ending immediately before the application is made; and

    (iii)have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.