1416626 (Migration)

[2015] AATA 3359

1416626 (Migration) [2015] AATA 3359 (2 September 2015)

DECISION RECORD

DIVISION:  MIGRATION & REFUGEE DIVISION

APPLICANTS:  Ms Siew Yin Hew

Yee Yoke Yuen

Yee Ying Fang

MRT CASE NUMBER:  1416626

DIBP REFERENCE(S):  CLF2014/116693 CLF2014/46200 CLF2014/46202

TRIBUNAL MEMBER:  Mary-Ann Cooper

DATE:2 September 2015

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 criterion for a subclass 892 State/Territory Sponsored Business Owner (Residence) visa:

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

The Tribunal does not have jurisdiction in relation to the second and third named applicants

Statement made on 02 September 2015 at 10:42am

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 17 September 2014 to refuse to grant the visa applicants a Business Skills (Residence) (Class DF) Subclass 892 visas under s.65 of the Migration Act 1958 (the Act).

2.The visa applicants applied for the visa on 24 March 2014. The delegate refused to grant the visas on the basis that cl.892.211 of Schedule to the Migration Regulations 1994 (the Regulations) was not met because she was not satisfied that the first named review applicant (the applicant) had and continued to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application was made.

3.The applicant appeared before the Tribunal on 5 May 2015 to give evidence and present arguments. The Tribunal also received oral evidence from one of her employees. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4.The applicants were represented in relation to the review by their registered migration agent. Counsel for the applicants attended the Tribunal hearing.

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

Jurisdiction

6.A threshold issue arose regarding the Tribunal’s jurisdiction in respect of the second and third named applicants. Specifically, that the second named review applicant was absent from Australia at both the time of the visa application and review application and the third named applicant was not in Australia at the time of the review application.  It was put to the applicant at hearing that by operation of s.347(3), the Tribunal may not have jurisdiction in relation to them as they were outside the migration zone at the time of the application to the Tribunal. In a later submission, the applicant did not dispute this assessment.

7.The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) in relation to the first and third named applicants and s.338(7A) in relation to the second named applicant. The Tribunal finds that the first named applicant (the applicant) has made a valid application for review under s.347 of the Act. The Tribunal finds it does not have jurisdiction in relation to the second and third named applicants given that they were both outside the migration zone at the time of application to the Tribunal. They therefore, respectively, do not satisfy s.347(3A) and s.347(3) the Tribunal finds that the second and third named applicants have not made a valid application for review under s.347 of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

8.The issue in the present case is whether at the time of application the review applicant met the requirements of cl.892.211(1) of Schedule 2 to the Regulations.

9.Clause 892.211 of Schedule 2 to the Regulations provides as follows:

(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.

10.Regulation 1.03 provides that "ownership interest" has the meaning in s134(10) of the Act which states that, in relation to a business, it means an interest in the business as:

(a)      a shareholder in a company that carries on the business; or

(b)      a partner in a partnership that carries on the business; or

(c)      the sole proprietor of the business;

including such an interest held indirectly through one or more interposed companies, partnerships or trusts;

11.Regulation 1.03 states that the term “main business” has the meaning set out in r.1.11. Regulation 1.11 states:

(1) For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:

(a)      the applicant has, or has had, an ownership interest in the business; and

(b)      the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and

(c)      the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:

(i)      if the business is operated by a publicly listed company — at least 10% of the total value of the business; or

(ii)      if:

(A)      the business is not operated by a publicly listed company; and

(B)      the annual turnover of the business is at least AUD400 000;

at least 30% of the total value of the business; or

(iii)      if:

(A)      the business is not operated by a publicly listed company; and

(B)      the annual turnover of the business is less than AUD400 000;

at least 51% of the total value of the business; and

(d)      the business is a qualifying business.

(2)      If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.

12.The term “qualifying business” is defined in r.1.03 of the Regulations to mean an enterprise that:

(a)     is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and

(b)     is not operated primarily or substantially for the purpose of speculative or passive investment.

13.The applicants lodged the visa applications on 24 March 2014. Therefore, the relevant two year period is 24 March 2012 to 23 March 2014.

14.The applicant claims for the purposes of her visa application that Mega 168 Pty. Ltd. is an actively operating main business in which she has an ownership interest.

15.The delegate noted that the ownership evidence provided consisted only of the share agreement, that the franchise agreement had not been provided and the lease agreement was signed by one of the former directors. Consequently s/he was not satisfied that applicant had an ownership interest in the business for purposes of cl.892.211(1). Further, the delegate considered r.1.11(b) and found that the available evidence did not support a conclusion that the applicant 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 during the relevant two year period, that is, 24 March 2012 to 23 March 2014. Consequently the visa applications were refused.

16.Prior to the hearing the applicant’s counsel provided a written submission and additional documents as follows:

·Franchise agreement between Wild Retail Group Pty Ltd and Mega 168 Pty. Ltd, listing the applicant as “Principal” and Ai Leah Ng as the guarantor.

·Franchise renewal offer sent by email from WH Smith (Wild Cards & Gifts) to the applicant and Chwee Lai Yap (undated).

·Supply agreement with Hallmark cards dated 24 February 2015 signed by the applicant and Leah-Ng.

·Letter from John Sands to the applicant advising that it has been notified of the change of franchisor and advising the impact on accounts.

·Email from John Sands to applicant.

·Correspondence from Ms Alice Ng @ Ng Ai Leah stating that she has 50% of the shares in the applicant’s business and has not participated in managing it since the review applicant became Director and Store Manager in December 2011. She stated that she had remained working as a customer service associate for 3-5 days per week when required however has frequently travelled overseas and does not manage the business on those occasions.

·Lease renewal correspondence sent to the applicant.

·Email to applicant regarding March 2015 franchisees conference. Various photographs and documents  demonstrating applicant’s attendance at conferences.

·Accountant’s letter dated 30 April 2015 stating that he meets regularly with the applicant regarding BAS and other financial statements and discusses the company’s general performance.

17.It was submitted that the applicant’s franchise is governed by an agreement dated 17 October 2010 and it was the standard agreement used for the Kenny’s Cardiology franchise. Following the takeover of the franchisor in 2014 ‘all franchisees signed the agreement with Wild inserted as the new franchisor but with the rest of the agreement, including the date, remaining unchanged.’ On the basis of the ASIC extract, share purchase agreement and financial statements provided, it was contended that the applicant had acquired and has maintained an ownership interest in the business since 2011 and therefore s134(10)(a) and r.1.11(1)(a) were met.

18.In relation to the requirement of maintaining a direct and continuous involvement in management of the business day to day and in making decisions that affect the overall direction and performance of the business, the submission relied on the large amount of documentary evidence provided to the Department. The degree of franchisor control is acknowledged however it is maintained that the franchisee is able to hire and fire staff, choose their own bank and credit card facilities, and select cards and giftware. The submission also notes that the applicant has not been absent from the business in relevant period. The tasks undertaken by the applicant are listed to include overall management of daily operations and performance of the business, recruiting, managing and motivating of employees, purchases, stock orders and stock control, office management, working and negotiating with suppliers, developing relationships with suppliers and clients, directing display of merchandising, managing and controlling cash flow, banking, monitoring costs to ensure the business remains within budget, negotiating retail pricing and working closely with the company accountant to forecast revenue and profitability.

19.The submission also relied on the Full Federal Court decision in Lobo v MIMIA [2003]FCAFC 168; (2003) 132 FCR 93 in which the Court found that, while that applicant’s husband was responsible for the overall direction of the business, his wife made significant decisions about staffing, payroll and leasing arrangements for the purposes of satisfying the criterion of direct involvement.

20.The submission acknowledged that the applicant works ‘within the confines’ of the franchise agreement, and consults with the co-owner, Ms Ng, however she has total responsibility for the actual running of the business.

21.At the hearing the applicant confirmed that she maintains a 50 % shareholding in Mega 168 Pty Ltd, trading as Kenny’s Cardiology Water Gardens and for the purposes of the application, this was her ‘main businesses’. She said that the business was registered on 24 May 2010 and that she had purchased her shares from Mr. Yap on 30 December 2011. The Tribunal noted that the shareholder ownership seemed to be a revolving door with one of the shareholders, her friend Ms Ng, having sold her shares in July 2013 but had since repurchased them. The Tribunal asked the applicant if she could explain this exchange but she claimed to be unaware of the reasons for it. The Tribunal noted that the other 50% shareholders in the business at the relevant two year period (2012-2014) had been Ms Ng and Mr Tudo and asked what their roles were and how the roles of each director were defined in terms of the overall direction and performance of the business. She claimed that since she has been director, the other directors have had other jobs and left the running of this business to her. The Tribunal noted that Mr. Tudo was listed in her organisation chart as the business Accountant and that, on the basis of several documents before the Tribunal, Ms Ng also seemed to maintain an active engagement  in the business. The applicant said that Ms Ng often went to Malaysia and would provide assistance at the shop when she returned to Australia. The Tribunal asked the applicant if she had derived any income from the business at the relevant times and she responded that she had only taken director dividends.

22.The Tribunal asked the applicant to describe the business transactions in which she had been involved on behalf of the company. In her response she gave details of the various trade fairs and conferences she had attended. The Tribunal asked what systems she had put in place. The applicant stated that when she started she was trained by Ms Ng and that she also gained knowledge and experience from the staff. She said that she runs the business and employs the staff, promotes the business and negotiates with lots of suppliers during trade fairs. She acknowledged the role of the franchisor’s Operations Manual in her conduct of the business but maintained she had significant freedom in certain areas.

23.When asked how she recruited staff, she told the Tribunal that people come into the shop and drop off their resumes. She said she then considers them, rings up referees if provided, and selects appropriate staff. She said the number of employees varies, depending on whether it is low or peak season. From her responses, the Tribunal understands that all the staff are casual employees.  The Tribunal asked her how she determined the appropriate terms and conditions of employment and she responded that she gets this information from Fair Work. Payslips were later provided to the Tribunal, for the relevant period, demonstrating the applicant’s signature. When asked what employee records were kept, she said she keeps payroll and roster records.

24.The applicant provided clear responses to questions relating to the shop’s landlord, the amount of the rent and how often it was paid. She was also aware of the royalty fees paid to the franchisor, the amount and how often they are paid.

25.The Tribunal then took the applicant to the franchise agreement, noting that its terms indicated that the franchisor retained a great deal of control over the running of the business. Initially it raised questions regarding the changes of ownership of the franchisor and the currency of the agreement before the Tribunal which the applicant was unable to answer, stating that Ms Ng knew of all the documentation and arrangements in this regard. As these matters occurred sometime before the applicant’s active participation in the business the Tribunal places little weight on her lack of knowledge in this regard. Documents later provided indicated that the agreement had remained current notwithstanding these changes to the franchisor identity.

26.The Tribunal noted that the franchise agreement requires the nomination of a Principal who is regarded as having effective control of the franchise and who plays a fulltime role in the operation and management of the business unless otherwise agreed in writing by the franchisor  (para 6.1.1 – 6.1.2). The Tribunal noted that the applicant is currently nominated as the Principal but asked the applicant who had been the Principal during the relevant period 3/2012 to 3/2014. Following several attempts at eliciting a response, the applicant said she thought that Alice Ng and Mr Yap would have been the responsible persons in this regard. Later documents provided by the applicant’s representative relating to the original franchise deed of October 2010 appeared to confirm this. On the basis of the oral and documentary evidence that the terms of the agreement did not change throughout the relevant period, only the franchisor names had changed, the Tribunal asked the applicant several questions about its content. The Tribunal noted that a business plan and budget was required to be provided annually. The applicant was asked who prepared these plans. She responded that this is a small retail business and she did not do this planning but that Ms Ng helped her and the accountant did the finances. She maintained that she was in charge and paid the required fees to the franchisor and that she followed the Operations Manual provided by the franchisor. The Tribunal later received a copy of the relevant business plans.  

27.The Tribunal observed that the agreement did not allow for much discretion on the applicant’s part in managing and directing the business and asked her to comment. She responded that her partner, Ms Ng is the person who arranged the franchise agreement and knows its details, that her role is to make sure the business runs well and the required payments are made. The Tribunal asked what decisions she made in 2012-2014 which affected the overall direction and performance of the business. She responded by giving a detailed account of how she managed and  delivered customer service and loyalty programs, budgeting,  marketing, competition and promotion, stock selection and employee management. She said that her co-owner Ms Ng looked after all the documentation relating to the franchise, that she runs the business. She claimed that she is the one with the knowledge of the store and how it functions.

28.The Tribunal then spoke to the witness. She said she had worked for about 7 years with Kenny’s Cardiology as a ‘permanent’ casual and with the applicant for over 2 years. She said since the applicant started in business she has been very active and engaged. When asked what she had observed, she said the applicant serves customers, sees representatives, does banking and is in charge of the staff.  Given the prominence which Ms Ng had had in the applicant’s evidence, the Tribunal asked the witness about her role in the shop. She said that she does what the applicant does. She said that the applicant works hard and that she loves working in the shop and makes sure it is a pleasant place to work and shop.

29.In conclusion, the applicant’s counsel submitted that the applicant had been very nervous and sometimes goes ‘blank’ and reminded the Tribunal that English was her second language. She acknowledged that franchises are generally highly controlled and their attraction to a business purchaser was their proven brand, but ultimately the operation of the business depended on individual effort. In this case the agreement provided the franchisee with discretion to choose the quality and price of goods purchased and discretion in discounting.  In addition, as demonstrated by letters of offer provided, applicant was responsible for the hiring of staff. It was further submitted that running the shop did not require an expert and that the applicant had used her own initiatives to attract staff and implement several different marketing strategies in the shop and that she had made the shop unique by her implementation of various initiatives.

30.Following the hearing the applicant’s representative provided further documentation demonstrating that the previous owners Ng and Yap had negotiated a franchise agreement with Allied Brands which was to commence in October 2010 however Allied Brands went into receivership. TIS Logistics then took over and it was business ‘as usual’ until WH Smith took over in October 2014 and a new franchise agreement was signed. As confirmed by the documents provided, the applicant had purchased her shares in Mega 168 Pty. Ltd. in December 2011 and had simply continued with the arrangements already in place. A statutory declaration was also provided from Ms Ng explaining that she sold her shares on 2 July 2013 to Tudo to obtain funds for the conduct of litigation for another of her businesses and repurchased them from Tudo on the sale of one of her properties. The representative’s submission states that Tudo never had an active role in running the business. It is further contended, noting that retail business is not particularly complex,  that the applicant is a hands-on manager who has demonstrated her strengths in customer relations, stock selection and customer loyalty and is essential to the business’ success. In relation to managerial discretion in a franchised business, it is further contended that the evidence demonstrated that the applicant has the freedom to select stock , giftware, create giftware packages, introduce customer loyalty initiatives, and that her  active role in the business was confirmed by the witness. The Tribunal’s lack of jurisdiction in respect of the secondary applicants was acknowledged.

Ownership interest

31.As stated above, the term “ownership interest” in cl.890.211(1) is defined in regulation 1.03. The Tribunal has had regard to the ASIC historical extract dated 13 August 2014, which indicates that the review applicant was appointed a director of the main business on 30 December 2011 and holds fifty thousand fully paid shares of the 100,000 shares issued. The Tribunal therefore finds that the review applicant is a 50% shareholder in Mega 168 Pty. Ltd., which is the company the review applicant claims carries on the relevant business.

32.Accordingly, the Tribunal finds, for the purposes of cl.890.211(1), that the review applicant has an “ownership interest” in Mega 168 Pty. Ltd. as defined in reg.1.03 and s.134(10).

Regulation 1.11(1)(a) and 1.11(1)(c) 

33.Regulation 1.11(1)(a) requires that the applicant has, or has had, an in the business; and reg.1.11(1)(c) relevantly requires that the value of the applicant's ownership interest, or the total value of the ownership interests of the applicant, and the applicant's spouse or de facto partner, in the business is or was at least 30% of the total value of the business where it is not a publicly listed company and its annual turnover is at least $AUD400,000.

34.The Tribunal refers to its finding above that the applicant has an ownership interest in Mega 168 Pty Ltd. Based on that finding the Tribunal finds that the applicant meets the requirements of reg.1.11(1)(a).

35.Based on documents on the Departments file demonstrating an annual turnover of over $400,000 and the ASIC historical extract, which demonstrates that the value of the applicant’s ownership interest is 50% of the issued shares, the Tribunal is satisfied that the applicant meets the requirements of reg.1.11(1)(c).

Regulation 1.11(1)(d)

36.Regulation 1.11(d) states that to be a ‘main business’, a business must be a ‘qualifying business’. A “qualifying business” is defined in r.1.03 of the Regulations to mean ‘an enterprise that is operated for the purpose of making profit through the provision of goods and/or services (other than the provision of rental property) to the public and is not operated primarily or substantially for the purpose of speculative or passive investment’.

37.The applicant’s claimed main business is a retail card and gift shop operating in a shopping complex. As such it is evident, and the Tribunal finds, that it provides goods to the public. The terms of the franchise agreement make it clear that the purpose of the venture is to make a profit not just for the franchisee but also for the franchisor.

38.The enthusiasm of the applicant when giving evidence about the operation of the shop and the initiatives she has developed and implemented persuades the Tribunal that the business was not at the relevant time operated for the purpose of speculative or passive investment.

39.Considering the evidence as a whole, I am satisfied that the business was operated for the purposes of making profit from the provision of goods or services to the public over the relevant period.

40.The Tribunal therefore finds that the applicant’s business, Mega 168 Pty. Ltd., is a ‘qualifying business’ as defined and r.1.11(1)(d) is met.

Regulation 1.11(1)(b)

41.Regulation 1.11(1)(b) requires that the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business

42.Departmental guidelines (PAM3) state that to meet the requirement for direct and continuous involvement in management the applicant must demonstrate that they have exercised responsibility within the business/es in terms of decision-making authority and in setting strategic direction of the business; such responsibility has been exercised on a continuous and daily basis as opposed to occasional; their skills have been fundamental to, or have exerted direct influence on, the operation of the business/es; and they have a specific and identifiable role in the business: PAM3, Div 1.2 Interpretation r.1.11 – Main Business at [26].

43.The Tribunal acknowledges that PAM3 cannot and should not be raised to the level of legislative requirement and findings should always be brought back to the terms of r.1.11(1)(b). In this context the Tribunal has had regard to the individual circumstances of the applicant, the documentary and oral evidence provided, the submissions made and to relevant case law.

44.The Tribunal accepts that there are a variety of ways in which a person might maintain direct and continuous involvement in the management of a business and in making decisions affecting its overall direction and performance: Lobo v MIMA [2003] FCAFC 168 (French, Sackville, Hely JJ, 8 August 2003) at [63].

45.The Tribunal has also considered the decision of Commissioner for Corporate Affairs (Vic) v Bracht (1989) 7 ACLC 121 in which Justice Ormiston of the Victorian Supreme Court reasoned that “management” includes the following indicators:

a.activities which involve policy and decision making;

b.related to the whole or substantial part of the business affairs of a corporation;

c.to the extent that the formulation of those policies or the making of those decisions may have some significant bearing on the financial standing of the corporation or the conduct of its affairs.

46.In addition the Tribunal has considered the decision of Cullen v Corporate Affairs Commission (NSW) (1988) 14 ACLR 789, in which Justice Young of the NSW Supreme Court considered the issue of management of a corporation and noted:

... one looks to see somebody making decisions as to the direction of the corporation though one does not necessarily look for someone who is making decisions at the highest level, nor is it necessarily so that the manager's decision will not be subject to obtaining the approval of some higher officer.

47.The Tribunal has given particular consideration to the interpretation of the term “day-to-day management” in the decision of Re Lau & MIMIA (2002) AATA 703. That case involved the review of a decision to issue a Notice of Cancellation pursuant to section 134 of the Migration Act. In that decision, the AAT noted:

While some of the activities undertaken by the applicant might be viewed as unsophisticated, there is nothing to suggest that they were inappropriate for the nature of the proposed business ... the use of the term day-to-day management does not require that activity be recorded every day, and the input at a senior level by someone of the experience of the applicant will often be intangible.

1. Based on the submissions and documents provided by the applicant, and the evidence at hearing, for the reasons below, the Tribunal finds that the applicant maintains, or has maintained, direct and continuous involvement in the management of Mega 168 Pty. Ltd. from day to day and in making decisions affecting the overall direction and performance of that business for the relevant period.

2. The Tribunal accepts that the review applicant’s involvement was that of a 50% shareholder and registered director however it acknowledges that being a director of a company is an office and it does not necessarily indicate that a person is employed for pay or otherwise acts as a manager in that company. While it may be true that as a director the applicant signed documents on behalf of the company and paid money on behalf of the company, this does not necessarily mean that she was involved in making decisions about overall direction and performance. Furthermore the applicant gave evidence that she would defer to Ms Ng in respect of matters related to the specifics of the franchise agreement, which is the document which to a large extent governs the operation of the business. In this context however the Tribunal accepts the representative’s submissions that the review applicant need not demonstrate that she is the only manager of the business. The Tribunal has taken into account the fact that she is a co-director, with Ms Ng, and owns 50% of the company. The Tribunal therefore accepts that the applicant does not have to demonstrate that she has had 100% involvement in the management of the company and in setting its direction. She does, however, have to demonstrate that, in the relevant period, she maintained direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business. In this respect, she has provided the Tribunal with numerous documents relating to her engagement in operating the retail store the subject of the franchise agreement.

3. While the applicant demonstrated little knowledge of the specifics of the franchising framework within which the business operated, there is significant supported evidence that she maintains and has maintained direct and continuous involvement in the day to day management of the business and in making decisions which affected the overall direction and performance of the business. While some of the activities undertaken by the applicant might be viewed as unsophisticated, the Tribunal considers that they are entirely consistent with the nature of the business. The Tribunal accepts the supported evidence that she is responsible for the engagement of employees, the selection and ordering of stock, the development and implementation of promotions and introducing customer loyalty schemes. The Tribunal considers that this involvement is appropriately characterised as making decisions which affect the overall direction and performance of the business insofar as it relates to the type and level of customer service provided by the business, its local marketing an competition strategy and the nature and content of its workforce. While the applicant may defer on certain matters to Ms Ng, the Tribunal considers that this this does not derogate, on the basis of Lobo, from her role in establishing the company's goals and ensuring its commercial viability through her activities at the shop level.

4. Based on the claims and evidence overall, the Tribunal is satisfied that the skills of the applicant were and are fundamental to, or had a direct influence on, the operation of the of the company’s business, Specifically, that her influence and judgement were and are relied upon in running the business on a day-to-day basis in her specific and identifiable role in managing its operations at the shop level.

5. For the above reasons, the Tribunal finds that the applicant maintains, and has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business. On this basis the Tribunal finds that her business, Mega 168 Pty. Ltd., satisfies paragraph (b) of the definition of ‘main business’ in r.1.11(1).

6. On the basis of the claims and evidence, and the findings at paragraphs 32,34,35,40 and above, the Tribunal finds that the applicant has had, and continues to have, an ownership interest in 1 or more actively operating in Australia for at least 2 years immediately before the application was made.

7. The Tribunal is therefore satisfied that she meets the requirements of cl.892.211(1) of Schedule 2 to the Regulations.

   Conclusion

8. Given the findings above, the Tribunal concludes that the appropriate course of action is to remit this matter with the finding that the first named review applicant meets cl.892.211(1) of Schedule 2 to the Regulations.

9. For the reasons given above the Tribunal does not have jurisdiction in relation to the second and third named applicants.

   DECISION

10. 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 criterion for a subclass 892 State/Territory Sponsored Business Owner (Residence) visa:

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

11. The Tribunal does not have jurisdiction in relation to the second and third named applicants

    Mary-Ann Cooper
    Member