1416728 (Migration)

[2016] AATA 4569

1416728 (Migration) [2016] AATA 4569 (21 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr JIANG WANG
Mrs YING BAO
Miss JIAYING WANG
Miss JINGYING WANG

CASE NUMBER:  1416728

DIBP REFERENCE(S):  CLF2014/122582 CLF2014/49335

MEMBER:Antonio Dronjic

DATE:21 October 2016

PLACE OF DECISION:  Melbourne

DECISION:The tribunal remits the application for Business Skills (Residence) (Class DF) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass State/Territory Sponsored Business Owner (Residence) visa:

·cl.892.212 (b) and (c) of Schedule 2 to the Regulations;

·The tribunal does not have jurisdiction in respect of the second, the third and the fourth named applicants.

Statement made on 21 October 2016 at 2:43pm

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 October 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 March 2014. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl. 892.212 of Schedule 2 to the Migration Regulations (the Regulations).  

3. Clause 892.212 provides as follows:

   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.

4. According to the primary decision record submitted by the applicants with their review applications, there was no claim or evidence before the delegate that the appropriate regional authority (State Government of Victoria) has determined the existence of exceptional circumstances. Therefore, the applicants were required to meet at last two of the three requirements prescribed in Cl.892.212. There was no evidence or claims before the delegate relevant to cl.892.212 (a).

5. The relevant period for the purposes of cl.892.212 is from 27 March 2013 to 28 March 2014 (12 months ending immediately before the application is made). The nominating businesses are J & J Digital Security Pty Ltd and J & J Projects Pty Ltd.

6. The applicants lodged the review applications with this tribunal on 8 October 2014.

7. On 14 October 2013, the applicants’ representative submitted:

   ·Legal submissions stating that the applicant’s business and personal assets as of 31 December 2012 were $289,067 and $663,135 as of 31 December 2013. The representative attached to his submissions a document titled’ computation of business and personal assets’ (tribunal folio 98);

   ·The applicant’s Statement from ANZ Bank (on-line saver account) from November 2012 to February 2013 and from 16 December 2013 to 14 February 2014;

   ·The applicant’s Statement from Westpac account from 30 August 2013 to 11 September 2013 evidencing the deposit of $180,000 on 11 September 2013;

   ·Copy Certificate of Title for the Lot 60 produced on 4 October 2013 listing the mortgage from Westpac Bank;

   ·The applicant’s statements from Westpac Investment Loan (Rocket) offset account from 26 November 2013 to 26 May 2014;

   ·Copy fixed term deposit for the period of six months held at the Bank of China (Australia) evidencing the deposit of $83,486 for the period from 22 May 2013 to 22 November 2013;

   ·Copy fixed term deposit for the period of six months held at the Bank of China (Australia) evidencing the deposit of $81,436 for the period from 16 February 2012 to 16 August 2012;

   ·Copy fixed term deposit for the period of three months held at the Bank of China (Australia) evidencing the deposit of $81,856 for the period from 16 August 2012 to 16 November 2012;

   ·Copy fixed term deposit for the period of six months held at the Bank of China (Australia) evidencing the deposit of $82,019 for the period from 16 November 2012 to 16 May 2013;

   ·Copy contract of Sale of Real Estate for the property at Camberwell, Vic dated 9 January 2012, evidencing the purchase price of $806,300 and the deposit of $80,630;

   ·Copy financial statements for J & J Project Pty Ltd for the year ended 31 December 2013 (notes to the financial statements are evidencing a director’s loan made by the applicant in the amount of $156,136 and paid up share capital of $39,950);

   ·Copy letter from KST Chartered Accountants dated 3 March 2014 as confirmation that the applicant made a director’s loan of $156,136 to J & J Project Pty Ltd as of 31 December 2013;

   ·Untranslated document purporting to be acknowledgment of receipt of $110,000 by Zhou Jian from the applicant given via Miao 7 Pty Ltd (former name of J & J Digital Security Pty Ltd);

   ·Copy contact of sale for Toyota Prado that was purchased on 18 may 2011 for $57,888 and claimed to be used as a company car (NOTE - financial statements for J & J Project Pty Ltd for the year ended 31 December 2013 do not list this vehicle as a company’s asset).

8. On 1 June 2016, the tribunal wrote to the applicants to advice that the tribunal was unable to make a favourable decision on the material before it and invited the applicants to attend a tribunal hearing scheduled for 10 August 2016.

9. On 4 August 2016, the applicant submitted the following documents:

   ·Mr Wang’s written Statement dated 28 July 2016, claiming that:

   a)    his business assets as of 31 December 2012 were $80,154;

   b)    his personal assets were $174,239;; making the total of $254,393 of  business and personal assets as of 31 December 2012; and

   c)    total of his business and personal assets as of 31 December 2013 was $656,389

   ·Copy financial statements for J & J Project Pty Ltd for the year ended 30 June 2015;

   ·Copy financial statements for J & J Project Pty Ltd for the year ended 31 December 2013 (previously submitted to the tribunal)

   ·BAS Statements for J & J Project Pty Ltd for last quarter of 2015 and the first quarter of 2016;

   ·Company tax return 2015;

   ·The applicant’s statements from ANZ Bank (on-line saver account) from 23 May 2011 to 23 May 2012;

   ·the applicant’s statements from ANZ Bank (on-line saver account) from 16 November 2012 to 1 February 2014 (tribunal folios 201-219)

   ·Miao 7 Pty Ltd business cash management statements for the period from 23 February 2012 to 23 May 2013;

   ·Miao 7 Pty Ltd business cash management statements for the period from 23 May 2011 to 27 May 2013 (tribunal folios 247 to 268);

   ·The applicant’s Statement from ANZ Bank (access advantage cheque statement) from 16 May 2011 to 15 July 2011 evidencing a withdrawal of $55,890 on 20 May 2011;

   ·The applicant’s Statement from ANZ Bank (access advantage cheque statement) from 16 July 2013 to 16 September 2013;

   ·The applicant’s Statement from ANZ Bank (access advantage cheque statement) from 16 May 2013 to 16 July 2013;

   ·The applicant’s Statement from ANZ Bank (access advantage cheque statement) from 16 September 2013 to 15 November 2013;

   ·The applicant’s Statement from ANZ Bank (access advantage cheque statement) from 15 November 2013 to 16 January 2014;

   ·Copy receipt from Anying (Chinese currency exchange business) dated 18 March 2013 as evidence that the amount of $76,534 was transferred to the applicant’s ANZ Bank account in Australia;

   ·Bach of ANZ Bank receipts as evidence that the following amounts were deposited in the applicant’s ANZ account during the relevant period from 27 March 2013 to 28 March 2014:

   15 May 2013               amount of $48,461;
   17 May 2013               amount of $31,615
   7 June 2013               amount of $9,994;
   21 June 2013             amount of $13,998;
   27 December 2013     amount of $39,994;
   6 January 2014          amount of $1,794;
   28 March 2014           amount of $9,982;

   TOTAL  $155,838

   ·In addition the applicant submitted:

   Seven receipts related to deposits made into his ANZ account in 2011, totalling $139,491;

   Five receipts for deposits made in 2012 totalling $48,582

   Five receipts for deposits made from June 2014 totalling $73,224

   ·Summary of the applicant’s assets and liabilities (tribunal folio 221) as of 31 December 2012 and 31 December 2013;

10. The first named applicant (thereafter the applicant) appeared before the tribunal on 10 August 2016 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant confirmed that he was having no difficulty in understanding the interpreter.

11. At the commencement of the hearing, Mr Wang submitted his written statement outlining the history of his business activities in China and Australia.

12. The tribunal began the hearing by explaining its role and the purpose of the tribunal hearing. The tribunal informed the applicant that the reason why the delegate refused to grant the applicants visas was because that delegate was satisfied that the applicant met cl.892.212 of Schedule 2 to the Regulations. I explained the requirements of cl.892.212 and noted that the relevant period for the purposes of satisfying this criterion was from 27 March 2013 to 28 March 2014.

13. The tribunal explained the reasons for its preliminary view that it does not have jurisdiction in respect of the second named applicants.   

14. The applicant is 38 years of age national of China. He is married and has two children. He first arrived in Australia in May 2011 as a holder of a subclass 163 visa which remained valid until 29 January 2016.

15. Mr Wang stated in his evidence that, for the purposes of the current visa application, he nominated two businesses in the application form. J & J Digital Security Pty Ltd and J & J Projects Pty Ltd.

16. J & J Projects Pty is assisting its clients to find suitable land, design and construct a house. The clients would purchase land under their own name and the company will provide additional advice and services if requested. J & J Projects Pty Ltd employs four full time employees. The applicant gave evidence that he was a member of a cigar club in Shanghai and is using his contact to introduce the new clients from China to J & J Projects Pty.

17. J & J Digital Security Pty Ltd turnover in 2015/16 financial year was approximately $300,000. This business supplies and installs security cameras and systems into residential and commercial premises. J & J Digital Security Pty Ltd currently employs two employees.

18. Both companies are currently located at CBD (Lt Collins Street). These premises were purchased in July 2014 for $295,000. The applicant paid half of this amount and the other company director paid the rest. The premises are registered under the applicant (and other director’s name) and not under the company’s name. The applicant is not employed by either of the two companies and is not receiving wages.

19. J & J Digital Security Pty Ltd was registered in May 2011 and the applicant was the sole shareholder and director of this business. It was originally registered under the name of Miao 07 and the name was later changed to J & J Digital Security Pty Ltd. He stated that he invested $80,154 into this company. He gave evidence that he deposited $15,000 into the company’s bank account and purchased (in cash) a company motor vehicle (on 18 May 2011) for $57,880. The motor vehicle was purchased and registered under the company’s name. The business sold this vehicle in August 2014. I requested that the applicant provide market valuation for that vehicle during the period from 27 March 2013 to 28 March 2014.

20. The applicant stated that, when the business purchased a new car in August 2014, they traded in the old car and received the amount of $54,000 at Toyota dealership or the old car. I requested documentary evidence confirming this transaction.

21. I also requested evidence that the money the applicant deposited in J & J Digital Security Pty Ltd account in 2011 remained in the company’s bank account during the relevant period from 27 March 2013 to 28 March 2014. The applicant confirmed that he did not invest money in J & J Digital Security by way of advancing a directors loan to the company.

22. The applicant stated that he invested $60,000 in J & J Projects Pty Ltd by purchasing shares on 1 January 2013. He confirmed that he holds 54% shares of this business.

23. I noted that the applicant provided a list of transactions related to transferring the total amount of $156,136 to J & J Projects Pty (tribunal folio 20). He confirmed that he commenced transferring funds in July 2013. I again explained the requirement that he held business assets from March 2013 to March 2014. I observed that the evidence indicate that he started transferring money to J & J Projects Pty only in July 2013 and that I do not have evidence of his business assets in J & J Projects Pty from Match 2013 to July 2013.

24. The applicant reiterated that he purchased shares on 1 January 2013 and deposited the amount of $59,966 to J & J Projects Pty account. I requested that he provide documentary evidence that will substantiate this claim.

25. I further noted that he claimed that he invested $156,136 in J & J Projects Pty by way of director’s loan and that this is supported in the company’s financial statements. I explained the difference in investing in the business by purchasing its shares as opposed to investing in a business by way of directors’ loan. The applicant did not appear to understand the difference.

26. I noted that the applicant provided a letter from KST Partners (accounting firm) dated 3 March 2014 as evidence that he made a directors’ loan to J & J Projects (tribunal folio 20). I further noted that the company’s financial statements are provided as evidence of the directors’ loan advanced by the applicant to the company of $156,136. I requested a copy of the directors’ loan agreement.

27. I noted that he intends to rely on a loan of $110,000 he advanced to a person named Zhou Jian in April 2012 and inquired about the nature of his relationship with Mr Jian. The applicant explained that this person used to be a shareholder of J & J Projects. At the time the company intended to acquire some land but they did not have sufficient funds so the applicant provided a loan to Mr Jian. He was informed that the money landed to Mr Jian will be used for payment of his shares in J & J Projects Pty. He stated that he provided minutes from J & J Projects Pty board meeting in support of this claim.

28. I noted that he has failed to provide written loan agreement with Mr Jian that would comply with the Australian laws and regulations. The document provided indicates that the company accepts the assignment of debt in the amount of $110,000. He stated that this was the way the business is conducted in China.

29. I noted that his former representative (who was subsequently suspended from working as a migration agent) failed to properly advice the applicant. The applicant stated that at the time, his understanding was that he purchased company’s shares. During the course of the hearing it became obvious that the applicant does not understand the basic concepts of what are considered to be the business and personal assets in Australia. Despite submitting the large volume of documentary evidence to the department and the tribunal, most of which is irrelevant to the issue before me, his former migration agent has failed to properly advice the applicant or address the criteria relevant to the current review.

30. I granted the applicant additional month to submit further documentary evidence to the tribunal and strongly suggested that he consults a legal practitioner who specialise in this area of law.

31. On 16 August 2016, the applicants’ newly appointed migration agent requested and the tribunal granted an extension of time until 17 September 2016 to provide submissions and documentary evidence requested by the tribunal at the hearing.

32. On 2 September 2016, the applicants’ representative requested and the tribunal granted a company motor vehicle (on 18 May 2011) for $57,880. further extension of time to provide requested documents and submissions.

33. On 23 September 2016, the applicants’ representative provided the following relevant documents:

    ·Legal submissions (tribunal folios 614-619) stating that financial reports provided by the applicant’s former accountants were incorrect; that the applicant engaged another accounting firm to conduct the independent review and reconcile and amend financial reports from 2013 to 2016 financial years. It was submitted that the applicant’s combine personal and business assets during the period from 27 March 2013 to 28 March 2014 had a net value of $375,746 (on 27 March 2013) and $1,029,982 as of 28 March 2014. It was further submitted that the net value of the applicant’s business assets were $101,650 as of 28 March 2013 and $373,134 as of 28 March 2014;

    ·Statement of assets and liabilities of Mr Wang as at 28 March 2013 and 28 March 2014 prepared by F S Lum & Co Chartered Accountants (tribunal folio 613) together with the documentary evidence substantiating the statement (tribunal folios 354-612)

34. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

35. The issue in the present case is whether the applicant satisfy cl. 892.212 of Schedule 2 to the Regulations which requires the applicants to satisfy two out of the three criteria in subclauses (a), (b) and (c) unless the appropriate regional authority (State Government of Victoria) has determined that there are exceptional circumstances. There is no evidence before the tribunal that the appropriate regional authority made such determination.

36. The applicant never claimed or presented relevant evidence related to employment of Australian citizens, Australian permanent residents or New Zealand passport holders. Accordingly, based on the evidence before me I am not satisfied that they are able to meet cl.892.212 (a).

    Net value of business assets

1. Cl.892.212(c) prescribes that 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

2. As previously noted, the applicant nominating two main businesses - J & J Digital Security Pty Ltd and J & J Projects Pty Ltd.

3. Based on the Statement of Financial Position for J & J Digital Security Pty Ltd as at 28 March 2014, the applicant advanced a director’s loan of $75,783 in 2013 and a director’s loan of $147,959 in 2014. These two loans are sufficient to satisfy cl.892.212(c).

4. In addition, the applicant provided the Statement of Financial Position for J & J Project Pty Ltd as at 28 March 2014, as evidence that the applicant advanced a director’s loan of $185,781.

5. With the review application, the applicant submitted Statement of Assets and Liabilities prepared by F S Lum & Co Chartered Accountants covering the 12 months period before the visa application (28 March 2013 to 28 March 2014).

6. Based on documentary evidence provided in support of this Statement I am satisfied that the net value of the applicant’s business assets were $101,650 as of 28 March 2013 and $373,134 as of 28 March 2014.

7. Having regard to this evidence provided to the tribunal, as well as relevant evidence on the Departmental files, I am satisfied that the assets owned by the applicant, in the main businesses in Australia have a net value of at least AUD75 000 and had a net value of at least AUD75 000 throughout the period of 12 months ending immediately before the application is made.

8. There is no evidence before me to indicate that these assets have been unlawfully acquired by the applicant and I am satisfied that the relevant assets of the applicant have been lawfully acquired.

9. It follows that the applicant meets the requirements of cl.892.212(c).

   Net value of business and personal assets in Australia

10. Cl.892.212(b) prescribes that 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;

11. Based on the Statement of Assets and Liabilities prepared by F S Lum & Co Chartered Accountants covering the 12 months period before the visa application (28 March 2013 to 28 March 2014 and documentary evidence submitted in support of this document, I am satisfied that applicant’s combined personal and business assets during the period from 27 March 2013 to 28 March 2014 had a net value of $375,746 (on 27 March 2013) and $1,029,982 as of 28 March 2014.

12. There is no evidence before me to indicate that these assets have been unlawfully acquired by the applicant and I am satisfied that the relevant assets of the applicant have been lawfully acquired. It follows that the applicant meets the requirements of cl.892.212(b).

    Tribunal’s lack of jurisdiction in respect of the second the third and the fourth  named applicants

13. Based on the departmental records the tribunal finds that the second, the third and the fourth named applicants were not physically present in the migration zone at the time of the review applications. As the tribunal reviewable decision is covered by s 338(7A), an application for review may only be made by a non-citizen who is physically present in the migration zone at the time the delegate’s decision was made and at the time when the application for review is made as per s.347(3A) of the Act. Accordingly the tribunal has no jurisdiction to review the applications in respect of the second, the third and the fourth named applicants.

    DECISION

14. The tribunal remits the application for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass State/Territory Sponsored Business Owner (Residence) visa:

    ·cl.892.212 (b) and (c) to the Regulations.

    ·Tribunal has no jurisdiction to review the applications in respect of the second, the third and the fourth named applicants.

    Antonio Dronjic
    Member