1417586 (Migration)

[2015] AATA 3052

1417586 (Migration) [2015] AATA 3052 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Iurii Beznosiuk
Mrs Olena Nikitina

CASE NUMBER:  1417586

DIBP REFERENCE(S):  clf2014/142365 CLF2014/61626

MEMBER:Nicole Burns

DATE:7 July 2015

PLACE OF DECISION:  Melbourne

DECISION: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 890 (Sponsored Business Owner) visa:

· cl.890.214 of Schedule 2 to the Regulations.

Statement made on 07 July 2015 at 10:02am

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 24 October 2014 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 2 May 2014. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl.892.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Specifically the delegate was not satisfied that in the 12 months before the date of application, the applicant’s main business had employed the equivalent of 2 full time employees.

3. The applicants appeared before the Tribunal on 8 May 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s accountant, Mr Alex Bezhenar, the applicant’s wife, Mrs Olena Nikitina, and the applicant’s daughter, Ms Viktoria Nikitina. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

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

5. During the course of the review the representative has provided a written submission and supporting documents which the Tribunal has taken into account in reaching its decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets cl.890.214 which is set out below:

   890.214

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

   (a)      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 2 full-time employees over that period of 12 months; and

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

   (i)      were not the applicant or a member of the family unit of the applicant; and

   (ii)      were Australian citizens, Australian permanent residents or New Zealand passport holders.

8. The applicant has nominated Intecolux Pty Ltd as the main business (the business). The business is a window manufacturing workshop located in Braeside, Victoria.  The applicant claims that it has employed the equivalent of two Australian citizens/permanent residents in the relevant period.  As evidence of this claim the applicant provided the Department with a Business Activity Statement (BAS) for the last quarter of the 2012-2013 financial year; PAYG summary for one employee (Sergiy Tsimidanov); payslips for four employees; superannuation information for four employees; and a certificate of currency. 

9. The delegate was not satisfied that the business had employed at last two full time employees for that period because the BAS provided recorded only $3,801 against total salary, which she calculated was insufficient for the employees to have worked full time (i.e. a minimum of 30 hours per week) during that period; because no evidence was provided of two of the employees receiving a superannuation contribution for the period of 1 July 2013 to 30 September 2013; because she discounted the evidence provided regarding the superannuation contribution for another employee (Alexander Bezhenar) because the letter was not on letterhead and she had concerns about the signature on the letter; and finally, because the certificate of currency provided does not state the number of employees. 

10. The concern the delegate expressed about the superannuation contribution for Mr Bezhenar were discussed at the hearing.  The applicant (and Mr Alexander Bezhenar) in their oral evidence to the Tribunal confirmed that Mr Bezhenar has a self-managed superannuation fund (“AAAL Superfund”) and that the applicant made regular contributions to that fund during the relevant period, as he did to the industry superannuation funds for his other employees.  He explained that because the fund is self-managed, not an incorporated entity, the letter, signed by a registered accountant (James Bezhenar) is not on letterhead.  He also explained that James Bezhenar is the brother of Mr Alexander Bezhenar; so a different person.  The applicant provided to the Tribunal a letter from the Australian Taxation Office confirming the superannuation arrangements for Mr Bezhenar and on this basis, as well as the applicant’s and Mr Bezhenar’s oral evidence on this matter, the Tribunal accepts that is the case.

11. With respect to the delegate’s concerns about the lack of evidence of superannuation contributions provided for two employees from 1 July 2013 to 30 September 2013, the representative submits that they are unsure why the relevant superannuation fund for these employees (REST) provided incorrect dates.  Nonetheless, he submits that the payslips for the employees during this period record the total amount of superannuation that was paid and when assessed with the PAYG summary together with the BAS statements indicates the total amount of superannuation paid for those two employees is correct for that period. 

12. The Tribunal finds that the application was lodged on 2 May 2014.  For the purpose of cl.890.214, the relevant 12 month period is 2 May 2013 to 2 May 2014. This covers the 2012/2013 and 2013/2014 financial years.

13. At the Tribunal hearing the applicant clarified that he employed four employees during the relevant period as follows:

    ·Sergiy Tsimidanov from 1 April 2013 to 30 June 2013

    ·Victoria Sahnovski from 1 July 2013 to 31 March 2014

    ·Igor Sahnovski from 1 July 2013 to 31 March 2014

    ·Alexander Bezhenar from 1 July 2013 to 30 April 2014

14. The applicant said apart from Mr Bezhenar, who is responsible for accounts and financial management, the other employees worked in the workshop assembling the windows and installing windows at various locations.  He said their business fluctuates, depending upon demand.  He explained that Mr Tsimidanov was the only employee he had for the last quarter of the 2012/2013 financial year which is reflected in the BAS statement he had provided to the Department.  Mr Tsimidanov left to start his own business and the applicant then employed Mr and Mrs Sahnovski (from July 2013) to undertake similar work.  The applicant submitted that the hours all four employees worked during the relevant period, as reflected in the payslips provided, totals more than the equivalent of two full time employees. 

15. Based on visa information and copies of passports submitted to the Tribunal, the Tribunal is satisfied that the four employees listed in paragraph [13] are all Australian citizens or permanent residents.  Further, the Tribunal is satisfied that they are not members of the applicant’s family unit.

16. The Tribunal is also satisfied that the four persons listed at paragraph [13] are employees of the business, based on their superannuation statements, tax file number declarations (in relation to Mr and Mrs Sahnovski), PAYG summary statements, income tax notices of assessments, and payslips provided. 

17. The Tribunal has calculated the number of hours worked by the four employees during the relevant period as detailed in the payslips provided totals 3,430, which is more than the minimum total number of hours for two full time equivalent employees.[1]  The Tribunal is also satisfied, based on the payslips as well as BAS statements covering the entire relevant period[2], the business profit and loss statement for that period, PAYG summaries, and copies of business bank account statements showing regular debits for ‘wages’ during this period, that payment of salary for the four employees listed at paragraph [13] occurred during the relevant period.

    [1] That is 3120 hours (30 hours per week x 52 weeks x 2)

    [2] 1 April 2013 to 30 June 2013; 1 July to 30 September 2013; 1 October 2013 to 31 December 2013; 1 January 2014 to 31 March 2014; and 1 April 2014 to 30 June 2014.

18. Based on this evidence, the Tribunal is satisfied that Intecolux Pty Ltd, the main business of the applicant, has provided four employees with a total number of hours of employment, at least equivalent to the total number of hours that would have been worked by two full time employees. The Tribunal is satisfied that this employment was provided in the 12 month period immediately ending before the application was made. The Tribunal is satisfied that the employment was provided to employees who were Australian citizens and/or Australian permanent residents and who were not the applicant or a member of the family unit of the applicant.

19. The applicant therefore meets all the requirements of cl.890.214 and the Tribunal will remit the application to the Department for reconsideration.

20. The second named applicant’s entitlement to a visa is initially dependent on whether the primary applicant is successful in obtaining the visa, and then on whether she meets any additional visa criteria applicable.  Given that the application is being remitted to the Department to consider the remaining criteria for a Subclass 890 visa in respect of the primary applicant, it follows that the Department must also consider the remaining criteria in respect of the secondary applicant as well.

    DECISION

21. 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 890 (Sponsored Business Owner) visa:

    ·cl.890.214 of Schedule 2 to the Regulations.

    Nicole Burns
    Member