1418164 (Migration)

[2015] AATA 3039

1418164 (Migration) [2015] AATA 3039 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Xuan Nhu Bui
Mr Duc Minh Quang Nguyen
Mr Duc Tue Trung Nguyen

MRT CASE NUMBER:  1418164

DIBP REFERENCE(S):  CLF2014/93648

TRIBUNAL MEMBER:  Glen Cranwell

DATE:2 July 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Subclass 892 Business Skills (Residence) (Class DF) visas.

Statement made on 02 July 2015 at 10:44am

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 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 30 May 2014. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not meet the requirements of cl.892.211.

3. The applicants appeared before the Tribunal on 30 June 2015 to give evidence and present arguments.

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 decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the review applicant meets the requirements of cl.892.211 of Schedule 2 to the Regulations.

   The requirements of cl.890.211 of Schedule 2 to the Regulations

7. Clause 892.211 requires the applicant to have had, and to continue 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. Furthermore, each business must have an Australian Business Number, and all BAS required by the ATO for the relevant 2 years period must have been submitted to the ATO and have been included in the application.

8. The Subclass 892 visa application was lodged on 30 May 2014.  NQ Healthcare Australia Pty Ltd was nominated as the main business as set out on the Form 1217 - Business Skills profile: Business Owner (Residence).

9. No BAS statements were provided with the visa application.

10. Accordingly, the Tribunal is not satisfied that the applicant included in the visa application all BAS for NQ Healthcare Australia Pty Ltd, required by the ATO for the relevant 2 years period, and which had been submitted to the ATO. 

11. The Tribunal is of the view that the wording of the regulation does not allow for the provision of the BAS after the lodgement of the visa application. Clause 892.211(2)(b), which is a time of application requirement, uses the past tense:

    892.211

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

    (2)      For each business to which subclause (1) applies:

    (a)      an Australian Business Number has been obtained; and

    (b)      all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.

12. The Tribunal is of the view that the requirement in subparagraph (2)(b) is twofold: all BAS required by the ATO for at least 2 years before the application is made must have been submitted to the ATO and must have been included in the application. The Tribunal is not satisfied that either requirement in 892.211(2)(b) is met in respect of the BAS for NQ Healthcare Australia Pty Ltd. The Tribunal therefore finds that the nominated main business does not meet the requirements of cl.892.211(2) and therefore does not meet cl.892.211.

13. The Tribunal has given some consideration to whether subclause (2) cannot be applied until findings are made in respect of subclause (1); in particular, whether the nominated main businesses satisfy the definition of ‘main business’. However, the Tribunal is of the view that it would be futile to make findings in respect of subclause (1) if the requirements of subclause (2) are not satisfied.

14. There has been no material submitted by the applicants, nor is there any material otherwise known to the Tribunal, which would support a conclusion that any applicant meets requirements prescribed at Parts 890, 891 or 893 of Schedule 2 to the Regulations. The Tribunal is not satisfied that any applicant meets essential prescribed criteria for any alternate Class DF visa.

15. This being the case, the Tribunal is not satisfied that the applicants meet essential prescribed criteria for any Class DF visa. The grant of such visas to them must be refused.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Subclass 892 Business Skills (Residence) (Class DF) visas.

    Glen Cranwell
    Member