1500623 (Migration)

[2015] AATA 3884

1500623 (Migration) [2015] AATA 3884 (15 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yi Fang
Mr Ali Mohammad Shirazi
Miss Mina Chloe Shirazi
Miss Ruby Mahtab Shirazi

CASE NUMBER:  1500623

DIBP REFERENCE(S):  BCC2014/2453005 BCC2014/2990726 BCC2014/3327618 BCC2014/3327622 BCC2015/549617

MEMBER:Christopher Smolicz

DATE:15 December 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Business Skills (Permanent) (Class EC) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Business Skills (Permanent) Subclass 888 visa:

· cl.888.225 of Schedule 2 to the Regulations.

Statement made on 15 December 2015 at 8:37am

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 6 January 2015 to refuse to grant the visa applicant a Business Skills (Permanent) Subclass 888 visa under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) together with her husband and children applied for a Business Skills (Permanent) (Class EC) visa on 27 September 2014. That class includes only one subclass of visa, the Business Innovation and Investment (Permanent) Subclass 888 visa.

3. Their applications were refused by a delegate of the Minister because the delegate was not satisfied that the applicant had the personal and business assets required for the grant of the visa. 

4. The applicants appeared before the Tribunal on 8 December 2015 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Subclass 888 - Business Innovation and Investment (Permanent) (Class EC)

6. The Business Skills (Permanent) (Class EC) visa is a permanent visa and contains only one subclass – the Subclass 888 (Business Innovation and Investment (Permanent)) visa.[1] 

   [1] Item 1104BA of Schedule 1 and Part 888 of Schedule 2 inserted by items 45 and 115 of Schedule 1 to Migration Amendment Regulation 2012 (No.2) (SLI 2012, No.82).

7. The criteria for a subclass 888 visa are set out in Schedule 2 of the Migration Regulations 1994 (the Regulations).

8. The criteria included cl.888.225 which requires the applicant to meet two out of four of specified requirements at the time of the visa application unless the appropriate regional authority has determined there are exceptional circumstances. The relevant regulations are extracted in the attachment to this decision.

9. The delegate only assessed the applicant against one of the four requirements (cl.888.225(2)) and affirmed the decision.

10. A regional authority has not determined if there are special circumstances, and the Tribunal has assessed the applicant against the following two criteria:

    ·     That the lawfully acquired combined personal and business assets of the applicant and her husband in Australia have a net value of at least AUD600,000; and had a net value of at least AUD600,000 in Australia throughout the period of 12 months immediately before the application is made (cl.888.225(4)); and

    ·     That the annual turnover of the applicant’s main businesses in Australia in a period of 12 months ending immediately before the application is made is at least AUD300,000 (cl.888.225(5)).

    Main businesses and ownership interest”

11. The applicant and her husband are citizens of New Zealand. They lodged the application on 27 September 2014 and nominated the following two main businesses:

    ·     iGeneration Enterprises Pty Ltd trading as Turf Direct; and

    ·     Yi Sushi Pty Ltd trading as Yi Sushi.

12. The Tribunal has had regard to the Australian Securities and Investment Commission (ASIC) historical business name extracts and finds that iGeneration Enterprises Pty Ltd was first registered in June 2010 and that the applicant is a director and 100 per cent share holder.

13. Yi Sushi Pty Ltd was first registered in August 2013. The applicant and her husband are directors of the company each holding 50 per cent of the company shares.

14. The applicant said Turf Direct specialises in importing and installation synthetic turf and landscape work for both the retail and wholesale markets. The company employs five employees and the business premises are located in O’Connor, Western Australia.  The premises are owned by AA Property Services Pty Ltd. The applicant’s husband is a director and shareholder of AA Property Services.

15. The Tribunal questioned the applicant about her day to day duties in iGeneration. The applicant said that she manages all financial aspects of the business which includes setting budgets, book-keeping, negotiating prices with suppliers, setting retail and wholesale prices, recruitment of staff and payroll. She is also in charge of marketing and has direct contact with overseas suppliers and makes decisions on product range and selection. The applicant said that initially the business was retailing to the public but now it has expanded into the wholesale and turf rental markets.

16. The Tribunal questioned the applicant about her day to day duties in Yi Sushi. The applicant said that Yi Sushi is a profitable sushi restaurant which is situated in the Beeliar Village shopping centre and is leased from Coles Group Property Development Ltd. The restaurant has three full time and one casual employees. It is open seven days a week for breakfast, lunch and dinner. The applicant said that she manages all financial aspects of the business such as daily book-keeping, banking superannuation and payroll. She deals with insurance issues, the local council and makes application for licences relevant to the operation of the restaurant.  She deals with the centre manager and is in charge of marketing and promotion. She selects, hires and trains staff.

17. The Tribunal notes that in support of her evidence the applicant provided numerous business emails and business documents which are located on the department’s files.

18. The Tribunal found that the applicant was able to confidently explain to the Tribunal her role in the day to day management and control of Yi Sushi and Turf Direct. The Tribunal finds that the applicant has maintained 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 main businesses.

19. Having regard to the applicant’s evidence and the business records located on the Department’s file the Tribunal finds that Yi Sushi and Turf Direct are qualifying businesses in that they operate for the purpose of making a profit by providing goods and services to the public. The Tribunal finds that the businesses are not operated primarily or substantially for the purpose of speculative or passive investment.

20. Having considered the applicant’s evidence and supporting documents located on the Department’s file, the Tribunal finds that Yi Sushi Pty Ltd and iGeneration Enterprises Pty Ltd trading as Turf Direct meet the definition of main business in r.1.11. Having regard to the ASIC records the Tribunal is satisfied that the applicant meets the definition of ownership interest in r.1.03.

21. The delegate only had regard to the applicant’s business assets and found that total net business assets as at 30 June 2013 were $143,799 and $149,398 as at 30 June 2014. The delegate concluded that the applicant’s net business assets did not have a net value of at least $200,000 and was not satisfied the applicant met cl.888.225(2). The delegate did not proceed to assess the applicant against the remainder of the criteria. As stated above, the criteria including cl.888.225 requires the applicant to meet two out of four of specified requirements at the time of the visa application. The applicant said she is able to satisfy all the criteria in cl.888.225 (2) to (4). She said that both businesses continue to grow and have increased their profit margins since the date of application.

    Did the applicant and/or her husband have business and personal assets of $600,000 at the time of the visa application and in the twelve months prior to the application?

22. The Tribunal has had regard to a table titled “Personal Assets and Liability Summary” located at folio 44 of the Department’s file and is satisfied that the applicant and her husband’s total net assets amount to $1,281,992 at time of application. The Tribunal finds that the applicant was able to corroborate her evidence by reference to certificates of title, bank statements, real estate valuations carried out by a licenced valuer. The Tribunal notes that the applicant’s personal assets alone are greater than $600,000 in the twelve months before the visa application and continue to have a net value over $600,000. The Tribunal is also satisfied the assets were lawfully acquired.  The Tribunal is satisfied the applicant meets cl. 88.225(4).

    Did the applicant’s main business have an annual turnover of at least $300,000 in the twelve months immediately before the application was made?

23. The Tribunal has had regard to the Business Activity Statements (BAS) for iGeneration Enterprises Pty Ltd for the financial quarters ending 30 September 2013 to 30 September 2014 and finds that the total business sales excluding GST were $714,985.

24. The Tribunal has had regard to the BAS for Y Sushi Pty Ltd for the financial quarters ending 30 September 2013 to 30 September 2014 and finds that the total business sales excluding GST were $234,865.

25. The Tribunal has had regard to the profit and loss statement and company income tax return for Y Sushi Pty Ltd for the period ending 30 June 2014 and finds that the total trading income was $147,421.

26. The Tribunal has had regard to the profit and loss statement and company income tax return for iGeneration Enterprises Pty Ltd for the period ending 30 June 2014 and finds that the total trading income was $591,374.

27. The Tribunal is satisfied that the combined annual turnover of the applicant’s main businesses in Australia in the 12 months immediately before the application was made is over $300,000. The Tribunal is therefore satisfied the applicant has met cl.888.225(5).

    Conclusion

28. As the Tribunal has found that the applicant meets cl.888.225(4) and c.888.225(5) she meets two of the four criteria and therefore she meets cl.88.225.

29. As the applicant meets cl.888.225, the secondary applicants may meet cl.888.311 if the applicant meets the remaining criteria for the grant of the visa.

    DECISION

30. The Tribunal remits the application for a Business Skills (Permanent) (Class EC) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Business Skills (Permanent) Subclass 888 visa:

    · cl.888.225 of Schedule 2 to the Regulations.

    Christopher Smolicz

    
    

    Member

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    888.225

    [888.225]  (1) If the nominating State or Territory government agency has not determined that there are exceptional circumstances:

    (a)      the requirements in at least 2 of subclauses (2) to (4) are met; and

    (b)      the requirement in subclause (5) is met.

    [888.225]  (2) The assets owned by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main businesses in Australia:

    (a)      had a net value of at least AUD200 000 throughout the period of 12 months immediately before the application was made; and

    (b)      continue to have a net value of at least AUD200 000; and

    (c)      were lawfully acquired.

    [888.225]  (3) In the period of 12 months immediately before the application was made:

    (a)      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 provided employment in Australia to 2 or more employees for a total number of hours that was at least the total number of hours that would have been worked by 2 full-time employees; and

    (b)      each employee whose employment is used to work out that total number of hours:

    (i)      was not the applicant or a member of the family unit of the applicant during that period; and

    (ii)      was an Australian citizen, an Australian permanent resident or the holder of a valid New Zealand passport during that period.

    [(4) amended by SLI 2012, 256 with effect on and from 24/11/2012 - LEGEND note]

    [888.225]  (4) The business and personal assets 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)      had a net value of at least AUD600 000 in the period of 12 months ending immediately before the application was made; and

    (b)      continue to have a net value of at least AUD600 000; and

    (c)      were lawfully acquired.

    [888.225]  (5) 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, had an annual turnover of at least AUD300 000 in the 12 months immediately before the application was made

    Reg 1.11      Main business

    [1.11] (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.

    qualifying business means 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.

    Regulation 1.03 provides that ownership interest has the following meaning given to it in s.134(10) of the Act:

    "ownership interest"

    in relation to a business, 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;