1502205 (Migration)

[2016] AATA 4426

1502205 (Migration) [2016] AATA 4426 (15 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sun Kyung Park
Mr Jun Yong Hwang
Miss Ju Hyeon Hwang
Miss Juwon Hwang

CASE NUMBER:  1502205

DIBP REFERENCE(S):  CLF2014/107557 CLF2015/4663

MEMBER:Rania Skaros

DATE:15 September 2016

PLACE OF DECISION:  Sydney

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 (Business Owner) visa:

· cl.890.212 of Schedule 2 to the Regulations.

Statement made on 15 September 2016 at 10:24am

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 5 February 2015 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) Subclass 890 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 4 August 2014. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfied cl.890.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the net value of the applicant’s assets in the main business were at least $100,000 throughout the 12 month period immediately before the application is made or at the time of application.

3. The applicants appeared before the Tribunal on 5 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements in cl.890.212, which provides:

   890.212

   The assets of 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)      have a net value of at least AUD100 000; and

   (b)      had a net value of at least AUD100 000 throughout the period of 12 months ending immediately before the application is made; and

   (c)      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.

7. The applicant nominated JR World Pty Ltd as her main business. The applicant gave evidence at the hearing that she has held and continues to hold 100% of the shares in that business. 

8. Financial statements ending 30 June 2013 and 30 June 2014 for the main business were provided to the Department and indicated the net assets of the business and loans by the applicant to the business as follows:

   30 June 2013              30 June 2014

   Business: net assets                 (-$103,994)                (-$99,784)
   Shareholder loans   $518,120.41               $518,120.41

9. As the applicant was relying on a loan to the business meet the net asset requirement, the delegate requested evidence, such as bank statements, showing the transfer of the claimed loan funds into the business and general ledger from the commencement of the loan.

10. In response, the following documents were provided to the Department; a general ledger for the main business with an opening balance of 339,683.41, personal bank account statement showing evidence of withdrawals to the total of $118,000 and the corresponding business bank account statements evidencing the deposits of the $118,000 dated from 7 June 2013 to 24 June 2013.

11. The delegate accepted that a loan for the total amount of $118,000 had been provided to the business based on the bank statements provided, however the delegate was not satisfied, given the lack of supporting evidence, that the remaining claimed amount of $400,120 was provided as a loan to the company by the applicant. The delegate recalculated the applicant’s net assets in the business as follows:

    30 June 2013              30 June 2014

    Business: net assets                 (-$103,994)                (-$99,784)
    Shareholder loans   $118,000                   $118,000
    Total net assets in business          $14,006   $18,216

12. Consequently the delegate was not satisfied that the applicant had total net assets in the main business of $100,000 for the relevant period.

13. On review, the applicants’ representative provided submissions and supporting documents. The representative explained that the applicant’s previous agent had only provided evidence of funds transferred by the applicant in 2013 and that the applicant had loaned significantly more funds to the business dating back to 2012. A ledger of funds transferred by the applicant to the business with corresponding personal and business bank statements dating from February 2012 were provided to the Tribunal.

14. At the hearing the applicant gave evidence about the history of the business’ operations in Australian and her involvement in the management of the business. The applicant explained that the Company currently operates a health product store and has a retail outlet in Ryde.

15. The applicant gave evidence that she and her spouse had injected a significant amount of their savings into the business and that their previous agent did not provide to the Department the required evidence even though they had provided it to the agent. The Tribunal discussed with the applicant the transfer of funds between her and her spouse’s personal account and the business account. She explained to the Tribunal that the business operated two accounts, a business transaction account and online saver account. She transferred funds directly into the transaction accounts and that from time to time the funds were kept in the online saver account, which earns a higher interest, and then transferred back to business’ transaction account when required by the business.

16. After the hearing the Tribunal received an updated ledger and a summary of the funds transferred from the applicants’ personal accounts to the business’ transaction account from 10 February 2012 to 24 June 2013, together with corresponding personal and business bank account statements supporting the applicants’ claims of the total funds transferred to the business up to 24 June 2013. The total amount of the funds transferred by the applicant to the business as indicated by the bank statements totalled $452,000. In addition to these documents, the applicants also provided details of how the loan funds were used by the business, which included payments for shopfitting work, purchase of machinery and equipment.

17. The Tribunal is satisfied on the evidence before it that the applicant has made loans to the business of at least $452,000 in the period prior to 30 June 2013. On this basis the Tribunal has calculated the applicant’s net assets in the main business for the relevant period as follows:

    30 June 2013              30 June 2014

    Business: net assets                 (-$103,994)                (-$99,784)
    Shareholder loans   $452,000                   $452,000
    Total net assets in business          $348,006                 $352,216

18. Based on the above, the Tribunal finds that the applicant’s net assets in the business, given she is 100% shareholder, was $352,216 as at 30 June 2014 and $348,006 12 months prior. The Tribunal is accordingly satisfied that the assets of the applicant in the main business had a net value of at least $100 000 at the time of application and throughout the period of 12 months ending immediately before the application was made. The Tribunal is also satisfied on the evidence before it that the funds were from the accumulated savings of the applicant and her spouse which have been lawfully acquired by them.

19. Given the above, the Tribunal finds that the applicant meets all the requirement of cl.890.212.

20. As the Tribunal has found that that the applicant has met cl.890.212, the application will be remitted to the Department for reconsideration.

    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 (Business Owner) visa:

    ·cl.890.212 of Schedule 2 to the Regulations.

    Rania Skaros
    Member