1504261 (Migration)

[2015] AATA 3885

1504261 (Migration) [2015] AATA 3885 (16 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pui Lok Wong
Mrs May Lau
Mr Mark Vinn Howe Wong
Mr Peter Vinn Liang Wong

CASE NUMBER:  1504261

DIBP REFERENCE(S):  CLF2014/119709

MEMBER:Sue Raymond

DATE:16 December 2015

PLACE OF DECISION:  Perth

DECISION:The Tribunal has no jurisdiction in relation to the applications of the second, third and fourth-named applicants.

The Tribunal affirms the decision not to grant the first-named applicant a Business Skills (Residence) (Class DF) visa.

Statement made on 16 December 2015 at 10:21am

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 12 March 2015 to refuse to grant the visa applicants 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 4 September 2014. The delegate refused to grant the visa on the basis that the primary applicant, Pui Lok Wong, failed to satisfy the requirements of r.1.11(1)(b) and therefore has not satisfied the “main business” requirement of clause 892.211(1). In particular, the delegate was not satisfied that the applicant’s involvement in the business was direct and continuous from day to day or that he managed even a facet of the business.

3. The applicants applied for a review of the decision. The primary applicant appeared before the Tribunal on 14 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Oscar Lazuordi, one of the company directors of Spring 99 Pty Ltd.

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

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed in relation to the first-mentioned review applicant.

   JURISDICTION ISSUE-secondary visa applicants

6. The Tribunal notes that the second, third and fourth named applicants, who are secondary visa applicants, were not in Australia at the time of the departmental decision, on 12 March 2015, nor at the time of the lodgement of the review application on 27 March 2015. Section 347 of the Act stipulates that applications for review can only be made in certain circumstances. In this case,[1] section 347(3A) of the Act is the applicable provision and prescribes that an application for review can only be made by [the secondary applicants], Mrs Lau, Mr Mark Vinn Howe Wong and Mr Peter Vinn Liang Wong, if they were physically present in the migration zone at the time when the [primary] decision was made, and they are physically present in the migration zone when the application for review is made. As neither of these requirements was satisfied, each of the secondary visa applicants lacks the standing to make the application for review. The Tribunal therefore has no jurisdiction to deal with their purported applications for review.

   [1] As the secondary applicants were out of Australia at the time of  lodgement of the visa application section 338(7A) is the applicable provision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the primary applicant had direct and continuous involvement in the management of the business from day to day and also in making decisions affecting the overall direction and performance of the business. This is a component of the definition of “main business” in r.1.11. The satisfaction of criterion 892.211 depends on the definition being met.

8. The Business Skills (Residence)(Class DF) visa is the second stage of a two stage processing structure which provides Australian permanent residence for successful and eligible businesspersons.

9. The criteria for a Subclass 892 visa are set out in Part 892 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria.

10. The time of application primary criteria, amongst other requirements, require that the applicant has had, and continues to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application is made (cl.892.211(1))

11. Regulation 1.11 defines “main business” as follows:

    (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:

    (a)   (i)      if the business is operated by a publicly listed company — at least 10% of the total value of the business; or

    (b)   (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

    (c)   (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.”

12. I note that there is no legislative definition of what constitutes “direct and continuous involvement in the management of the business from day to day”. I have had regard to the departmental policy guidelines (PAM3).[2]

    [2] PAM3-Other Business Related Requirements paragraph 54

13. I am mindful that I should not elevate the policy guidelines to the level of a legislative requirement, and should not treat them as a compulsory checklist. My consideration should always relate to whether the provisions of the Regulations are satisfied, in the context of the particular circumstances of the case. I am also mindful that the nature of businesses, and their mode of management, differ from one business to another.

14. I find that the visa application was lodged with the department on 4 September 2014.  Consequently, I  find that the relevant two year period (‘the relevant period’) commences on 4 September 2012 and finishes on 3 September 2014.

15. There are some matters which are not in dispute and I find as follows:

    ·In the visa application only one main business was nominated.

    ·The business is Spring 99 Pty Ltd trading as Terrazza Applecross.

    ·The business is a café restaurant serving Italian and cosmopolitan cuisine.

    ·The business is a retail establishment, a restaurant, offering food and beverages to the public.

16. The primary applicant and the witness, Mr Oscar Lazuordi, have been friends from school days. They originally started a property business together. They are apparently both directors of the company, Spring 99 Pty Ltd, together with Mr Oscar Lazuordi’s brother, Johnatan. From about 1994 they were involved with others in relation to another restaurant venture. From 1999 they operated the café restaurant, Terrazza Applecross, through the entity, Spring 99 Pty Ltd.  They indicated that initially they were more “hands on” in the business but as the business is well established they are now more hands off.

17. It is submitted that Mr Wong, the primary applicant was a shareholder in the private company during the relevant period. His shareholding apparently increased in January 2012 before the relevant period commenced. He has apparently been a shareholder since 2003.

18. I had some copy documentation before me which indicated a shareholding owned by Mr Wong of a total of 384 shares of a total of 1250 shares. Had this matter turned on the question of the extent or value of the ownership interest I would have obtained further confirmation from ASIC in that regard. It was asserted that Mr Wong was a director of the company since March 2013 but again I do not have confirmation from ASIC in that regard. I have not relied on these matters in reaching my decision.

19. In terms of the structure of the business, I noted an organisation chart of the business which was provided to the department[3] and which showed the primary applicant together with Mr Oscar Lazuordi and his brother, Mr Johnatan Lazuordi, as directors of the business. On the chart, directly under them, is a person, Mr Tim Pullen, described as the General Manager. Beneath him are two positions-the head chef and the restaurant manager.  There are also 12 casual waitress positions on the chart below the position of restaurant manager, which it is stated are employed through a contractor. Beneath the head chef positions are two chefs and a cook and several casual cook positions. I heard evidence that staff retention is a problem. The organisation chart suggests that, at the time of lodgement of the application, there were approximately 20 employees.

    [3] At folio 94 of the departmental file

20. Mr Wong described “Oscar” as more hands on and giving direction to the General Manager. He described him as “running the show” as he is resident in Australia. In answer to questions from the Tribunal he said that Oscar deals with suppliers and complaints. He said that Johnatan and Oscar share the role.

21. Mr Oscar Lazuordi signs most of the cheques for the business and pays the wages. Mr Lazuordi deals with the accountant once or twice a month and a bookkeeper prepares the documentation. Mr   Oscar Lazuordi described his own role in relation to the business as “hands off”. Mr Lazuordi said that he might drop in two or three times per week.

22. In terms of Mr Wong’s role in the business, I accept that he is involved in major decisions in relation to the business. Mr Wong gave an example of discussions about proposed renovations to the restaurant and the injection of money for that purpose I also accept that when the restaurant first started in 1999 Mr Wong would come in to the business and help out in a “hands on” way, such as setting up tables and chairs. He described his role in the last four years as reviewing the financial information and he said that Oscar would update him on the business. He said that almost every other week they would “touch base”. He said they call every other week to get updates on how it is going. He said that at the present time there is not much activity with the business by way of expansion. I accept that he is involved in decisions affecting the direction and performance of the business.

23. Whilst Mr Wong mentioned setting seasonal menus and for special days such as Valentine’s day and Melbourne Cup day. He said that he checked on the accounts almost every day. I am not satisfied that any involvement he may have in this regard is such as to amount to day to day management of the business.

24. I asked whether he would regard himself as more than an investor in the business and he said that he does regard himself as more than an investor as he has a say in the direction of the company. He said that his fellow directors want him to be more hands on but he commented that he did not have PR [permanent residency]. He gave evidence that when he is in Australia he attends some staff meetings but he does not give any input.

25. When I put the name Mr Pullen [the name of the General Manager on the organisation chart] to Mr Wong he indicated that he did not know him. However he later indicated that he knows him by the name of “Tim”.

26. On the basis of the evidence, I understood that in the past there had been three different restaurants in which the General Manager was involved but during the relevant period there was only the one, Terrazza Applecross. The company, Spring 99 Pty Ltd, has only been running the one restaurant during the relevant period.

27. A written statement (unsigned) was provided to the department as part of the application process and was contained on the departmental file[4]. That statement suggests a change in the level of activity of Mr Wong before and after March 2013 when the first-named applicant apparently became a director. It is not clear who prepared the statement but where it differs to the sworn evidence  given, I prefer to rely on the oral evidence of the applicant and his witness. When I put to the applicant as to whether his involvement in the business changed, pre and post March 2013,he indicated that it had not. I accept that he may attend the business and have more involvement in it when he is in Australia.

    [4] Folio 232 of the departmental file

28. Mr Wong gave evidence, supported by the written comments in his visa application form  that he has another business in Singapore. He is the sole owner of that business, which is a retail store selling “retro” furniture from the 1950’s and 1970’s. He is the manager of the store. He is involved in running the business.

29. The decision record (supplied with the application for review) records the primary applicant has been overseas for 101 days during a period spanning approximately seven months, during the relevant period, from 4 September 2012 to 31 March 2013. Whilst I accept that the mere fact someone is out of Australia does not preclude them from undertaking a management role in the business, in this case it supports the oral evidence which did not suggest a day to day role of Mr Wong in the management of the business, nor that it was direct or continuous.

30. The evidence given established that, in the relevant period, the primary applicant had involvement with the business. However that involvement was in relation to the strategic direction and performance of the business. The evidence before me did not support a role in which Mr Wong had day to day management of the business. The general manager is the one who appears to have day to day management of the business. Mr Oscar Lazuordi also confirmed that the general manager manages the whole restaurant including dealing with  suppliers and complaints.

31. I accept that the directors are in control of the business in a strategic sense but the evidence does not support that, during the relevant period, Mr Wong maintains, or has maintained direct and continuous involvement in the management of the business from day to day.

32. I have considered whether the primary applicant meets the requirements in respect of the other three subclasses of visas –namely subclasses 890, 891 and 893 and conclude that the requirements for these other subclasses of visas are not made out.

    DECISION

    The Tribunal has no jurisdiction in relation to the applications of the second, third and fourth-named applicants.

    The Tribunal affirms the decision not to grant the first-named applicant a Business Skills (Residence) (Class DF) visa.

    Sue Raymond
    Senior Member