1511254 (Migration) - [2016] AATA 3721

1511254 (Migration) [2016] AATA 3721 (7 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Suk Ha Yoon
Ms Jeonghwa Lee
Master Yeogwang Yoon
Miss Chaeyeong Yoon
CASE NUMBER:  1511254
DIBP REFERENCE(S):  BCC2014/2483830; BCC2015/2039463
MEMBER:Bruce Henry
DATE:7 April 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Statement made on 07 April 2016 at 9:14am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 August 2015 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).
The applicant applied for the visa on 30 September 2014. The delegate refused to grant the visa on the basis that cl.892.211(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met by the applicant because there was insufficient evidence that the business on which the visa applicant relied, Futurecourse Pty Ltd (Futurecourse), was a ‘qualifying business’ as defined in r.1.11(1)(d).
The delegate also found that the visa applicant did not meet r.1.11(1)(b) because the evidence did not establish that he had a direct and continuous role in the management of the business Futurecourse.
The first named applicant, Mr Yoon, appeared before the Tribunal on 29 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hugh Ritchie, a representative of Futurecourse. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant applied for the grant of a State/ Territory Sponsored Business Owner (Subclass 892) visa on the basis of claims in relation to one nominated main business, Futurecourse Pty Ltd. On Form 1217, the applicant has described the main activities of the main business as “education courses for domestic and international students”.
Australian Securities and Investments Commission (ASIC) records provided to the Department by the applicants show that the shareholding in Futurecourse is owned 51% by Mr Yoon 49% by the Union Institute of Languages (UIL), and the directors are Mr Ritchie and the applicant.
Included with the application was a statement headed ‘Futurecourse and UIL – Working Relationship Statement’ which said:
The intention is for Futurecourse, to look with a new view on a range of international education fields that will grow both Futurecourse and in turn UIL possible due to its close strategic and ownership relationship. This was to particularly target students from Korea and China coming to Australia for study tours and longer term English programs in addition to targeting the new and exciting tech opportunities in education to be available to students of all ages internationally. A positive thing about the Futurecourse working with UIL was that it did not need any particular licences or registrations to facilitate its business. Study tours only come to Australia for short periods of time so students come on visitor's visas and if the students are coming for longer term study, UIL provides the registered teaching facilities and courses allowing student visas to be issued.
Futurecourse has day to day business operations of facilitating study tours, activity provision and coordination coupled with trying to build new education opportunities abroad with student flow to Australia. In addition it has the product development part of the business creating new and customised study tour products and activities and diversifying into new areas of education facilitation such as online teaching.
In relation to online education programs, a number of Australian Universities are currently trying to develop and achieve excellence in products in this space. My partnership with UIL is aiming also this technology, adapting services for easy reach of targeting markets.
To allow Futurecourse to take advantage of this opportunity, UIL at the beginning of the business relationship licenced Futurecourse to have access to UIL's curriculum to develop new programs including an online English language program. Futurecourse pays UIL $125,000 for this right. In early June 2012 it was agreed by all parties that I would be able to develop new products, programs and services outside the Futurecourse entity also in incubator companies allowing the outsource of a broad range of business associates in both Australia, Korea and China to develop new and exciting products, programs and services that could then be licenced back to Futurecourse to commercialise. This agreement allowed Futurecourse and UIL through its shareholding to take advantage of a broader range of business opportunities without exposing themselves to the cost or required investment by having to do this themselves.
One example of these developments is the classes online using Korean open social communities' websites, providing quick and simplified access to English language studies utilising a media widely used by young students. The classes were facilitated by a business I funded called S&P Wisemen (S&P UniEdu), which worked in the period from June 2012 to 11 September 2013 in conjunction with Futurecourse and UIL, targeting specifically Korean students. Our educational services and management were to meet the specific needs of each student as well as our cooperative companies, and to offer reliable education including cultural experiences while learning. Nevertheless, due to my interest in a broader Asian market and to focus on the solid partnership with Ult., I decided to discontinue S&P UniEdu activities in Australia and concentrate on the growth of Futurecourse.
At present I continue to manage Futurecourse together with UIL as the 2 major shareholders. Together we will continue to build Futurecourse and explore developing and incorporating new products, programs and services into the Futurecourse business while still maintaining its core study tour and activities business.
The departmental file also contains a document headed ‘Summary business activities and assets’ provided by the applicants which states:
Futurecourse provides high-quality, comprehensive education courses through on-line and face-to-face methods for domestic and international students, with reasonable prices. The courses include English literature, English Language Training, Mathematics, Science, Chinese (by customised level of each student), as well as a range of camp programs in the period of school holidays. Most lessons offered, except for the holiday camp programs, are also available on-line for students' convenience.
Futurecourse provides to their students:
·Reliable and practical learning methods at agreed quality levels;
·tutoring and Camp programs provided at reasonable prices;
·flexible and competitive leaning [sic] method including on-line courses;
·diverse educational resources including free consultations for students and parents who wish to enter schools or universities in English-speaking countries;
·customised lessons based on national curriculum.
Futurecourse educational services aim meeting the specifics needs of each student as well as of cooperative companies, and to concentrate on general reliable education including cultural experiences while learning.
Management duties and responsibilities
In rejecting the application, the delegate stated in the decision record, a copy of which was provided by the applicant to the Tribunal:
With that in mind, it would be reasonable to expect that the material evidence in support of the day-to-day activities of the applicant’s main business would be linked directly to Futurecourse Pty Ltd. However, the evidence presented to date suggests that the operations of Futurecourse Pty Ltd are piggy-backing off the existing business model of its secondary shareholder entity, UIL. This casts doubt as to whether Futurecourse Pty Ltd in itself is providing services or goods and services to the public because of its close links and ties to an existing and established Australian entity (UIL).
Futurecourse Pty Ltd claims to provide “comprehensive education courses through on-line and face-to-face methods for domestic and international students”; however, there is minimal evidence to support this activity. An online search failed to find any direct links between Futurecourse Pty Ltd and its claimed on-line courses or any of its face-to-face methods of teaching. This was brought to the attention of the applicant in a request for further information where he was asked to provide evidence of website details for on-line courses and evidence associated with being a registered training organisation, including their Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) Provider Code. The applicant provided a response which included a Futurecourse and UIL- Working Relationship Statement dated 7 May 2015. In it the applicant stated “A positive thing about Futurecourse working with UIL was that it did not need any particular licences or registrations to facilitate its business. Study tours only came to Australia for short periods of time so students come on visitor visas and if the students are coming for longer term study, UIL provides the registered teaching facilities and courses allowing student visas to be issued. Futurecourse has day to day business operations of facilitating study tours, activity provision and coordination coupled with trying to build new education opportunities abroad with student flow to Australia. In addition it has the product development part of the business creating new and customised study tour products and activities and diversifying into new areas of education facilitation such as online teaching”. The applicant’s response appears to shift the responsibility of delivering education from Futurecourse Pty Ltd to UIL, which is in stark contrast to his initial submission where he stated “Futurecourse provides high-quality, comprehensive education courses through on-line and face-to-face methods for domestic and international students, with reasonable prices”.
UIL’s role as an educational provider can further be supported by confirmation of their CRICOS Provider Code 02529F, as supplied by the applicant. Given that Futurecourse Pty Ltd is not an official CRICOS provider I am not willing to add much weight to the applicant’s claims of it providing “high quality, comprehensive education courses”.
That said, I acknowledge that the applicant has provided five Agreement of Business Partnership documents between Futurecourse Pty Ltd and 3rd parties, together with a letter of appreciation from the Korean National Defence University. All five agreements state that both parties shall “cooperate in a wide range of abroad study, holiday programs, and other educational business”; however, no evidence has been supplied that these agreements culminated into the provision of goods, services or goods and services to the public. Similarly, there is no evidence to support the claimed association with the Korean National Defence University.
I also note that the applicant has supplied a Study Tour Schedule, a Study Tour Intinerary and an AC Milan Soccer Club Camp flyer; however there is no evidence to confirm if any person or organisation signed up for any of these activities. Therefore, I cannot be satisfied that these elements of the business operations of Futurecourse Pty Ltd culminated into the provision of goods, services or goods and services to the public.
In summary, whilst I accept that the applicant holds an ownership interest in the business, as per the requirements of Regulation 1.11(1)(a), and that the value of his ownership interest satisfies the requirements of Regulation 1.11(1)(c), there is insufficient evidence which clearly demonstrates that the business is a qualifying business, as per the requirements of Regulation 1.11(1)(d). A qualifying business is described as one that operates for the purpose of making profit through the provision of goods, services or goods and services to the public; however, there is insufficient evidence to demonstrate that Futurecourse Pty Ltd has been delivering the services it claimed throughout the relevant period.
As noted above, the delegate also indicated that Mr Yoon did not have a day to day role in the management of the business. In relation to this issue, the decision record states:
As part of his initial submission, the applicant provided a summary of his management responsibilities in Futurecourse Pty Ltd during the relevant period. In it, he states “Since the establishment of the business in November 2011, the managerial role I assume involves the following duties:
·Management of financial structure of the business and supervising all financial matters, including GST, superannuation, sales and expenses.
·Supervising teaching/ learning program assuring superior quality.
·Recruitment and management of experienced/ qualified staff.
·Development and management of on-line English tutorial.
·Marketing and cooperative agreements with education agents in non-English speaking countries, especially in Korea, Japan and China”.
In support of his claimed management responsibilities, limited documentation was provided with his initial submission, with much of it conflicting with what he described above.
The applicant provided Employment Agreements, between Futurecourse Pty Ltd and three of its employees (Janet Streczynski, John Yamasaki and Lourdes Bondzulic). None of the Employment Agreements were signed off by the applicant despite his claim of being responsible for “recruitment and management of experienced/ qualified staff”. Also supplied, were the associated 2014 PAYG Payment Summaries for the same three employees of Futurecourse Pty Ltd. Despite the applicant’s claim of having the responsibility for “management of financial structure of the business and supervising all financial matters, including GST, superannuation, sales and expenses” all three identified Hugh Ritchie as the Authorised Person. Hugh Ritchie, through his interrelated companies (Greenlanes (QLD) Pty Ltd and UIL Holdings Pty Ltd) is the secondary shareholder in Futurecourse Pty Ltd.
I acknowledge that the applicant did provide a generous sample of Meeting Minutes dated at various point in time throughout the relevant period. Many of the minutes allocated responsibility to specific employees, including the applicant; however, no evidence to support the activities outlined in these meetings was supplied, and therefore, little weight has been given to these documents.
On 10 April 2015, the applicant was provided with an opportunity to provide further information, which included amongst other things, the requirement to present additional information to support his management claims throughout the relevant period.
The additional evidence included further information which conflicted with the applicant’s day-to-day management claims including a copy of Futurecourse Pty Ltd’s 2013 Company Tax Return which was signed off by Hugh Ritchie despite the applicant’s claim of being responsible for the “management of financial structure of the business and supervising all financial matters, including GST, superannuation, sales and expenses”.
Also supplied were five signed Agreement of Business Partnership between Futurecourse Pty Ltd and 3rd parties (assumedly offshore education agents or similar); however there is no evidence of whether these agreements culminated into sales or activity for the business, nor is there any suggestion that the applicant maintained his relationship with these partners following the signing of the agreements.
The applicant also gave sample screen shots of what appeared to be on-line modules for students. In his Futurecourse and UIL- Working Relationship Statement document he states “One example of these developments is the classes online using Korean open social communities’ websites, providing quick and simplified access to English language studies utilising a media widely used by young students. The classes were facilitated by a business I funded called S&P Wiseman (S&P UniEdu), which worked in the period from June 2012 to 11 September 2013 in conjunction with Futurecourse and UIL, targeting specifically Korean students. Our educational services and management were to meet the specific needs of each student as well as our cooperative companies, and to offer reliable education including cultural experiences while learning. Nevertheless, due to my interest in o broader Asian market and to focus on the solid partnership with UIL, I decided to discontinue S&P UniEdu activities in Australia and concentrate on the growth of Futurecourse”. I note that the applicant indicates that these classes were facilitated by an unrelated organisation; S&P UniEdu. As this organisation is not listed as a main business for this visa application I am adding no weight to its involvement in the business activities of Futurecourse Pty Ltd. Furthermore, whilst I accept that S&P UniEdu may have worked in conjunction with Futurecourse Pty Ltd as claimed, as no detail or supporting evidence of this business relationship has been supplied, including that applicant’s involvement in it, I am adding little weight to this claim.
In his evidence at the hearing Mr Yoon said that he established the business Futurecourse in September/October 2011. He had arrived in Australia from Korea on 15 August 2011 after having spent three months in 2010 investigating business opportunities in the education industry here. He said that he set up Futurecourse with Mr Ritchie, who was already involved in the delivery of educational course through UIL. The purpose of Futurecourse was to run study tours in conjunction with UIL’s educational courses, and also to set up online courses.
The Tribunal asked the applicant whether Futurecourse was actively involved in the delivery of goods or services to the public. In response he referred to a flyer about a soccer camp run in conjunction with the AC Milan soccer club, and another about online courses. He said that the AC Milan soccer camp flyer had been distributed in Korea, but in response to questions from the Tribunal said that no soccer camps had actually been run by Futurecourse, and no online courses were being offered by the company.
The Tribunal asked the applicant about the study tours offered by Futurecourse. He said that about 150-200 people had taken part in these tours since the business started. The running of the tours is done by the three staff of the business, while he is involved in budgeting and building up the programs for the tours. In response to further questions from the Tribunal he said that none of the tours had come from Korea, but have involved groups from Japan and China.
The applicant said that he is responsible for marketing the tours in Korea, and some of the marketing in China, while Mr Ritchie does the marketing for Japan and also China. Mr Ritchie performs these tasks for Futurecourse, not for UIL. He said that Mr Ritchie spends time working for Futurecourse because the company is focussed on developing markets for educational services in Korea.
The applicant said that the online study courses have been developed and run by an associated company, T & L Academy Pty Ltd.
The Tribunal asked why all the income of Futurecourse, according to the financial accounts and bank statements provided with the application, was shown as professional fees paid by UIL. The applicant said that currently it is the case that all of the income of Futurecourse is derived from UIL as professional fees. Although he has been working to target the Korean market for the various educational services and study tours referred to, as yet that has produced no income.

The representative told the Tribunal that Futurecourse is one of a group of companies engaged in associated activities. He said that the online study courses are run by T & L Academy Pty Ltd, while Futurecourse runs the study tours although the payments for those courses are made to UIL. He said that the accounts show only payments to Futurecourse from UIL because of the way the associated businesses are structured, as another of the businesses, UniEdu, runs the study tours and the income from those tours goes to UniEdu.
Mr Ritchie said in his evidence that he had joined the applicant in the Futurecourse business because of the applicant’s expertise in marketing study tours and online educational services to both the Korean and Chinese markets. He said that they had ‘gone to the market’ with Futurecourse products, but have not been successful with those products because of the competitive nature of the market. He said that he and the applicant see Futurecourse as very early in its business life and not yet self-sufficient, which is why it needs the regular funds from UIL.
Mr Ritchie said that while the fees for study tours were paid by the participants to UIL, those fees were then passed onto Futurecourse and recorded as ‘professional fees’ in the accounts. He agreed that some of this money then returned to UIL as payments by Futurecourse for course fees and homestay costs, as those services were delivered by UIL. He said that Futurecourse contracts the activities providers such as Dreamworld, Lone Pine Koala Sanctuary, Stradbroke Ferries and others. The Tribunal noted that such payments appeared to relate to a small proportion of the expenses of Futurecourse, compared to the majority of the outlays of the business which went to UIL.
Mr Ritchie argued that the accounts show increasing activity by Futurecourse. The Tribunal notes however that the Purchase Register [All Purchases] that was provided to the Tribunal for Futurecourse states that a total of $331,867 was paid to UIL by Futurecourse in the period from 1 July 2012 to 23 May 2014, of a total expenditure of $428,189.75. Allowing for an apparent credit of $70,839.93 shown in the accounts, this means that over 60% of Futurecourse’s expenses were paid to UIL, which is also the source of 100% of its income.
The Tribunal asked Mr Yoon and Mr Ritchie to comment on the delegate’s finding that Futurecourse did not deliver goods or services to the public. Mr Yoon said that he was involved in delivery of services to the public, and gave the example that he would sometimes take students to Wellington Point, although he does that through UIL rather than Futurecourse.
After the hearing the applicants provided further information and documents to the Tribunal, including further submissions accompanied by copies of the 2013, 2014 and 2015 financial reports of Futurecourse, accounts for the claimed associated companies S & P Wiseman Pty Ltd and T & L Academy Pty Ltd, and copies of invoices and ledgers from UIL and Futurecourse.
The relevant legislation
Clause 892.211(1) states:
(1) The applicant has had, and continues 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.
(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.
‘Ownership interest’ is defined 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;
‘Main business’ is defined in r.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.
(2) If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.
‘Qualifying business’ is defined in r.1.03:
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant had an ownership interest in one or more established main businesses in Australia in the 2 years immediately before the application was made (cl.892.211) and continues to have an interest of that kind at the time of the Tribunal’s decision (cl.892.221). As the visa application was lodged on 30 September 2014, the relevant 2 year period immediately before the application is 30 September 2012 to 29 September 2014.
The applicants’ main business
The evidence in this case is that the nominated business Futurecourse deals almost entirely with UIL, a company which is owned by one of the directors and shareholders of Futurecourse, but not by the applicant, who has no ownership interest in UIL. At the hearing the applicant and his representative referred to other businesses, including the (claimed) associated companies S & P Wiseman Pty Ltd and T & L Academy Pty Ltd, however the representative advised the Tribunal that the applicant had not sought to include these businesses as ‘main businesses’ for the purposes of the application.
In Nassif v MIMIA (2003) 129 FCR 448, at [33], Branson J considered it significant that a ‘qualifying business’ is defined to mean an enterprise of a particular kind. Her Honour concluded that it is not a necessary characteristic of a ‘main business’ that the business be carried on by a single entity.[1] While the fact that there may be more than one legal entity is not determinative, where an applicant claims a single ‘business’ is transacted through multiple entities, the decision-maker is entitled to consider the ownership structure of each entity at any relevant time in order to decide whether they constitute ‘the business’.[2]
[1] Nassif v MIMIA (2003) 129 FCR 448, at [35]. See also Lu v MIAC (2009) 112 ALD 125 at [40], considering the meaning of “business” in the context of the definition of “eligible business” in s.134(10) in relation to a decision to cancel a visa under s.134(1)(a).
[2] Ibrahim v MIAC [2009] FCA 1328 (Jagot J, 18 November 2009) at [32]. The Court on appeal upheld the Tribunal’s reasoning. The Tribunal accepted that two businesses claimed by the first appellant were very similar, but did not accept they were the same business on the basis that there must have been a benefit to the first appellant from the winding up of one entity and setting up another entity as a “new business” and that the different ownership arrangements between the two entities were inconsistent with the claim that they were the same business. The Court held these factors were not irrelevant considerations to determining whether multiple entities were the same ‘business’.
Accordingly, for the sake of completeness, the Tribunal has considered whether the (claimed) associated companies S & P Wiseman Pty Ltd and T & L Academy Pty Ltd, or either of them, can be considered with Futurecourse to constitute main businesses of the applicant.
The evidence before the Tribunal includes information from ASIC regarding the business T & L Academy Pty Ltd, from which it appears that Mr Yoon obtained an ownership interest in the business of more than 50% on 4 October 2013. He previously held a one-third interest only. It is clear from the financial accounts of the business for the 2014 and 2015 financial years that the turnover of this company was considerably less than $400,000 in each of those years. The Tribunal is satisfied therefore that this business could not qualify as a main business as it did not meet the requirements of paragraph 1(c) of the definition of that term.
The Tribunal notes also Mr Yoon could not rely upon T & L Academy Pty Ltd as a main business for the purposes of cl.802.211, as that clause requires him to have had an ownership interest in the relevant business for at least 2 years immediately before the application is made.
No evidence of the ownership of the company S & P Wiseman Pty Ltd has been provided to the Tribunal, and the Tribunal notes that in his written submission to the Department Mr Yoon advised that the business ‘ceased’ in September 2013. The Tribunal is satisfied that this business cannot be considered to be a main business of the applicants for the purpose of this application.
Accordingly, the Tribunal is satisfied that it must consider Futurecourse to be the only main business of the applicants for the purposes of cl.892.211.
Is Futurecourse a qualifying business?
The Tribunal must therefore consider whether the ‘main business’ identified by the applicant in the application, Futurecourse, is a ‘qualifying business’. To meet this requirement, the definitions set out above require that the business be ‘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’.
There is no definition of the term ‘the public’, and it thus has its ordinary meaning.
The case Teng v MIBP [2015] FCCA 1197 (Judge Simpson, 18 May 2015) involved an Australian company trading solely with a Taiwanese company. The Court found no error in the Tribunal’s finding that the provision of goods exclusively to the Taiwanese company was not ‘the provision of goods to the public’.
In this case the applicants have argued that although all of the revenue of Futurecourse comes from UIL and the majority of its expenditure is paid to UIL, it is nonetheless delivering services to the public through the study tours it offers. The evidence on this issue, in summary, is that while Mr Yoon’s efforts are primarily directed at marketing the study tours and training camps to the Korean market, those efforts have thus far proved unsuccessful. Mr Ritchie was said by Mr Yoon to have spent time on behalf of Futurecourse marketing study tours to the Chinese and Japanese markets with some success. Mr Ritchie’s evidence, however, was that his role in Futurecourse was more administrative and involved with coordinating its staff and finances, while most of his time was spent on UIL.
The Tribunal notes that a number of services claimed by the applicants to be delivered to the public were set out in the document headed ‘Summary business activities and assets’ provided to the Department with the application. The Tribunal questioned both Mr Yoon and Mr Ritchie about these activities, and it is apparent from their responses that no training camps have been run by Futurecourse, while the on-line courses are provided by another company. Of the activities listed in that document, Futurecourse is claimed to have delivered only a small number of study tours.
The departmental guidelines (PAM3), to which the Tribunal may have regard in appropriate cases, provide examples of exclusive business arrangements which may not come within the description of providing goods and services to the public, including goods and/or services are provided exclusively to a single entity, unless there is an arms-length commercial arrangement (i.e. the buyer and seller are not related, independent of each other, are on an equal footing and are dealing with each other on a commercial basis) that does not restrict or limit the business operations.[3]
[3] PAM3: Migration Regulations - GenGuide M – Business Skills Visas – Visa applications & related procedures – Business ownership and assets – Qualifying Business at [32.3] (compilation 2 June 2014).
The Tribunal accepts the principle that it is not necessary for a business to have operated at a profit to be considered a qualifying business, only that it is being operated for the purpose of making a profit. The issue here, however, is not that Futurecourse is not operating at a profit, but whether it is operated for the purpose of making profit through the provision of goods or services to the public, or simply to UIL.
On the evidence before the Tribunal it appears that Futurecourse is remunerated by UIL for services that it delivers to that business, not to the public. The evidence appears to the Tribunal to be that Mr Yoon is working to develop the Korean market in training camps, study tours and on-line education, but that those services would then be delivered by UIL, not by Futurecourse. The role of Futurecourse in the actual delivery of services to the public appears to the Tribunal to be peripheral at best to its main function which is to deliver a service to UIL. It is that service that it is remunerated for by UIL.
The Tribunal finds that Futurecourse is not a qualifying business as that term is defined in r.1.03, and is therefore not a main business as defined in r.1.11. Clause 892.211 is therefore not satisfied, and the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.
Bruce Henry
Member