1513308 (Migration)

[2016] AATA 4481

1513308 (Migration) [2016] AATA 4481 (29 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ok Seob Lee
Ms Hyein Cho
Mr Dong Hun Cho
Ms Hyemin Cho
Mr Yong Bin Cho

CASE NUMBER:  1513308

DIBP REFERENCE(S):  CLF2013/278686 CLF2013/278688 CLF2013/278690 CLF2013/278695 CLF2013/61964 CLF2014/4459 CLF2015/70819

MEMBER:Steve Georgiadis

DATE:29 September 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets:

·cl.892.212 of Schedule 2 to the Regulations.

Statement made on 29 September 2016 at 3:10pm

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 28 January 2014 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) Subclass 892 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 20 March 2013. The delegate refused to grant the visa on the basis that the delegate considered that the declared combined net personal and business assets for the year ending 31 December 2011 and 31 December 2012 are significantly lower than the requisite $250,000 combined asset figure required under the relevant cl.892.212(b). The applicant did not dispute this and concedes that cl.892.212(b) is not met.  The delegate also found that the required net business assets as at 31 December 2011 were less than the $75,000 necessary under cl.892.212(c) and therefore, the applicant did not meet at least two out of the three requirements of cl.892.212, and there was no waiver for exceptional circumstances by the relevant regional authority, the Western Australian Government.

3. The matter came before the Tribunal on 24 November 2014.  On 29 June 2015 the Tribunal made a decision to affirm the decision in matter number 1402078 not to grant the applicants State Sponsored Business Owner (Residence) (Class DF) Subclass 892 visas on the basis that at least two out of the three requirements of cl.892.212 for the grant of the visa had not been met.  As the first named applicant did not meet the above requirements, the Tribunal found that the remaining (secondary) applicants were also unable to meet the criteria of cl.892.212 (as members of the family unit of the first named applicant) for the grant of the visas.

4. On appeal, the Federal Circuit Court remitted the matter to the Tribunal, by consent, on 21 September 2015 quashing the Tribunal’s decision of 29 June 2015, and issuing a writ of mandamus requiring the Tribunal to determine the application according to law.

5. The remitted matter (case number 1513308) was heard by the Tribunal on 2 March 2016, constituted as previously.  The first named applicant (the applicant) was away overseas visiting an ill relative in January and February 2016. The applicants appeared before the Tribunal on 2 March 2016 to give evidence and present arguments. The Tribunal received oral evidence from company accountant, Mr Thomas Wonho Kim and also Mr Ung Heo, a former business associate of the applicant in whose business she submits she made a “false investment” as it subsequently failed. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in respect of all applicants.

   JURISDICTION

8. The Tribunal notes from departmental movement details that the secondary applicant, Ms Hyein Cho, was off shore at the time of lodging the visa application (20 March 2013).  Her bridging visa ceased when she departed Australia on 26 March 2013 and her Subclass 163 visa also expired on 3 April 2013. She was onshore at the time of lodging the review application on 10 February 2014. The Tribunal concludes therefore, that section 347(3A) of the Act does not preclude this secondary applicant making an application for review.

9. Consequently the Tribunal has jurisdiction in relation to all applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The application relates to the business and personal assets, and assets in the main business, One Shot Renovation Pty Ltd, trading as “Claris Antique” (the business).

11. The Tribunal has before it the Department’s files relating to the applicants. There are more than 1,000 pages of documentary evidence and submissions.  The Tribunal has also had regard to the material referred to in the delegate’s decision. The Tribunal received a number of written submissions and additional documents from the applicants’ representatives including (inter alia) bundles of documents under cover letters of 10 February 2014, and on the afternoon of the original hearing of 24 November 2014 respectively.  The Tribunal also received the applicant’s further written submissions lodged after the initial hearing within the time allowed on 22 December 2014 and also following the subsequent hearing for the remitted matter held on 2 March 2016.  Where relevant these have been discussed below.

12. The issue in the present case is whether two of the requisite three sub-clauses in cl.892.212 are satisfied by the first-named applicant, Ms Ok Seob Lee, to meet the requirements of cl.892.212 of Schedule 2 of the Migration Regulations for the grant of a Subclass 892 visas in respect of all applicants. 

    Relevant law

13. The relevant criterion is cl.892.212 and must be satisfied at the time of the visa application as follows:

    Unless the appropriate regional authority has determined that there are exceptional circumstances, the applicant meets at least 2 of the following requirements:

    (a) in the period of 12 months ending immediately before the application is made, 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:

    (i) provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by one full-time employee over that period of 12 months; and

    (ii) provided those hours of employment to an employee, or employees, who:

    (A) were not the applicant or a member of the family unit of the applicant; and

    (B) were Australian citizens, Australian permanent residents or New Zealand passport holders;

    (b) 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:

    (i) have a net value of at least AUD 250,000; and

    (ii) had a net value of at least AUD 250,000 throughout the period of 12 months ending immediately before the application is made; and (iii) 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;

    (c) 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: (i) have a net value of at least AUD 75,000; and

    (ii) had a net value of at least AUD 75,000 throughout the period of 12 months ending immediately before the application is made; and

    (iii) 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.

14. The Tribunal has reached its conclusion on the basis that the appropriate regional authority of the Western Australian Government has not determined there are exceptional circumstances, (which is not disputed), and consequently the applicant must meet two of the three above requirements in cl.892.212 of subparagraphs (a), (b) or (c).

    Sub-clause 892.212(a)

15. In respect of cl.892.212(a) the Tribunal considered whether the applicant’s 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: (i) provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by one full-time employee over that period of 12 months. 

16. On this point, the applicant’s submissions of 20 December 2014 point out that the [PAYG] ‘Payment Summaries’ of Australian permanent resident employees and the staff roster of the weekly hours provided, show that the minimum number of (full-time) hours required to be worked has been met. There is also evidence of a Permanent Resident Visa, passports and individual rosters of employees. The written submissions claim that the hourly rate for the applicant’s staff is not $18.00 (which was the oral evidence provided at the original hearing) but actually $16.00 per hour.  The applicant claims this is above the minimum hourly rate for shop assistants. The Tribunal notes the minimum adult pay rate (21 years or older) for award free employees in Western Australia was at that time $17.52 per hour or in the case of a casual worker (with a 20% loading) $21.03 per hour. [ These documents are enclosed at Attachment “J” of the submissions of 20 December 2014.

17. The Tribunal has carefully considered the wording of the particular sub-clause 892.212(a).  The requirement is that in the period of 12 months ending immediately before the application is made (12 March 2012 to 12 March 2013), the main business (or main businesses) in Australia, provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by one full-time employee over that period of 12 months. The applicant’s evidence from the PAYG Payment Summaries relied upon show that the worker named Ms Mi Joung Hong was paid $16,512 for the period 1 January 2012 to 30 June 2012 and $15,552 for the period 1 July 2012 to 13 January 2013. This amounts to a total of $32,064 for the aggregate period of 54 weeks above, or $30,876 for one year.  At $16.00 per hour, this equates to 37.11 hours per week or just a little under full-time of 38 hours per week over the period.  Accepting the applicant’s spontaneous oral evidence given at the first hearing (which is preferred to the roster and pay documents provided after that hearing) of pay at the rate of $18.00 per hour, this equates to 32.99 hours per week, which the Tribunal considers is not the equivalent of full-time work.

18. Sub-clause 892.212(a)(i) must be satisfied at the time of visa application and makes reference to a total number of hours of employment by “an employee, or employees”, at least equivalent to the total number of hours that would have been worked by one full-time employee over the period of 12 months ending immediately before the application is made.  Accordingly, the Tribunal is able to consider and aggregate the hours of more than one employee to meet this criterion. The Tribunal has had the benefit of considering further evidence from the applicant on 2 March 2016 and also the written submissions for the remitted matter, including those made under cover letter of 25 February 2016, 1 March 2016 and 21 March 2016.

19. In addition to employing an Australian permanent resident, Ms Mi Hong (above), the applicant’s oral evidence is that since September 2012 she has employed another Australian permanent resident worker named Ms Kyung Shin Jin as part-time shop assistant in her main business, One Shot Renovation Pty Ltd (trading as Claris Antique). The written submissions, oral evidence and the PAYG Payment Summary to 30 June 2013 confirm that Ms Jin was employed in the applicant business, Claris Antique, for the relevant 12 month period and that she earned $13,248 in the 2012/13 financial year.  The applicant’s oral evidence is that Ms Jin was paid $16.00 per hour for working between 16 and 21 hours a week which is consistent with the above stated earnings over the 9 month period since September 2013. The Tribunal is satisfied from this evidence that the aggregate hours of both employees, is at least the equivalent of one full-time employee (38 hours per week) over the material 12 months.

20. The Tribunal is satisfied that the employees are Australian permanent residents. The Tribunal is satisfied that there is evidence before it to establish that in the period of 12 months ending immediately before the application was made on 12 March 2013, the applicant’s main business trading as Claris Antiques provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by one full-time employee over that period of 12 months, who is not a member of the family unit of the applicant, and is an Australian citizen, Australian permanent resident or New Zealand passport holder. 

21. Consequently, the requirements under cl.892.212(a) are met.

    Sub-clause 892.212(b)

22. The applicant’s business and personal assets were provided in the financial records presented with the written submissions for the original consideration of the matter. The Tribunal has had regard to the applicant’s written submissions of 22 December 2014 and subsequent oral evidence in which the applicant concedes “clause 892.212(b) is not satisfied because the applicant and her spouse did not possess more than $250K personal and business assets in Australia during the 12 months period immediately before the application.” As aforementioned, the declared combined net personal and business assets for the year ending 31 December 2011 and 31 December 2012 must not be lower than the AUD $250,000 combined asset figure required under cl.892.212(b). As this criterion is conceded as not being met and is otherwise not disputed by the applicants, the Tribunal accepts that the requirements are not met. 

23. The Tribunal finds that 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, do not have a net value of at least AUD $250,000.

24. Accordingly, the requirements under cl.892.212(b) are not met.

    Sub-clause cl.892.212(c)

25. The Tribunal has considered whether 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: (i) have a net value of at least AUD $75,000; and (ii) had a net value of at least AUD $75,000 throughout the period of 12 months ending immediately before the application is made; and (iii) 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.

26. The applicant’s company accountant, Mr Thomas Wonho Kim, provided adjusted financial records as part of the further written submissions before the Tribunal.  He explained that he had earlier missed trade debtors in the financial documents which therefore, did not accurately reflect the financial status of the applicant’s business.

27. Whilst there were some initial doubts regarding whether the applicant was able to satisfy this criterion, the Tribunal has considered the applicant’s further oral evidence and additional written submissions. The oral evidence from the applicant and Mr Ung Heo, a former business associate who is a Director of a company in which the applicant and her husband invested money in the order of $200,000, is that he repaid the applicant between $2,000 and $2,500 per month whilst an undischarged bankrupt. The applicant told the Tribunal that she was desperate to secure funds to use in the business and for reasons of cash flow accepted the money.  Mr Heo explained to the Tribunal that due to his undischarged bankruptcy status, his salary was limited (capped) at $57,000 per year at the relevant time.  He said that he had lawfully repaid money to the applicant as this was after the bankruptcy agreement was taken out.  He said he repaid a total of $53,000.

28. The applicant’s written submissions of 20 December 2014 (further elaborated in written submission of 25 February 2016) in response to this criterion, set out (in part) as follows:

    Evidence of Investment in Erez Australia Pty Ltd

    I have received, through Freedom of Information Act, supporting documents submitted at the time of subclass 163 application and it revealed that the actual investment was in fact $200,000.00 and the statutory declaration of Mr Ung Heo and Mr Dong Hun Cho is enclosed as Attachment “E”. The evidence of funds held at the time is also included in Attachment “E”. And the DIBP has accepted this document as evidence of our investment with Mr Ung Heo and granted us the Subclass 163 visa. Mr Ung Heo and I mentioned the investment was $140,000 but I now realise that the actual money handed over to Mr Ung Heo was in fact $200,000.00.

    Mr Ung Heo gave evidence under oath at the MRT Hearing that my husband has in fact made investment with the company owned by himself, namely Erez Australia Pty Ltd, and that he has repaid us in the sum of $2,000.00 to $2,500.00 from July-2010 for period of 2 years and those payments made by Mr Ung Heo are shown in the document noted as “Applicant’s (Ms Ok Seob Lee) Cash Holdings”. Mr Ung Heo did make payments until Jun-2011 but the cash holdings only shows payment to 10/12/2011 which are the period in which the Minister’s delegate was not satisfied.

    Funds used as Investment in the Business of Claris Antique

    As shown in “Applicant’s (Ms Ok Seob Lee) Cash Holdings”

    Debt repayments from Mr Ung Heo - $43,000.00 (evidence at hearing)

    Contribution from the daughter Hye Min Cho - $7,100.00 (bank statement-Attachment “A”)

    Debt repayment by nice, Min A Lee - $8,000.00 - (Min A Lee’s letter-Attachment “B”)

    Total     $58,100.00

    The funds collected in cash were invested in the business in following way:

    Stock purchases in Seoul Korea - $34,624.03 (Attachment “C”)

    By cash deposits to the company account - $15,362.00 (Attachment “D”)

    Total     $49,986.03

    Transfer of cash and payment for Stock Purchases in Korea

    Applicant’s niece, Ms Min A Lee has further provided letter that she has directly paid for 15 stock purchases from 3 different suppliers in Korea during the calendar year 2011. And she also states in her letter that she always held cash to pay for the stock purchases and the cash was transferred to her through exchanging funds with overseas student’s parents arranged by me.

    Mainly due to tough foreign exchange regulations in Korea, the parents of overseas students can only remit by official means certain limited funds for school fees and minimal living expenses and the amounts permitted by the regulation was never enough for overseas students. Therefore exchanging money with people wishing to send money overseas such as myself, were common practice in Australia and USA where a lot of Korean overseas students were studying.

    I have enclosed as an Attachment “F”, an International Movement Records for Miss Minji Hwang and Ms Mi Jung Kim who assisted me in exchanging money in Korea. Their movement records indicate that Ms Mi Jung Kim was in Australia between 18/1/2008 - 18/11/2012 and Miss Minji Hwang was in and out of Australia in 2011 on two occasions. And my daughters Hyein and Hye Min also travelled to Korea once and they took some cash as well.

    Transfer of purchased stocks to Perth

    I gave evidence at the MRT hearing that my niece Ms Min A Lee delivered purchased goods to my mother and my mum posted goods via local post office. My mum has provided letter in support stating that the purchased goods were delivered to her home and she posted goods on numerous small lots and she has thrown away or misplaced those receipts not realising that they were important receipts to retain. She has also attended the post office where she has posted goods only to find that the records going back as far as 2011 calendar year are not kept. My mum’s letter enclosed as Attachment “G”.

    In 2011, the Claris Antique was expanding to meet the regulations and a lot of furnitures were purchased during 2011 calendar year and these items were purchased from Kum Sung Furniture Pty Ltd in Korea. And my correct recollection of 2011 year reveals that the majority of the stock purchases from Kum Sung Furniture Pty Ltd and SungShinSa were shipped to Perth with the assistance of local importer, Han Ga Wee Pty Ltd. As stated in his letter of 15-Dec-2014, he was looking for fellow importer who could fill up his containers. Mr Bang’s letter is enclosed as Attachment “H”.

    She has also collected EMS postage receipts from 2011 and 2012 and these documents are enclosed as Attachment “I”.

1. The applicant’s evidence on this matter is that Part E of the Form 1217 establishes that the value in Australian dollars of the net assets of the main business in Australia for the 12 months preceding the application made on 27 March 2012 were AUD $93,617.18 (for the 2011 year).  The Tribunal notes that for the 2010 year this asset figure was AUD $84,355.29.

2. The calculation of these figures is supported by financial statements provided under the aforementioned written submissions and by the company accountant as being above $75,000 over the relevant period. The Tribunal notes that these figures are consistent in respect of the answers previously provided under Part E on the Form 1217. There is no evidence or notion that these funds have not 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, and the Tribunal accepts this is the case.

3. Although the applicant’s financial dealings are convoluted and difficult to follow, the Tribunal is satisfied, on balance, from the oral evidence before it and the documents and written submissions discussed (including those of 20 December 2014 as elaborated in the further written submission of 25 February 2016), that the assets owned by the applicant, in the main business, in Australia:

   (i) have a net value of at least AUD 75,000; and

   (ii) had a net value of at least AUD 75,000 throughout the period of 12 months ending immediately before the application is made; and

   (iii) 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.

4. Accordingly, the requirements under cl.892.212(c) are met.

   CONCLUSION

5. The Tribunal has found that cl.892.212(a) and cl.892.212(c) are met.  The Tribunal is satisfied that, as two of the requisite three sub-clauses in 892.212 of Schedule 2 of the Migration Regulations are met by the first-named applicant, it is therefore appropriate for the Tribunal to remit the matter to the Department to consider the remaining criteria for the grant of the Subclass 892 visa. 

6. The secondary applicants’ entitlement to a visa is dependent on whether the first named applicant is successful in obtaining the visa, and then on whether they meet any additional visa criteria applicable as members of the family unit of a person who satisfies the primary criteria for the grant of a Subclass 892 visa (cl.892.231(b)). Given that the application is being remitted to the Department to consider the remaining criteria for a Subclass 892 visa in respect of the first named applicant, it follows that the Department must also consider the remaining criteria in respect of the applications by the remaining applicants.

   DECISION

7. The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets:

   ·cl.892.212 of Schedule 2 to the Regulations.

   Steve Georgiadis
   Member