1606368 (Migration)

[2019] AATA 6685

1606368 (Migration) [2019] AATA 6685 (1 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606368

MEMBER:Alison Mercer

DATE:1 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Class DF subclass 892 visas.

Statement made on 01 November 2019 at 11:08am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – net assets in nominated main business – funds held in an investment scheme – security for commercial lease to operate business – terms of related Deed – net business and personal assets – continual ownership interest in ‘main business’ – broad considerations – not restricted to form 1217 – evidence of import/export activities at time of visa application – active operation at time of Tribunal’s decision – unique or exceptional circumstances – unfair or unreasonable results – well settled in Australia – penalised  for having made a commercial decision – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.11; Schedule 2, cls 892.212, 892.221

CASES
Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328
Rahbarinejad v Minister for Immigration and Border Protection [2018] FCCA 2293
Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513
Tung-Liang Liang v Minister for Immigration [2009] FCA 189
Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301
Yang v Minister for Immigration & Anor [2014] FCCA 1576
Zhu v Minister for Immigration and Border Protection [2016] FCCA 1874
Warnakula Weerasooriya (Migration) [2019] AATA 2500

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 22 April 2016 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 applicants applied for the visas on 26 June 2015. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not meet cl.892.212, which required that the applicant met 2 out of the 3 subparagraphs, (a), (b) and/or (c).  The delegate found that the applicant’s main business in Australia was [Company 1] (trading as [Business 1]) and that the relevant period for consideration was 26 March 2014 to 26 March 2015.  The delegate further found that the applicant did not claim to have employed full-time employees so could not meet cl.892.212(a) and therefore had to meet cl.892.212(b) and (c).

3. In relation to cl.892.212(c), the requirement that the applicant’s net assets in the business were at least $75,000 at the time of the visa application and in the 12 months period immediately before that, the delegate found that the applicant’s net assets in the business as at $53,335 as at 31 March 2014 (according to the financial statements provided by the applicant). The delegate therefore found that the applicant did not meet cl.892.212(a) or (c), and thus did not meet cl.892.212 and could not be granted a subclass 892 visa.

4. The delegate also refused to grant the second, third, and fourth named applicants (the applicant’s husband and children) subclass 892 visas, on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 892 visa, and there was no evidence that they met the primary visa criteria in their own right.

5. The Tribunal received a review application from the applicants on 5 May 2016, which was accompanied by a copy of the delegate’s decision, and an authority by which the applicants appointed a registered migration agent, [name deleted], as their representative and authorised recipient for correspondence. Subsequently, the applicants appointed the third named applicant as their representative.

6. The matter was constituted to a Tribunal Member on 10 July 2019.

7. On 22 July 2019, the Tribunal wrote to the applicants to invite them to a hearing by videoconference on 9 August 2019 to discuss their case. They were requested to provide any supporting submissions and/or documents in support of their case by 2 August 2019.

8. On 30 July 2019, the applicants sent a response indicating that they would attend the hearing.  They also provided the following documents:

   ·statutory declaration from the applicant dated 6 July 2016;

   ·lease between [Company 2] (landlord) and [Company 1] (tenant) and first, second and fourth applicants and [Mr A] and [Mrs A] (guarantors), dated 8 October 2012;

   ·deed dated 11 October 2012 between [Mr A] and [Mrs A] and the first, second and fourth named applicants;

   ·statement from [Company 3] Mortgage Fund dated 31 December 2012, in the name of [Mr & Mrs A] & [Company 1];

   ·[Company 3] tax invoice dated 12 October 2012 to [Company 1] for purchase of [Business 1];

   ·email correspondence between various parties about the requirement for a guarantor for the lease for [Business 1];

   ·[Company 3] Mortgage Fund invoice dated 11 October 2012 for $50,000, paid by cheque by the first named applicant;

   ·cheque drawn by the first named applicant on 11 October 2012 for $50,000 made out to [Company 3] Mortgage Fund;

   ·letter from the applicant’s tax account dated 29 June 2016, stating that the investment of $50,000 made on 15 October 2012 by the first named applicant to [Company 3] was in order to secure the lease of the commercial premises for [Company 1], of which she is the director, should be treated as an asset of the company, and had been included in the company’s financial statements as much. As per the balance sheet of [Company 1] reflected that the company owed the first named applicant $108,027.76 ($53,127.76 of which related to the [Company 3] Mortgage Fund investment) as at 31 March 2014, and $108,614.90 (of which $55,974.88 of which related to the [Company 3] Mortgage Fund investment) as at 31 March 2015;

   ·balance sheets for [Company 1] as at 31 March 2014 and 31 March 2015;

   ·electronic tax return forms for [Company 1] for 2013/14 and 2014/15; and

   ·summary of the first named applicant’s summary of personal and business net assets as at 31 March 2014 and 31 March 2015, together with supporting bank statements and home valuation and title and sale contract documentation.

9. The contents of the first named applicant’s statutory declaration as are follows:

   …

   1. My husband and I are the directors of [Company 1].

   2. In 2012 we decided to attempt to purchase a [business] in [City 1], [Australian State 1], using the company.

   3. On 8/9/12 attempt to buy [Business 1] which is located at [Address 1], [City 1].

   4. We contacted [a] business broker [on] the 8/9/12 to express our interest in purchasing the [Business 1].

   5. Approximately 2 weeks later I spoke to [a] commercial agent of [real estate group], [City 1], and expressed an intention to negotiate a new lease with the Landlord.

   6. As directors of [Company 1] we entered into negotiations with the owner of the [Address 1] premises. We stated that the lessee would be [Company 1].  The landlord indicated that he required, as a condition of the lease, that the payment of the rent should be formally guaranteed by another source.

   7. Approximately 2 weeks later, I approached [Mr A] & [Mrs A] with a request that they guarantee [Company 1]’s obligation to pay the rent.  In return, they wanted [Company 1] to secure their guarantee by placing money in a mortgage investment account with their lawyers. We agreed to do this.

   8. [Mr A] & [Mrs A] then instructed a lawyer [Company 3] in [City 1] to draft a deed to reflect our agreement.  We also asked the same firm to assist us to draw up a lease agreement over the property at [Address 1]…

   9. On the 8 October 2012 my husband and I attended [Company 3]. At that time we signed the lease agreement as directors of [Company 1].  We were also personally listed as guarantors.

   10. A copy of the lease is attached and marked with the letter ‘A.’

   11. On 11 October 2012, my husband and I went to [Company 3] Lawyers with [Mrs A] and [Mr A] to sign the deed.

   12. A copy of that deed of agreement is attached and marked with the letter ‘B.’

   13. Under the Deed, both [Company 1] and [Mr & Mrs A] guarantee the obligation of [Company 1] under the lease.

   14. In consideration of [Mr & Mrs A] agreeing to be guarantor for the lease, my husband and I as the directors of [Company 1] agreed to place a sum of $50,000 into [Company 3] Mortgage Fund to satisfy any claim by Landlord against [Company 1] for breach of terms of the lease.

   15. The Account with the [Company 3] Mortgage Fund is named ‘[Mr & Mrs A] & [Company 1].’

   16 A copy of the Statement of Account is attached and marked with the letter of ‘C.’

   17. On 11 October 2012, I arranged $50,000 cheque payable to [Company 3] to be invested in [Company 3] Mortgage Fund directly from my personal account.  For all intents and purposes this was a deposit made by [Company 1] for the purposes of securing the guarantee of rental payments to be made by [Company 1].

   18. For reasons of efficiency and to save time I did not transfer the $50,000 to an account belonging to [Company 1] from my personal accountant and then transfer it to the mortgage account.

   19. I am aware that this investment was not shown in [Company 1]’s financial statement as a business asset, this was an oversight.

   20. I simply neglected to tell my Accountant that the personal transfer from my account was in fact to be considered to be a transfer from [Company 1].  The migration agent who assisted me with my application for a subclass 892 visa did not investigate or raise the matter.

   21. I note the deed of agreement states the money can only be used to secure the guarantee of the rental payments made by [Company 1], and so can properly be seen as a business asset of that company.

   22 The cost of the preparation of the deed of agreement was rendered to and paid by [Company 1]. A copy of that invoice is attached and marked with the letter ‘D.’

   …

10. The applicants appeared before the Tribunal by videoconference on 9 August 2019 to give evidence and present arguments.

11. The applicant and the fourth named applicant (her older daughter) told the Tribunal that the applicant sold the [Business 1] in December 2016, due to a downturn in the [business]. [Company 1] remained operational but the applicant was now operating an import/export business. She started this in or about June 2016. The Tribunal indicated that legally, this might be a problem with the applicant being able to satisfy 1 of the time of decision criteria, namely cl.892.221, which requires that the main business continues to be active and operational. The Tribunal noted that there was case law suggesting that selling or closing a particular type of business, and starting a different kind of business, even if both businesses are operated by the same company, would not satisfy cl.892.221. It indicated that it would return to this issue following discussion of the net assets issue.

12. The applicant told the Tribunal that she bought the [Business 1] because she liked [City 1] and wanted to run a business there, as both her daughters were undertaking their tertiary studies there. She ultimately sold the business in December 2016 because the owner of the building it which its premises were located was going to sell the whole building. By that time, she had already been thinking about exporting Australian goods to China, and had got her older daughter (the fourth named applicant) to look at opportunities to do that.  The applicant said that she has exported [Product 1] to China, and is due to send another shipment in September 2019. She had also imported some [Product 2] from China that she and her husband sold in a pop up store in a [City 1] shopping centre. The applicant said that she had gone to China herself and now had a local business partner there.  She and the fourth named applicant estimated that the applicant imported [Product 2] in January 2017, sent the first shipment of [Product 1] in October 2017 (with the next one due in September 2019) and went to China for research purposes in 2018.

13. The applicant noted that another Australian business opportunity arose in 2018 for her to invest in 6 [businesses] in [Australian State 1]. There were 8 months of negotiations with a business broker in relation to this opportunity. She and her husband made an offer but ultimately, this was not accepted.  However, it was a time consuming process. The applicant said that while she was confident that the [Product 1] exports would increase, the company was still making a loss because the expenses exceeded the turnover.  She expressed confidence that this would change, as she had a lot of friends in China who [use Product 1], and Australian [Product 1] had a good reputation there.

14. In relation to the $50,000 cheque in her own name which she deposited in the [Company 3] Mortgage Fund, the applicant confirmed that the landlord of the premises for the [Business 1] in [City 1] required a guarantor for the lease because the applicant and her husband were temporary residents.  [Mr and Mrs A] were family friends, and so the applicant approached them and they agreed to be guarantors, subject to a separate deed requiring $50,000 to be held in the [Company 3] Mortgage Fund to indemnify [Mr and Mrs A] if there was any breach by the applicant during the life of the lease. The applicant said that the funds were rolled over in the fund until she sold the [Business 1].  The deed expired between her and [Mr and Mrs A] expired on the sale of the business. In her view, the money was always an asset of the company – either legally or beneficially – and the only reason that she used a personal cheque to deposit the money with the [Company 3] Mortgage Fund was because it was quicker than having to go to the bank to draw a company cheque. She pointed out that even during the life of the lease, [Mr and Mrs A] were only entitled to access the $50,000 if the lease was breached, which it had not been. The funds were effectively [Company 1]’s asset.  The applicant and the fourth named applicant noted that the letter from the accountant dated 29 June 2016 and the balance sheets for 2013/14 and 2014/15 reflected this.

15. The fourth named applicant confirmed she was now working in [City 1] [since] graduating from [University 1], while her younger sister (the third named applicant) had just finished her [qualification] there and was working in this field in [City 1] as well. She told the Tribunal that their older sister also completed an Australian Bachelor degree [at] [University 1] but had returned to [Country 1], where she now worked as [an occupation]. The second named applicant told the Tribunal that he still has a [specified] business in [Country 1], so divides his time between there and Australia, whereas his wife (the applicant) is predominantly based in Australia.

16. The applicants told the Tribunal that their lives had effectively been on hold for 3 years since their subclass 892 visas were refused, which had been emotionally distressing for them. Their original migration agent became uncontactable, and the second agent they engaged, [at] the time that the review application was lodged, had his registration cease.  This too had been stressful, as they were unaware that this had occurred until the Tribunal wrote to them about it. The fourth named applicant despite the 3 years of uncertainty since the visa refusals, her parents had remained focussed on establishing businesses which would benefit Australia. She emphasised that her mother continued to operate [Company 1], it was not a passive company, and she was running it to ultimately make a profit.  The applicant felt that she had a solid customer base for Australian [Product 1] in China, and had now opened a retail shop in Fujian province with her local business partner to sell Australian [Product 1].

17. The fourth named applicant noted that she and her sister had now been living in Australia for over 10 years, and that the whole family loved it in [Australian State 1].  Her parents had a social network here, and her mother’s English had improved.  The applicants asked the Tribunal to consider the fact that the applicant’s company, [Company 1], was still operating a business, albeit a different one from the one it operated at the time that the visa applications were made.

18. The Tribunal undertook to write to the applicants after the hearing to indicate what further information and/or submissions might assist it to assess the case.

19. On 16 August 2019, the Tribunal wrote to the applicants to advise that, as discussed at the hearing, the Tribunal was considering not only the criterion in dispute as identified by the delegate at the time of the visa application (being cl.892.212(c), the level of net assets in the main business at the time of application and in the 12 months prior to that) but also various criteria that had to be met at the time of the Tribunal’s decision.  The Tribunal noted that, in particular, it had to consider whether, at the time of its decision (2019), the main business met cl.892.221, which required (amongst other things) that the applicant continued to have an ownership interest in 1 or more actively operating main business(es) in Australia. The Tribunal further noted that, as discussed at the hearing, there was case law indicating that cl.892.221(a) would not be satisfied if the main business relied upon by an applicant had changed since the time of the visa application. The Tribunal referred to several cases, including Yang & Ors v Minister for Immigration & Anor [2014] FCCA 1576, in which an applicant asserted that there was nothing in the wording of cl.890.211 and cl.890.221 (which were worded almost identically to cl.892.211 and cl.892.221) that prevented an interest in one business ceasing and the applicant acquiring a relevant interest in another business, given that the policy for the visa category ‘would seem to be to encourage entrepreneurship, which may include the buying, building up and selling of businesses, and the construction put on cl.890.221 by the Tribunal is an “arbitrary and extreme approach” that would inhibit that policy.’ However, the Court held that ‘[c]ontrary to the applicants’ submissions, it was clear when clause 890.211, 890.221 and r.1.11(2) of the Regulations are read together that one or both of the main businesses nominated for the purposes of satisfying cl.890.211 must be those used to satisfy the criteria in cl.890.221’ [paragraph 65].

20. The Tribunal noted that after quoting r.1.11, the Court in Yang said as follows:

    Regulation 1.11(2) makes it clear that an applicant can only nominate up to two main businesses for the purposes of an application. The time of application criterion requires the nomination at time of application of one or more main businesses in Australia which must, by r.1.11, be limited to two. An applicant must continue to hold an ownership interest in those main businesses over a period of two years [paragraph 67]…

    It is, in my view, clear that the regulation is intended to ensure continuity in the holding of an ownership interest. Such continuity is emphasised by requirements in r.1.11(1)(b) to maintain a direct and continuous involvement in day to day management of those businesses. The requirement in cl.890.221 is that an applicant continue to satisfy the requirement in light of the limitation on the number of main businesses that can be nominated for the purposes of the Regulations at the time of application. There is nothing “extreme” or “arbitrary” in such a construction. Rather, such a construction is consistent with the regulatory requirement for ownership continuity over a two year period prior to application. A similar argument made by the applicant was rejected in relation to a similar regulation in Tung-Liang Liang v Minister for Immigration [2009] FCA 189… [paragraph 68]

1. The Tribunal advised that this approach was also endorsed by the Federal Circuit Court in the more recent case of Zhu v Minister for Immigration and Border Protection [2016] FCCA 1874, where the Court found that the decision in Liang was directly applicable to cl.892.211(1) and cl.892.221. The Tribunal noted that as the applicant’s evidence was that [Company 1] closed or sold [Business 1] in mid 2016 and commenced an import/export business in the same year, it appeared that the applicant might not meet cl.892.221, as this was not the same ‘main business’ relied upon at the time of the visa application to meet cl.892.211(1). The Tribunal invited the applicants to provide any comments or response they wished by 30 August 2019.

2. On 20 August 2019, the applicants requested an extension of time to respond, which the Tribunal granted until 30 September 2019.

3. On 29 September 2019, the Tribunal received a response from the applicants, with a note that the attached submission and documents contained commercial information which they wished to remain confidential. The attached submission makes the following points (in summary):

   ·the applicant believes that she meets the requirements of cl.892.221 at the time of the Tribunal’s consideration;

   ·in relation to the requirement to continue to have an ownership interest in 1 or more actively operating main businesses in Australia, the sale of business contract for [Business 1] dated December 2016 specifically provided at clause 16 that [Company 1] would retain the business name and the purchaser would trade using a different business name;

   ·even though [Business 1] had ceased trading in December 2016, the applicant decided to retain the business name with the intention to trade again under that name when there was an opportunity to do so in future;

   ·the applicant would not have made the decision to transfer the lease if the [business] had been profitable.  She had been fully engaged in that business since 2012 and had created strong relationships with local customers, and had actively participated in the local business community;

   ·unfortunately, due to the increased rent, competition among [businesses] around [City 1], increased labour costs and changes in [product] market trends, the business struggled to make a profit by 2016. Moreover, the landlord of the premises intended to sell the whole building in 2017. Due to the applicant’s visa status, this created uncertainty for the business, particularly because the business would have had to renew the lease with a new owner;

   ·although the [Business 1] ceased trading in December 2016 in its [Address 1] premises, the applicant had been engaging with a commercial property agent with a view to securing a future retail space to re-open the business;

   ·the applicant was aware that she nominated 1 main business – [Company 1] – in the form 1217 at the time she made the visa application. She was unaware that she had to include its 2 separate business activities: [Business 1] and the import/export business. However, ever since being granted her subclass 163 visa, the applicant’s main interest was to set up and import and export business at the same time as running a [Business 1];

   ·in May 2012, the applicant visited Xiamen in China to explore export and import opportunities, and concluded that there was an opportunity to export [Product 1], [Product 3], [Product 4] and [Product 5] from Australia. She engaged a number of distributors and visited their warehouses in China;

   ·in August – September 2012, she decided to purchase the [Business 1] via [Company 1], and it began trading in October 2012. Running [Business 1] gave the applicant opportunities to engage with a variety of people She engaged [Mr B], who worked as a business consultant [in] [City 1] from time to time to discuss the possibilities for an import/export business. [Mr B] provided professional advice and ideas to assist the applicant at no cost, and had provided a reference in connection with her visa application;

   ·the applicant and her husband also engaged with [a] CEO of [State 1] Chamber of Commerce and Industry on occasions, and he assisted them in gaining contact details for various [Australian State 1] export [companies]. He also introduced the CEO of [a business] to them in person;

   ·the applicant and her husband also consulted with [a person] who worked in [Australia Post], to gain further information about shipping and logistics requirements;

   ·throughout the year, the applicant gained significant knowledge about procedures for importing and exporting, mainly through direct communication with people in the field with extensive knowledge of this area. The applicant’s husband had also been actively involved in this process and had formed a good relationship with various business people. He had also assisted the applicant with the translation process;

   ·in September 2014, the applicant contacted some [Product 4] [suppliers] and in November 2014, she purchased the first batch of [Product 4] as a trial, part of which was sold directly to overseas customers, while part was used as samples to engage potential customers. She received positive feedback from customers and wanted to proceed with further orders. However, the supplier ([name deleted]) could not meet the demand and quantity required by customers and due to the uncertainty of the ordering process and the limited supply of product from that supplier, the applicant decided to switch her focus to another product;

   ·between August and September 2014, she also engaged with [Product 5] producers and decided to purchase a batch for a trial for the markets in [Country 1] and China.  Again, part of the batch was used as samples for potential customers and part was sold directly overseas. However, similar issues arose with supplies being limited due to a poor season;

   ·the applicant also explored the possibility of exporting [Australian State 1 Product 3] and took a tour of [named business] with her husband;

   ·both [Business 1] and the import and export business were being operated via [Company 1].  Only one business account had been used since 2012. Therefore, both [Business 1] and the import/export business should be assessed as main businesses operated under [Company 1] at the time that the visa application was made;

   ·a table with a timeline was attached to summarise the above information and to show what current activities were being undertaken;

   ·since 2017, [Company 1] had invested $70,000 in [Company 2]. Business sales transactions did not flow through [Company 1]’s bank account, and [Company 1] was yet to claim any expenses through the ATO. Therefore, its BAS showed $0 over the period, as [Company 2] was yet to make any return on the investment made by [Company 1].  In 2017, both companies agreed that they would establish a formal company structure once the business became stable.  The applicant was aware of the risk and sought advice from an accountant about this on 7 July 2019. Due to the high volume workload and the busy tax return period, she and the accountant were still working on this issue;

   ·in Yang’s case, the applicant nominated 2 restaurant businesses at the time of the visa application. However, the applicant ceased to be a director of the nominated businesses and sold his shares in the company. The nominated business was subsequently deregistered and the applicant began operating a supermarket business. The Tribunal in that case found that the applicant no longer had an ownership interest in a main business, as he had ceased being a shareholder. It also found that he could not rely on a new company that was not nominated by him at the time of the visa application;

   ·contrary to that case, the applicant in this case had an 80% ownership interest in [Company 1], and continued to do so. She had never sold or transferred her shareholding. Even though the [Business 1] ceased operating in December 2016, [Company 1] retained this trading name and the applicant continued to seek opportunities to reopen it at a new location. Furthermore, the import/export business was not a newly established business, but had in fact been operating under the auspices of [Company 1] before the applicant made her visa application, and it continued to operate in 2019;

   ·in Zhu & Ors v Minister for Immigration & Anor [2016] FCCA 1874, the applicant operated one business (meat processing and wholesale) at the time of visa application, but ran a different business [at] the time of decision. The Tribunal found that the applicant could not rely on an ownership interest in a business at the time of decision unless he had nominated the business as a main business at the time of application;

   ·contrary to that case, the applicant had been running the 2 businesses (the [Business 1] and the import/export business) simultaneously under [Company 1], and the import/export business existed at the time of the visa application, and continued to do so;

   ·in Warnakula Weerasooriya (Migration) [2019] AATA 2500, the Tribunal referred to the fact that the Department’s policy guidelines (PAM3) recognised the ability to combine the 2 main businesses which were operated sequentially, and further stated that there was no legal requirement that businesses had to be nominated using form 1217;

   ·the applicant was aware that she had nominated 1 business – [Company 1] – in the form 1217.  However, she was not aware, and was not advised by her then migration agent, that she should have included both [Business 1] and the import/export business in the form. It was reiterated that [Company 1] had operated the same business bank account since 2012, and transactions for both [Business 1] and import/export businesses went through this account; and

   ·a summary of the applicant and her spouse’s business and personal net assets in Australia as at August 2019 indicated that these amounted to $330,289.05 (table of these attached). 

4. For the following reasons, the Tribunal has concluded that decisions under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The original issue in the present case was whether the applicant meets cl.892.212, which provides as follows:

   892.212

   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 1 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 AUD250 000; and

   (ii)      had a net value of at least AUD250 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 AUD75 000; and

   (ii)      had a net value of at least AUD75 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.

6. There is no evidence before the Tribunal that the appropriate regional authority has determined that there are exceptional circumstances in this case.

7. As noted above, the delegate found that cl.892.212 was not met because:

   ·the applicant did not claim to meet cl.892.212(a)(i) (at least 1 full time Australian employee at the time of application and in the preceding 12 months);

   ·the applicant’s net assets in her nominated main business were less than $75,000 in the 12 months immediately preceding the visa application (the delegate assessed them as $53,334 as at 31 March 2014, as she did not accept that approximately $50,000 held in a lawyer’s trust account was an asset of the main business) and the applicant therefore did not meet cl.892.212(c); and

   ·therefore, the applicant did not meet 2 out of the 3 requirements in cl.892.212.

8. In addition, as discussed with the applicants at hearing, the applicant must also satisfy cl.892.221 at the time of the Tribunal’s decision. That clause provides as follows:

   892.221

   The applicant:

   (a)  continues to satisfy the criteria in clauses 892.211 and 892.214; and

   (b)  if the applicant met the requirements of paragraph 892.212(b), continues to meet those requirements.

9. Clause 892.211(1) requires that the applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia. 

10. The Tribunal has considered each of these criteria in turn.

    Clause 892.212

11. It was not disputed that the applicant sought to satisfy cl.892.212(b) and (c), and did not claim to meet cl.892.212(a).

12. The Tribunal finds that the relevant period for consideration is 25 June 2014 to 25 June 2015, noting that under policy, the delegate accepted financial statements ending on 31 March 2014 and 31 March 2015 as relevant and acceptable to assess this period.

    Cl.892.212(c)

13. In relation to cl.892.212(c), the delegate found that, according to the figures provided by the applicant herself with the visa application, the value of the net assets in the main business, [Company 1], were $53,334 as at 31 March 2014, and $84,885 as at 31 March 2015. As the 31 March 2014 figure was less than $75,000, cl.892.212(c)(ii) was not met.

14. The applicant contended that an additional $50,000 (approximately) should be included at both the above points in time, being funds held in the [Company 3] Mortgage Fund, which the applicant has provided evidence of having deposited to secure a guarantee from [Mr and Mrs A] in relation to the lease of the premises taken out by [Company 1] to operate the [Business 1].

15. From the documentary evidence provided, and the applicant’s oral evidence at hearing, the Tribunal is satisfied that the above transaction took place for the reasons, and in the manner, described by the applicant in her written submissions and at the hearing. The question is whether these funds can be counted as an asset of [Company 1].

16. The applicant contends that they can, and should be, on the basis that they were solely used for the purpose of securing the commercial lease for [Company 1] to operate the [Business 1].  Although the deposit was made by the applicant from her personal cheque account into the [Company 3] Mortgage Fund, the applicant argues that this was simply because it was expedient to do so than to deposit the funds into [Company 1]’s account and then transfer them to the Mortgage Fund. She further argued that the funds, once deposited, could not be accessed by [Mr and Mrs A] unless and until there was a breach of the lease in relation to which [Company 1] was required to indemnify them, and that this never occurred. At the expiry of the lease, the Deed also ceased, and the funds were rolled over and held by the Fund on behalf of [Company 1] for use in future business activities.

17. The Tribunal notes that the [Company 3] Mortgage Fund account is held in the names of [Company 1] & [Mr & Mrs A]. As noted by the applicant, the Deed of agreement dated 11 October 2012 is between [Mr and Mrs A] and the first, second and fourth named applicants, and provides that in return for [Mr and Mrs A] agreeing to be guarantors for the [Company 1] commercial lease, the first, second and fourth named applicants have agreed to place a sum of money on deposit for it to be employed to satisfy any claim by the landlord against [Company 1] for a breach of the terms of the lease.

18. It is conceded by the applicant that these funds were not listed as an asset of [Company 1] in the financial statements initially provided to the Department with the visa application. However, she subsequently provided a letter dated 29 June 2016 from [a tax agent], the accountant/tax agent for [Company 1] and the applicant, in which the Compliance Manager states that [the tax agent] believes that the [Company 3] Mortgage Fund amounts should be treated as part of the applicant’s director’s loan to [Company 1], and had therefore been included in amended financial statements for the relevant financial years on this basis, with the result that the following should be accepted as the applicant’s total director’s loan to [Company 1]:

    ·    $108,027.76 (of which $53,127.76 relates to the [Company 3] Mortgage Fund amount) as at 31 March 2014; and

    ·    $108,614.90 (of which $55,974.88 relates to the [Company 3] Mortgage Fund amount) as at 31 March 2015.

19. The Tribunal is satisfied that although the above amounts were not held in [Company 1]’s account, they nevertheless represent funds advanced by the applicant for the benefit of [Company 1] (to secure its commercial lease). Although the [Company 3] Mortgage Fund account is in the name of both [Company 1] and [Mr and Mrs A], the Tribunal is satisfied from the terms of the related Deed of 11 October 2012 between [Mr and Mrs A] and the first, second and fourth named applicants that it was agreed that the first, second and fourth named applicants would place a sum of money on deposit for it to be employed to satisfy any claim by the landlord against [Company 1] for a breach of the terms of the lease, and that the terms of the Deed specify that it could the funds could not be accessed or controlled by [Mr and Mrs A] unless there was a breach by [Company 1] that required them to be indemnified as guarantors of [Company 1]’s lease.  The Tribunal is further satisfied that this did not occur during the term of [Company 1]’s lease, which was in force between 31 March 2014 and 31 March 2015.

20. The Tribunal notes that there is no definition of ‘asset’ in the Act or Regulations.  It further notes that the Australian Accounting Standards Board (AASB) principles are that, whereas a claim pursued through legal processes with an uncertain outcome is considered as a ‘contingent asset’ not recognised in financial statements to avoid recognition of income that may never be realised, where the realisation of the income is probable, the AASB suggests that it should be disclosed, and that where it is ‘virtually certain,’ it should be recognised as income in the financial statements of the relevant entity or individual. In the Tribunal’s view, this is supported by the letter from [the tax agent], which indicates that the [Company 3] Mortgage Fund sum has now been added to the director’s loan component of [Company 1]’s financial statements for 2013/14 and 2014/15.

21. In this case, the Tribunal is satisfied that is appropriate to recognise the applicant’s director’s loan to [Company 1] as including the funds in the [Company 3] Mortgage Fund as at 31 March 2014 and 31 March 2015 and it accepts that the correct net assets in [Company 1] are therefore as follows:

    ·$108,027.76 as at 31 March 2014; and

    ·$108,614.90 as at 31 March 2015.

1. This is above the required sum of at least AUD $75,000 in net business assets at the relevant points in time. There is no evidence before the Tribunal to suggest that these funds were not acquired lawfully by the applicant.

2. The Tribunal is satisfied that the applicant therefore meets cl.892.212(c)(i) to (iii) and thus meets cl.892.212(c) as a whole.

   Cl.892.212(b)

3. The Tribunal notes that the delegate did not query the applicant’s assessment of her net business and personal assets for the purposes of cl.892.212(b) (except to the extent that the delegate did not accept that the funds in the [Company 3] Mortgage Fund could be counted as a net asset of the business, as discussed above).

4. With her visa application, the applicant provided the following summaries of her personal and business net assets:

31 March 2014	31 March 2015
Property (family home) in [Australian State 1]	n/a	$169,731.98
Bank account funds	$199,274.28	$17,261.52
[Company 3] Mortgage Fund	$53,127.76	$55,974.88
Other net assets of the business (ownership share plus loan to business)	$52,195.10	$84,885.89
TOTAL	$305,597.14	$327,854.17

1. The applicant also provided documentary evidence of her home loan balance and bank balances, plus financial statements for [Company 1] showing her director’s loan. On the basis of this evidence, and accepting that the [Company 3] Mortgage Fund amounts should be included as an asset of [Company 1] (as they can be appropriately seen as forming part of the applicant’s director’s loan to the company), the Tribunal finds that the applicant’s personal and business net assets exceeded $250,000 at both 31 March 2014 and 31 March 2015. As noted above, the Tribunal has no reason to doubt that the applicant acquired the assets lawfully.

2. Accordingly, the Tribunal finds that the applicant meets cl.892.212(b)(i) to (iii) and therefore meets cl.892.212(b) as a whole.

3. As the applicant meets the requirements of cl.892.212(b) and (c), the Tribunal finds that she meets cl.892.212 as a whole. 

   Clause 892.221

4. The issue that has arisen since the delegate’s decision is whether the applicant can satisfy cl.892.221, given the applicant’s evidence at hearing that the [Business 1], the business operated by [Company 1] at the time of the visa application, had ceased operation in late 2016.  The applicant has argued that her main business should be regarded as [Company 1], the legal entity via which she always intended to operate [Business 1] and an import/export business, and that that company had continued to operate an import/export business after the closure of [Business 1]. She argued that this thus satisfied cl.892.221(a).

5. The Tribunal has reviewed the Department’s policy guidelines (as set out in the most recent version of its Procedures Advice Manual, or PAM3) in relation to ‘main business (or business(es)),’ noting that while policy is not binding on the Tribunal, it is a useful aid to consistency of decision-making (where it is not itself inconsistent with the underlying legislation). Gen Guide M – Business Visas – Visa application and related procedures provides as follows: ‘…If a visa applicant has ownership interests in more than one qualifying business, they can nominate only two businesses as main businesses, regardless of whether the businesses are operated by different entities or the same business… Trading entities may be considered as one main business if the parent company is nominated and the trading entities and parent company operate under the same ABN… A business is a main business if it meets the ownership requirements [in r.1.11] and

   ·the applicant maintains or 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

   ·the business is a qualifying business, that is operated for the purpose of making a profit by providing goods and/or services (other than the provision of rental property) to the public and which is not operated primarily or substantially for the purpose of speculative or passive investment.

   Officers should assess the aspects of the main business definition holistically and not focus on one area only. Passive investors in a business would not meet this requirement… (PAM3, GenGuide M – Business Visas – Visa application and related procedures – Business ownership and assets – Eligible Business – About ‘main business’).

6. The Tribunal has also reviewed the relevant case law on this issue; that is, whether the fact that the applicant ceased 1 business activity and started another, in the period between the delegate’s decision and the Tribunal’s consideration, satisfies cl.892.221(a). This raises the question of whether the applicant’s ‘main business’ should be regarded as the business activity originally nominated in the visa application, or the legal entity through which the business is operated (in this case, the registered Australian company, [Company 1]).

7. In Tung-Liang Liang v Minister for Immigration and Citizenship [2009] FCA 189, the Federal Court considered cl.845.213 and cl.845.221, which are essentially in the same terms as cl.892.211 and cl.892.221. In this case, the applicant nominated 2 main businesses in his visa application, both operated by the same company, Golden Net International Pty Ltd (GNI). When trading as GNI Finance Corporation, GNI carried on a finance business. The second, identified business operated by GNI was an export business. After lodgment of the visa application, the applicant registered a second company, United Link Corporation Pty Ltd (United), which operated a computer business, on which the applicant sought to rely as one of his main businesses at the time of decision. The Tribunal in that case found that GNI conducted 2 main businesses which the applicant had nominated at the time of the visa application, and that he could not nominate a third main business, operated by United, for consideration at the time of decision. The Tribunal also found that the applicant could not satisfy cl.845.221 because he did not continue to satisfy cl.845.213. The applicant argued that a legal entity could not operate more than 1 business, and as such, only 1 business had been nominated by him at the time of application, and it followed that it was possible for him to nominate, and to rely upon, United, as a second main business.

8. The Court dismissed the applicant’s appeal, finding that there was nothing about the meaning of the word ‘business,’ as used in the context in the Regulations, which carried with it the necessary corollary that a legal entity can only have or conduct 1 ‘business.’  The Court held that it was open to the Tribunal, as a question of fact, to conclude that GNI operated 2 main businesses. It further held that this conclusion, and the limitation of nominating 2 businesses in the definition of ‘main business’ in r.1.11 had the necessary consequence that there was no error in the Tribunal’s conclusion that it was not able to consider Uniting for the purposes of deciding whether it was satisfied that the applicant met the visa criteria.

9. In obiter, the Court also observed that the applicant did not have an ownership interest in United in the 18 months preceding the date of the visa application, and that cl.845.213(a) carried a temporal limitation, which looked 18 months immediately preceding the application. It noted that there was a further and cumulative temporal limitation in cl.845.213(b) that the ‘ownership’ in 1 or more ‘main businesses’ over the period of 18 months immediately preceding the application must be maintained, ‘continue,’ throughout whatever period elapses thereafter until the application is made. The intention, reflected in the language of cl.845.213(b), was that there should be no gap in the holding of an ‘ownership interest.’ The continued interest must also be one ‘of that kind;’ in context, the reference in cl.845.213(b) to ‘of that kind’ was to be read as a reference to the ‘main business’ or businesses referred to in cl.845.213(a). 

10. In Yang v Minister for Immigration and Border Protection [2014] FCCA 1576, the Federal Circuit Court of Australia considered cl.890.221 (which is worded almost identically to cl.892.221) in circumstances in which the applicant nominated 2 companies as her ‘main businesses’ in her visa application, but where the first company had ceased trading before the visa application was made, and soon after it was made, ceased her involvement with the second company. The Tribunal found that cl.890.221 was not met, noting that the applicant did not have an ownership interest in either business nominated in her visa application, and it rejected an argument that a new business, formed after her visa application was made, could be taken into account. The Tribunal found that r.1.11(2) prevented the applicant from nominating more than 2 main businesses and that, in any event, she could not rely on a new company that was not nominated at the time of application. On appeal, the applicant argued (amongst other things) that the Tribunal had erred in requiring that the businesses for cl.890.221 be the same as those used to satisfy cl.890.211. The Court dismissed the appeal, holding that it was clear, when cl.890.211, cl.890.221 and r.1.11(2) were read together, that 1 or both of the main businesses nominated for the purposes of satisfying cl.890.211 must be those used to satisfy the criteria in cl.890.221. The Court also applied an earlier case, Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328, in which it was held that a single ‘business’ can be operated by multiple legal entities.

11. More recently, in Zhu & Ors v Minister for Immigration [2016] FCCA 1874, the Federal Circuit Court considered a case in which the applicant nominated a company, PCK Food Services Pty Ltd, in his visa application. At that time, the company had purchased an existing meat processing and wholesale business. Following the lodgment of the visa application, the applicant sold the business to VP Poultry & Meats Pty Ltd, and PCK Food Services Pty Ltd was wound up. VP Poultry & Meats Pty Ltd subsequently sold the meat processing and wholesale business to a third party and purchased a [business]. The Department refused the applicant’s subclass 892 visa application, and the Tribunal affirmed that decision, finding that the business nominated by the applicant as his main business was the meat processing and wholesale business, which was operated first by PCK Food Services Pty Ltd and then by VP Poultry & Meats Pty Ltd (the applicant being a shareholder of both). The Tribunal concluded that, by the time of the delegate’s decision (and its decision), the applicant did not satisfy cl.892.221 because he was not actively operating the same main business as he had nominated at the time of the visa application, as the business had changed from the meat processing business to a [business] during that time. In reaching this conclusion, the Tribunal relied on the Federal Court decision in Liang.

12. The Federal Circuit Court noted that in Liang’s case, the Federal Court had regard to the observation of the Full Court of the Federal Court in Xiang v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 301 that the use of the words ‘continues to have’ required that there be no gap in the holding of an ownership interest, and therefore found that in order to satisfy cl.845.221 (which is in the same terms as cl.892.221), it is necessary for an applicant to continue to have an ownership in the same main business at the time of decision. In other words, it was not possible for the applicant to rely on an ownership interest in a business that did not exist at the time of application to satisfy the requirements of cl.845.221. The Court drew support for this view from the fact under r.1.11(1)(b), a business will only be a ‘main business’ in relation to an applicant if that applicant ‘maintains, or has maintained, direct and continuous involvement’ in the day to day management of the business, regarding this as a further textual indication that, in order to satisfy cl.845.221, it was necessary for the applicant to continue to have an ownership in the same business at the time of decision. The Court considered that to allow the applicant to rely on a different ownership interest to satisfy cl.845.221 would subvert the continuity of involvement required by r.1.11(1)(b).

13. Having regard to the above, the Federal Circuit Court dismissed the applicant’s submissions that Liang and Yang had been wrongly decided, and upheld the Tribunal’s application of Liang  and its decision that the applicant did not meet cl.892.221 as the main business relied upon at that time had not been nominated in the visa application as a main business.

14. The most recent case in which these issues have been considered is the Federal Circuit Court decision of Rahbarinejad v Minister for Immigration and Border Protection [2018] FCCA 2293, in which the Court also considered cl.892.211 and cl.892.221. As part of the visa application, the applicants completed a form 1217, nominating a trust called the Petroyas Business Trust as 1 of the ‘main businesses’ for the application. The applicants had settled another trust called the Petroyas Family Trust and had an interest in 2 businesses, Petroyas Nominees Pty Ltd and Petroyas Pty Ltd. Petroyas Pty Ltd generated profits and incurred expenses between 2011 and the date of the visa application, while Petroyas Nominees Pty Ltd entered into a franchising agreement in July 2013 and had actively operated since that time. The applicant was requested by the Department to provide business activity statements (BAS) from certain periods in 2013 and 2015 and asked why they had been submitted late to the ATO. After considering the applicants’ responses, the delegate found that the applicants did not meet cl.892.211. On review, the applicant provided a financial report of the Petroyas Family Trust for the 2012, 2013, 2014 and 2015 financial years. The applicants argued that Petroyas Pty Ltd had been trading since 2012 and that therefore the requirements of cl.892.211 were met if that business was considered as the ‘main business.’ The Tribunal, on review, concluded that it was not satisfied that cl.892.211 was met based on the nominated business in the form 1217, and that there was no evidence to suggest that ‘the businesses’ were operating prior to August 2013. It also found that cl.892.211(2) was not met as the BAS were submitted after the lodgment of the visa application.

15. In seeking judicial review, the applicants argued that the Tribunal erroneously relied on the absence of a BAS return over 1 or more particular periods as evidence of the absence of trading activity.

16. The Court upheld the applicants’ appeal and held that the Tribunal was required to conduct an inquisitorial investigation into the applicant’s claims. The Tribunal’s statutory duty was to assess the ‘complicated elements of cl.892.211 against the complex commercial arrangements of the applicants.’ The proper discharge of that statutory duty was not limited to ‘minutely scrutinising’ the entries in the form 1217: the Tribunal was required to investigate the totality of the factual scenario that presented itself to the Tribunal.  The question for the Tribunal was whether a particular business was a ‘main business.’ In this case, the Tribunal had focussed on the business listed in the form 1217, and had analysed the situation thereafter from that starting point, and that was an error.

17. The Court further held that the Tribunal failed to consider relevant information, and therefore, it failed to consider a relevant consideration. The Court found that the Tribunal stated, erroneously, that there was no evidence to suggest that ‘this business or businesses’ were operating prior to August 2013. The Petroyas family trust report for the year ended 30 June 2012 revealed income of $49,267 made up of contract work. The Court considered that an inference could be drawn to the effect that some or all of that income was derived from the business activity prior to 30 June 2012 and most likely in the period 1 July 2011 to 30 June 2012. In other words, in the period 2 years prior to the visa application, Petroyas Nominees Pty Ltd was operating and therefore deriving income.

18. The Court considered that it was equally erroneous for the Tribunal to state that the absence of a BAS in a particular segment of a financial year was an insuperable aspect of the applicants’ case. The Tribunal erroneously focussed on the proposition that the BAS provided the definitive answer as to whether there was in fact business activity in a given period, and that in the absence of a BAS for a given period rendered unproven business activity for that period.

19. Essentially, the judgment indicates that the Tribunal should undertake a broad consideration of an applicant’s ‘main business,’ and not restrict itself to the business nominated in the form 1217. However, the Court did not specifically consider cl.892.211(2)(b), which requires the applicant to have lodged BAS statements with the ATO for a specified period prior to the visa application, and to have included them with the visa application at the time of lodgment.

20. The Tribunal considers that the main principles that can be derived from the above case law are:

    ·decision-makers should not restrict themselves to only considering the legal entity or business listed in the form 1217 lodged at the time of the application for a subclass 892 visa but should look at the supporting evidence provided at that time to ascertain what main business(es) is or are being nominated;

    ·‘main business’ is not restricted to a particular legal entity, although a particular legal entity may operate more than 1 kind of business at any given time, and the same main business may be operated by different legal entities at different times; and

    ·a main business not in existence at the time of the visa application cannot be relied upon to satisfy cl.890.221 at the time of decision.

21. The Tribunal has reviewed the form 1217 in this case, together with the supporting evidence provided at the time that the subclass 892 visa application was made on 26 June 2015.

22. In Part D of the form 1217, the applicant lists [Company 1] as her main business, and states that the major activity of this business is ‘[deleted].’ Elsewhere it is stated in the form that the business is trading as the [Business 1].  The supporting documents provided relate to the incorporation of [Company 1], and the operations of the [Business 1], including bank accounts, financial statements and tax returns for the company, the commercial lease for the [Business 1] premises, evidence of its suppliers and employees, and photographs of the premises and the applicant engaged in work there.  There is no indication that the applicant was conducting any other kind of business activity (such as importing and/or exporting goods) through [Company 1] at this time, or in the preceding 12 months.  This was first raised by the applicant at the Tribunal hearing in August 2019.

23. In August and September 2019, the applicants made submissions that (in summary):

    ·it was conceded that [Company 1] sold [Business 1] (that is, it ceased to trade as the [Business 1] and transferred the lease to another party) in December 2016 to a third party, but it retained the registered business name ‘[Business 1];’

    ·this was a commercial decision as the [Business 1]’s profitability was suffering due to a range of commercial factors, but the applicant remained hopeful that it would be possible for [Company 1] to operate the [Business 1] in another premises at some future point;

    ·the applicant was unaware that she should list more than 1 main business in her subclass 892 visa application.  However, since 2012, she had been exploring import/export opportunities while the holder of a subclass 163 (Provisional Business Owner) visa, and she continued to do so to date;

    ·the applicant undertook considerable research into [Australian State 1] products for export to China from 2012 onwards. In late 2014, she exported trial batches of [Product 4] and [Product 5] to China but did not proceed to export further shipments of either product due to supply issues;

    ·therefore, it should be accepted that the applicant’s main business was [Company 1], which had 2 business activities – the [Business 1] and the import/export business – and the company continued to operate, pursuing the import/export business, at the time of decision. The fact that [Company 1] conducted both kinds of business activities could be evidenced by the fact that it operated only 1 bank account, and transactions for both the [Business 1] and the import/export business appeared in this bank account.

1. The Tribunal has considered the above submissions carefully. While mindful of the fact that it is not confined to considering only a business (or businesses) listed in the form 1217, the Tribunal finds that the main business identified at the time of the visa application (taking into account not just the form 1217 information but the supporting documentation) was [Company 1], operating the [Business 1].  There was no identification of the fact that [Company 1] was also operating an import/export business, and no evidence that it was in fact doing so.

2. This is consistent with the applicant’s submissions that up until mid to late 2014, she and her husband were engaged in research about potential export products but had not actually traded in this area. The applicant exported 2 shipments to China via [Company 1] in or about September 2014 (being [Product 4] and [Product 5] from [Australian State 1]) but nothing further until 2017, when [Company 1] imported 1 shipment of [Product 2] from China and exported 1 shipment of [Product 1] to China.

3. In the Tribunal’s view, this does not support a conclusion (a) that the applicant’s main business at the time of the visa application included importing/exporting, or that (b) [Company 1] is actively operating an import/export business at the time of the Tribunal’s decision. (In relation to the latter issue, the Tribunal notes that while there is no definition of ‘actively operating’ in the Act or Regulations, the Federal Circuit Court of Australia (FCCA) in Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513 held at [71] that it was appropriate and legally open to the Tribunal to find that ‘actively operating’ involved consideration of whether the company in that case exhibited activity of a ‘repetitive, continuous and permanent character’, in which it (a) actively sought to generate business, (b) in fact generated trade and custom, and (c) derived some financial gain for its activities in the relevant period. The Tribunal is not satisfied that [Company 1] currently exhibits those characteristics in relation to its import/export activity).

4. Accordingly, the Tribunal finds that the applicant does not satisfy cl.892.221(a) as at the time of the Tribunal’s decision, the applicant does not satisfy continue to cl.892.211(1) which requires that she has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia. This is notwithstanding the fact that the Tribunal accepts [Company 1] continues to exist as a registered company, of which the applicant is the majority shareholder.

5. Having found the applicant does not meet cl.892.221(a), the Tribunal must find that the applicant does not meet cl.892.221 as a whole. She therefore cannot be granted a subclass 892 visa as one of the essential requirements of the visa is not met, and the decision under review must be affirmed.  It follows that the Tribunal finds that the second, third and fourth named applicants also cannot satisfy the criteria for a subclass 892 visa, as it finds that they do not meet the secondary visa criteria to be members of the family unit of a person who satisfies the primary criteria for a subclass 892 visa (as required by cl.892.311), and there is no evidence before the Tribunal to indicate that they satisfy the primary visa criteria in their own right.

   Ministerial intervention referral

6. In light of the above outcome, and the applicants’ submissions about their ties to Australia (in particular, [Australian State 1]), the Tribunal has considered whether these circumstances fall within the Ministerial guidelines for the Minister to personally intervene pursuant to s.351 of the Act where a Tribunal review has been unsuccessful. The Tribunal notes that this power is an entirely discretionary one on the part of the Minister. Guidelines as to what kinds of unique or exceptional circumstances may warrant Ministerial intervention are set out on the Department’s website: >

   These circumstances are stated to be non-exhaustive and include exceptional scientific, cultural or other benefit that would result from an applicant (or applicants) being permitted to remain in Australia; and/or circumstances not anticipated by relevant legislation or clearly unintended consequences of legislation; or where the application of relevant legislation leads to unfair or unreasonable results in a particular applicant’s case. 

7. There is also a list of circumstances on the Department’s website in relation to which the Minister has indicated that the s.351 guidelines would not be met. The Tribunal has reviewed these and is satisfied that the applicants’ circumstances do not appear to fall within any of the ‘inappropriate to consider’ guidelines.

8. The Tribunal has considered the applicants’ circumstances in this case, and notes that the first and second applicants are experienced business people, while their daughters (the third and fourth named applicants) are both qualified professionals as a result of their secondary and tertiary education in Australia. The Tribunal notes that the third and fourth named applicants are both employed by Australian employers in [City 1] (classified as ‘regional Australia’ for the purposes of most Australian skilled and business visas). Their documentary and oral evidence indicates that they have been largely resident in Australia since 2012.  Moreover, the Tribunal gives weight to their oral evidence, supported by documentary evidence, that the applicant successfully ran the [Business 1] in [City 1] from 2012 to 2016, and has put considerable research into identifying suitable [Australian State 1] products for export overseas. Given the available evidence indicates that the family has bought residential property in Australia and that they are well settled and the third and fourth named applicants are professionally employed in Australia, the Tribunal regards the outcome in this case as falling within the Ministerial guideline relating to cases in which the application of relevant legislation leads to unfair or unreasonable results in a particular applicant’s case.  This is particularly so since it can be argued that the applicant is in some ways being penalised by the terms of cl.892.221 for having made a commercial decision to cease operating the [Business 1] due to its declining profitability and to explore new business activities that may in future be of benefit to Australia, even though they are currently fledging.  The Tribunal therefore refers their case to the Department to be brought to the Minister’s attention for consideration pursuant to s.351.

   DECISION

9. The Tribunal affirms the decision not to grant the applicants Class DF subclass 892 visas.

   Alison Mercer
   Member