Bui (Migration)

[2022] AATA 2786

Bui (Migration) [2022] AATA 2786 (18 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Quoc Tuan Bui
Ms Thi Ngoc Tram Pham
Mr Chan Hung Bui
Mr Minh Hoang Bui
Ms Thuy Tien Bui

REPRESENTATIVE:  Mr Michael Cradock (MARN: 1799333)

CASE NUMBER:  1906654

HOME AFFAIRS REFERENCE(S):  BCC2017/1939177 BCC2017/2192461 BCC2019/2252426

MEMBER:P Ranson

DATE:18 January 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction the first named visa applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:

·cl.892.211(2) of Schedule 2 to the Regulations.

Statement made on 18 January 2022 at 9:36am

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – ownership interest in main business – ownership interest at all relevant times – Business Activity Statements (BAS) – proof of lodgment – Commonwealth Coat of Arms – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.11A; Schedule 2, cl 892.211

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 7 February 2019 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) subclass 892 visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 2 June 2017. Certain criteria must be satisfied during the two-year period ending immediately before the date of application, that is, 2 June 2015 to 1 June 2017 (the Application Period).

3. At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor). The applicants in this case are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.

4. The delegate in this case refused to grant the visas on the basis the first named visa applicant, Mr Quoc Tuan Bui (the Applicant), did not satisfy the requirements of cl.892.211(2)[1] of Schedule 2 to the Regulations because the delegate was not satisfied the application included copies of Business Activity Statements as lodged.

   [1] The delegate’s decision record refers to cl.892.211 yet only makes findings about cl.892.211(2).

5. The secondary applicants applied based on being members of the family unit of the Applicant. The delegate found the secondary applicants could not be granted Subclass 892 visas, as they did not meet the primary criteria in their own right nor did they meet the secondary visa criterion (cl.892.321) requiring them to be members of the family unit of a person who met the primary visa criteria.

6. In accordance with s.360(2)(a) of the Act, and for the following reasons, the Tribunal considered it should decide the review in the Applicant’s favour based on the material before it. It was therefore unnecessary to invite the applicants to appear before the Tribunal.

7. For the following reasons, the Tribunal has concluded the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Subclass 892 visa applications require all Business Activity Statements (BAS) required by the Australian Taxation Office (ATO) and submitted to the ATO, for at least the two years immediately before the application is made, to be included in the application. The issue in this case is whether the documents submitted in relation to this criterion were satisfactory and included in the application.

2. In accordance with the President’s Direction,[2] the Tribunal will only address those elements of the criteria on which the delegate made an adverse finding, being the satisfaction of cl.892.211(2). For the avoidance of doubt, cl.892.211(1) will not be tested in this decision. The remaining criteria, including cl.892.211(1), will be assessed by the Department depending on the outcome of this decision.

   [2] Presidents Direction for Conducting Migration and Refugee Reviews dated 1 August 2018.

What evidence was considered by the Tribunal?

1. The Tribunal had before it the following evidence:

Department File	Digitised file of 548pages provided by the Department of Home Affairs.
ASIC Search	Search of the records of the Australian Securities & Investments Commission (ASIC) in relation to Chan Quoc Pty Ltd ACN 153 949 887 conducted by the Tribunal on 7 September 2021.
Submission 1	Detailed submission dated 25 October 2021 from the Representative including appendices 1 to 10.
Submission 2	FIRB application, and approval dated 17 November 2021, issued to Chan Quoc Pty Ltd by the Australian Taxation Office in respect of a property at St Albans in Victoria.

1. The Tribunal has considered all the material supplied to it and the evidence produced by the Applicant other than Submission 2 which is not relevant to this decision. Not all the evidence is referred to at length in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes impractical or unnecessary to canvass all aspects, arguments, and history of a case in the decision record.

2. This decision record may rely on departmental policy where applicable. The Tribunal is not bound by policy but must take it into account and will usually follow it unless there are cogent reasons not to do so.[3]

   [3] Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179 (21 November 1979).

Ownership interest in main business

1. The business relied on by the Applicant is described on the Form 1217 as ‘Mechanical Repairing’ (3-Way Mechanical Repairs). The Representative’s submission included in Submission 1 discusses the Applicant’s main businesses from paragraph 181. It appears from that submission the Applicant had only one business, that of supplying building materials (3-Way Building Materials) and the mechanical repairs business had been closed sometime in 2014. If that is so, it is unclear why the Form 1217 only refers to mechanical repairing. What is clear is the entity which conducts the business or businesses is Chan Quoc Pty Ltd ACN 153 949 887 (Chan Quoc).

2. Case law has established a business is not a legal entity but rather an enterprise or undertaking. It is therefore important for the Tribunal to identify the business to which the definition of main business must be applied for the purpose of cl.892.211(1), which is not tested here.

1. It is also important to note that one business can be owned by multiple entities and conversely multiple businesses can be owned by one entity, as may be the case here. For the avoidance of doubt, an Australian Business Number (ABN) attaches to an entity, not to a business.

2. As cl.892.211(2) concerns itself with BAS, which are lodged by the entity and not by the business, it is only necessary for the Tribunal to consider the Applicant’s ownership interest in Chan Quoc.

Does the applicant have an ownership interest in Chan Quoc at all relevant times?

1. An ‘ownership interest’, in relation to a business, means an interest in the business as:

   ·a shareholder in a company that carries on the business, or

   ·a partner in a partnership that carries on the business, or

   ·the sole proprietor of the business.

   including such an interest held indirectly through one or more interposed companies, partnerships or trusts.[4] Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of r.1.11A of the Regulations, set out in the attachment to this decision.[5]

   [4] r.1.03 of the Regulations and s.134(10) of the Act.

   [5] r.1.11A(1).

2. The ASIC Search reveals Chan Quoc was registered on 26 October 2011 and the Applicant has been a director of it since then. Mr Tan Trung Nguyen (Mr Nguyen), who is not a party to this decision, has also been a director and the secretary also since 26 October 2011. 100 ordinary shares of $1.00 fully paid were issued on registration.

3. The Tribunal obtained copies of various documents lodged with ASIC and ascertained the Applicant transferred 35 shares to another shareholder on 22 December 2014 after which he held 55 ordinary shares, and on 1 December 2020 those shares were transferred back to him. That means throughout the Application Period and at the time of application, the Applicant held an ownership interest in Chan Quoc.

4. Accordingly, the Tribunal finds the Applicant did have and does have an ownership interest in Chan Quoc at all relevant points in time.

Australian Business Number and Business Activity Statements

1. Clause 892.211(2) must be satisfied as at the time of visa application. It requires for each nominated business:

   ·an Australian Business Number has been obtained, and

   ·all Business Activity Statements required by the Australian Taxation Office (ATO) for the two years immediately before the visa application was made have been submitted to the ATO and have been included in the application.

2. As discussed above at [‎15], an ABN attaches to an entity not to a business. The Applicant states the nominated businesses are owned and operated by Chan Quoc so the test in cl.892.211(2) is to be applied to that company.

3. On 7 October 2021, the Tribunal conducted a search of the Australia Business Register (ABR) and found the ABN for Chan Quoc is 42 153 949 887, which has been current since 26 October 2011. The company has been registered for Goods & Services Tax (GST) continuously since that date.

4. The due date for lodgment of a BAS is no earlier than 28 days after the end of the quarter.[6] That means the due date for lodgment of the BAS for the quarter ended 30 June 2017 was 28 July 2017 and possibly later as Chan Quoc lodged with the assistance of a registered tax agent. The application was lodged on 2 July 2017 so the BAS for the two years immediately before then are from 1 April 2015 to 31 March 2017.

   [6] <>

   The Department File included copies of BAS, signed and ready for lodgment, for the period 1 April 2015 to 31 March 2017. The BAS for the quarter ended 30 June 2017 was requested by the delegate and subsequently provided however this is not relevant for the purpose of cl.892.211(2). There is no evidence before the Tribunal to indicate the BAS were not included with the application.

5. The Department File also included an extract from the Integrated Client Account, downloaded from the ATO website, for Chan Quoc for the period 1 April 2015 to 30 September 2018. This document shows, inter alia, the amounts payable identified on each BAS as lodged, and the date of processing. The Tribunal has checked all eight BAS for the period 1 April 2015 to 31 March 2017 and confirmed the Integrated Client Account shows they were lodged by their due date, the last being 26 May 2017 which is before the date of application.

6. Accordingly, the Tribunal finds all BAS required by the ATO for the two years immediately before the visa application was made have been submitted to the ATO and have been included in the application.

7. The delegate was concerned the copies of the BAS provided with the application were insufficient to meet the requirements of cl.892.211(2) as they did not show the Commonwealth Coat of Arms. This is not a requirement of cl.892.211(2). Whilst it is the case copies of BAS downloaded from the ATO website carry the Commonwealth Coat of Arms and are conclusive proof they were lodged with the ATO, that is not the only way to establish a BAS has been lodged. Appropriate entries on the integrated client account also establish BAS have been lodged, as the Tribunal has done in this case.

8. Given the findings above, the Tribunal is satisfied cl.892.211(2) is met. The appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa including cl.892.211(1).

9. The secondary visa applicants are remitted for reconsideration by the Department based on the outcome of the application by the primary visa applicant.

DECISION

The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction the first named visa applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:

·cl.892.211(2) of Schedule 2 to the Regulations.

Peter Ranson
Member