Cai (Migration)

[2019] AATA 5335

Cai (Migration) [2019] AATA 5335 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Delin Cai

Mr Zhiwei Cai

Mrs Yaxian Ren

CASE NUMBER:  1605426

HOME AFFAIRS REFERENCE(S): BCC2015/769609 BCC2015/769860 BCC2016/169318

MEMBER:R. Skaros

DATE:27 November 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Residence) (Class DF) visas.

Statement made on 27 November 2019 at 3:55pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) – ownership interest in actively operating main business – ASIC records show applicant ceased to be shareholder – no response to Tribunal’s s 359A letter – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cl 892.211(1), 892.221(a)

CASE

Hasran v MIAC [2010] FCAFC 40

Yang v Minister for Immigration and Border Protection [2014] FCCA 1576

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 and Border Protection on 14 April 2016 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 10 March 2015. 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 (the Regulations).

3. The delegate in this case refused to grant the visas on the basis that the first named visa applicant (the applicant) did not satisfy the requirements of cl.892.211 of Schedule 2 to the Regulations because the delegate found that the nominated business did not meet the definition of ‘main business’ in r.1.11(1)(b) in relation to the applicant because the delegate was not satisfied that the applicant maintained, or had 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.

4. During the processing of the review unfavourable information came before the Tribunal which suggested that the applicant has not maintained an ownership interest in the nominated business. This information raised concerns about whether the applicant would be able to satisfy the time of decision requirement in cl.892.221 which requires the applicant to continue to meet the requirements in cl.892.211.

5. On 6 September 2019 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting the review applicants to provide comments on information it considered would be part of the reason for affirming the decision under review in writing. The information related to a current Company Extract obtained from the Australian Securities and Investment Commission (ASIC) indicating that since 15 November 2016 the applicant ceased to be a shareholder in Box Hill Barbecue Pty Ltd (149 597 786), being the company which carries on the business that was nominated by the applicant, namely Hills BBQ Noodle Shop, in the application. The Tribunal explained to the applicant the relevance of the information and the consequences if it relied on that information. 

6. The invitation was sent to the applicant at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 20 September 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal is satisfied that the invitation to comment was properly sent to the applicants by email. The email has not been returned to sender as undeliverable. The applicant has not made any contact with the Tribunal regarding the progress of their application since shortly after lodgement of the application for review in April 2016. To date the applicant has not provided any comments in response to the adverse information. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

9. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets the requirements in cl.892.221.

    Ownership interest in main business

11. Clause 892.211(1) requires that the applicant had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made and continued to have that interest at the time the visa application was made. The applicant must continue to satisfy this requirement at the time of this decision: cl.892.221(a). No more than two businesses can be nominated for this purpose (r.1.11(2)) and only one or both of the businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion: Yang v Minister for Immigration and Border Protection [2014] FCCA 1576.

12. The business relied on by the applicant to satisfy the requirements for the visa is Box Hill Barbecue Pty Ltd (149 597 786) trading as the Hill's BBQ Noodle Shop. The applicant provided evidence to the Department indicating that he held shares in Box Hill Barbecue Pty Ltd. While the delegate appears to have accepted that the applicant had an ownership interest in the business, the delegate had significant concerns about the applicant’s involvement and management of the in the business as there was other information before the Department, which was obtained from another application that had been lodged with the Department, which suggested that the applicant was not a Director of the company and that he had not been involved in the day-to-day management of the business. There is also information on the Department’s file relating to a site visit during which unfavourable information was obtained about the applicant’s level of involvement in the business.

13. The Tribunal notes that the applicant was invited by the Department to respond to the adverse information, to which he provided a substantial response and supporting documents. However, in light of the unfavourable information now before the Tribunal regarding the applicant ceasing to be a shareholder in Box Hill Barbecue Pty Ltd t/a the Hill’s BBQ Noodle Shop, the Tribunal does not consider it necessary to consider the information on the Department’s file or make any findings in relation to whether the applicant maintains, or has maintained, direct and continuous involvement in the day-to-day management of the business.

14. The Tribunal has decided to determine this issue on the basis of whether the applicant meets the requirements in cl.892.221(a). The Tribunal put the applicant on notice of this issue in the s.359A letter of 6 September 2019.

15. The current information obtained from current ASIC records indicates that the applicant ceased to be a shareholder of Box Hill Barbecue Pty Ltd since 15 November 2016. This information suggests that the applicant, at the time of this decision, does not continue to have an ownership interest in the nominated business as required by cl.892.221(a).

16. As noted above, the applicant was invited to comment on the above information but has not done so. The Tribunal now turns to consider the evidence before it as follows.

17. 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 (r.1.03 of the Regulations and s.134(10) of the Act). 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: r.1.11A(1).

18. In order to meet cl.892.211(1) the Tribunal must be satisfied that the applicant had an interest of this kind in the relevant business both at the time of making that application and for the two years immediately before. In order to meet cl.892.221(a) the Tribunal must be satisfied that the applicant continues to satisfy this requirement at the time of this decision.

19. The evidence before the Tribunal is that the applicant has ceased to be a shareholder in Box Hill Barbecue Pty Ltd, being the company which carries on the nominated business: Hill’s BBQ Noodle Shop. On the basis of this evidence, the Tribunal is not satisfied that, at the time of decision, the applicant continues to have an ownership interest in an actively operating main business in Australia.

20. The Tribunal accordingly finds that, at the time of this decision, the applicant does not continue to satisfy the requirements in cl.892.211(1). Therefore the requirement in cl.892.221(a) is not met.

21. Given the above finding, the Tribunal must affirm the decision under review.

22. The secondary applicants applied for their visas on the basis of being members of the family unit of the first named applicant. As the first named applicant has not met at least one of the requirements for the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

    R. Skaros
    Senior Member

    
    

    ATTACHMENT - LEGISLATION

    Migration Regulations 1994

    1.03Definitions

    In these Regulations, unless the contrary intention appears:

    …

    ownership interest has the meaning given to it in subsection 134(10) of the Act.

    …

    qualifying business means an enterprise that:

    (a)     is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and

    (b)     is not operated primarily or substantially for the purpose of speculative or passive investment.

    …

    1.11Main business

    (1)For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:

    (a)the applicant has, or has had, an ownership interest in the business; and

    (b)the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and

    (c)the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:

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

    (ii)if:

    (A)the business is not operated by a publicly listed company; and

    (B)the annual turnover of the business is at least AUD400 000;

    at least 30% of the total value of the business; or

    (iii)if:

    (A)the business is not operated by a publicly listed company; and

    (B)the annual turnover of the business is less than AUD400 000;

    at least 51% of the total value of the business; and

    (d)the business is a qualifying business.

    (2)If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.

    1.11A Ownership for the purposes of certain Parts of Schedule 2

    (1)Subject to subregulation (4), for Parts 132, 188, 888, 890, 891, 892 and 893 of Schedule 2, ownership by an applicant, or the applicant’s spouse or de facto partner, of an asset, an eligible investment or an ownership interest, includes beneficial ownership only if the beneficial ownership is evidenced in accordance with subregulation (2).

    (2)To evidence beneficial ownership of an asset, eligible investment or ownership interest, the applicant must show to the Minister:

    (a)a trust instrument; or

    (b)a contract; or

    (c)any other document capable of being used to enforce the rights of the applicant, or the applicant’s spouse or de facto partner, as the case requires, in relation to the asset, eligible investment or ownership interest;

    stamped or registered by an appropriate authority under the law of the jurisdiction where the asset, eligible investment or ownership interest is located.

    (3)A document shown under subregulation (2) does not evidence beneficial ownership, for subregulation (1), for any period earlier than the date of registration or stamping by the appropriate authority.

    (4)Beneficial ownership is not required to be evidenced in accordance with subregulation (2) if the person who has legal ownership of the asset, eligible investment or ownership interest in relation to which the applicant, or the applicant’s spouse or de facto partner, has beneficial ownership:

    (a)is a dependent child of the applicant; and

    (b)made a combined application with the applicant; and

    (c)has not reached the age at which, in the jurisdiction where the asset, eligible investment or ownership interest is located, he or she can claim the benefits of ownership of the asset, eligible investment or ownership interest.

    Migration Act 1958

    134Cancellation of business visas

    ….

    (10)In this section:

    ….

    ownership interest, in relation to a business, means an interest in the business as:

    (a) a shareholder in a company that carries on the business; or

    (b) a partner in a partnership that carries on the business; or

    (c) the sole proprietor of the business;

    including such an interest held indirectly through one or more interposed companies, partnerships or trusts.