CHEN (Migration)

[2017] AATA 632

CHEN (Migration) [2017] AATA 632 (7 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr XIANTUAN CHEN
Ms XIA KONG
Mr XIANG CHEN
Mr LEI CHEN
Master HANYU CHEN

CASE NUMBER:  1602171

DIBP REFERENCE(S):  BCC2015/3534046 BCC2015/509915 BCC2015/510302 BCC2015/510304 BCC2015/510306 BCC2015/510308

MEMBER:Glen Cranwell

DATE:7 April 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decisions under review and remits the applications for Business Skills (Residence) (Class DF) visas with a direction that at the time of decision the first named applicant continues to satisfy the primary criteria in cl.890.211 for the purposes of cl.890.221 of Schedule 2 to the Regulations.

Statement made on 07 April 2017 at 3:07pm

CATCHWORDS
Migration – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – Ownership interest – Continues to maintain ownership in business – Maintained direct and continuous involvement – Ownership interest 10% of total value – Continues to operate for profit

LEGISLATION
Migration Act 1958, ss 65, 134(10)

Migration Regulations 1994, Schedule 2, cl 890.212, cl 890.213, cl 890.215, cl 890.216, cl 890.217, cl 890.211(1), cl 890.221, r 1.03, r 1.11, r 1.03

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 5 February 2016 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 16 February 2015. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not meet cl.890.221.

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

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

   RELEVANT LAW

5. At the time the visa application was lodged, the Business Skills (Residence) Class DF visa contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Sponsored Business Owner) and Subclass 893 (State/Territory Sponsored Investor). The visa applicants have made claims only in relation to Subclass 890.

6. The criteria for a Subclass 890 visa are set out in Part 890 of Schedule 2 to the Regulations. At least one member of the family unit must satisfy the primary criteria.

7. The primary criteria require the following at time of application:

   ·The applicant has had, and continues to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application is made: cl.890.211(1).

   ·The net value of the assets of the applicant, of his or her spouse or of the applicant and the spouse together in the main business or main businesses in Australia is, and has been throughout the 12 months immediately before the application is made, at least $100,000: cl.890.212.

   ·In the 12 months immediately before the application is made, the main business or main businesses had a turnover of at least $300,000: cl.890.213.

   ·Throughout the 12 months immediately before the application is made, the main business or main businesses 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 2 full-time employees over that period of 12 months and provided those hours of employment to an employee or employees who were not the applicant or a member of the applicant’s family unit and were Australian citizens, Australian permanent residents or New Zealand passport holders: cl.890.214.

   ·The net value of the business and personal assets in Australia of the applicant, of his or her spouse or of the applicant and the spouse together is and has been throughout the 12 months immediately before the application is made at least $250,000: cl.890.215.

   ·Neither the applicant nor his or her spouse has a history of involvement in business activities that are of a nature that is not generally acceptable in Australia: cl.890.216.

   ·The applicant has been in Australia as the holder of one of the visas mentioned in paragraph 1104B(3)(d) of Schedule 1 for a total of at least one year in the two years immediately before the application is made: cl.890.217.

8. At the time of the decision, the applicant must continue to satisfy the primary criteria in cl.890.211, 890.215 and 890.216: cl.890.221.

9. Regulation 1.03 provides that the term ownership interest has the meaning given to it in s.134(10) of the Act. That subsection provides that an 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.

10. The term main business is defined in r.1.11 as follows:

    (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, in

    
        

    the business is or was at least 10% 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.

11. The term qualifying business is defined in r.1.03 as 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.

    EVIDENCE AND FINDINGS

12. The Tribunal has before it the Department’s and Tribunal’s case files relating to the applicants.

13. The main business nominated in the visa applications is CK Australia Trading Pty Ltd (CK).  The company was registered on 27 November 2012, according to an ASIC search on the Department file. The ASIC search shows the applicant as the sole shareholder, holding 100 shares.

14. The evidence before the Department was that CK owned and ran a restaurant, Broadbeach Kitchen Carvery, from January 2013.  The applicant provided evidence that he maintained direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business.

15. The Broadbeach Kitchen Carvery ceased trading shortly after the Subclass 890 visa application was lodged. The applicant provided evidence that the business was closed due to the redevelopment of and removal of the food court from Niecon Plaza. The visa application was refused on the basis that the applicant did not meet cl.890.221.

16. On 28 March 2016, CK purchased a business, Coomera Fresh and Cooked Seafood.  The business opened on 27 May 2016 and has been operating since that date.  The applicant provided the Tribunal with a food premises licence, food safety assessment, BAS statements and photographs of the business.  The applicant also provided a statement detailing the involvement of himself and the second named applicant in the business.

17. The issue before the Tribunal is whether, at the time of decision, the first named applicant continues to satisfy the primary criteria in cl.890.211, as required under cl.890.221.

18. The evidence before the Tribunal indicates that the applicant has continued to have an ownership interest in the main business, CK. The evidence also indicates that at the time of decision, the applicant maintains, or has maintained, direct and continuous involvement in the management of the main business from day to day and in making decisions affecting the overall direction and performance of the business; and that the value of the applicant's ownership interest, or the total value of the ownership interests of the applicant and the applicant's spouse, in the main business continues to be at least 10% of the total value of the business.

19. Based on the evidence, the Tribunal is also satisfied that the main business has been and continues to be operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public. For most of the relevant period up to the time of decision, the main business has been operated for the purpose of owning and managing successive restaurants on the Gold Coast. For a period from February 2015 to March 2016, the main business did not own a restaurant but was actively engaged in a search process which resulted in the main business assuming an ownership interest in a new restaurant. The applicant’s evidence was that he inspected more than 20 businesses as part of this process.  The Tribunal is satisfied that during this period the main business, in its investigations culminating in the purchase of the new restaurant, continued to be operated for the essential purpose of making profit through the provision of goods, services or goods and services to the public.  It follows from the preceding findings that the main business continued to be a qualifying business as at the time of the Tribunal’s decision.

20. Based on the evidence, the Tribunal is satisfied that, at the time of its decision, the first named applicant continues to satisfy the primary criteria in cl.890.211, as required under cl.890.221.

    DECISION

21. The Tribunal sets aside the decisions under review and remits the applications for Business Skills (Residence) (Class DF) visas with a direction that at the time of decision the first named applicant continues to satisfy the primary criteria in cl.890.211 for the purposes of cl.890.221 of Schedule 2 to the Regulations.

    Glen Cranwell
    Member