Chua (Migration)

[2018] AATA 4271

Chua (Migration) [2018] AATA 4271 (25 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ee Ping Chua
Mr Nicholas Donoghue
Mr Nevin Donoghue
Miss Jolyn Donoghue
Miss Joann Donoghue

CASE NUMBER:  1815488

DIBP REFERENCE(S):  BCC2017/2985509

MEMBER:R. Skaros

DATE:25 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for the Business Skills (Permanent) (Class EC) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Business Skills (Permanent) Subclass 888 visa:

·cl. 888.225 of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in respect of the second and third named review applicants.

Statement made on 25 September 2018 at 4:45pm

CATCHWORDS
MIGRATION – Business Skills (Permanent) visa – Subclass 888 Business Innovation and Investment (Permanent) – exceptional circumstances – waived requirements – annual turnover – financial reports and activity statements – exceeds required turnover – decision under review remitted


LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2 cls 888.225, 888.226

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 May 2018 to refuse to grant the visa applicant a Business Skills (Permanent) Subclass 888 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 August 2017. The delegate refused to grant the visas on the basis that cl.888.225 was not met. The delegate found that the relevant state/territory government agency had not determined that there are exceptional circumstances and the applicant had not satisfied at least 2 of subclauses (2) to (4) of cl.885.225.

3. At the time of the application for review, the second and third named review applicants, Mr Nicholas Donoghue and Mr Nevin Donoghue, respectively, were not in Australia. In these circumstances, the Tribunal does not have jurisdiction in respect of their applications for review. 

4. The applicant provided a copy of the delegate’s decision record to the Tribunal. The applicant also provided information from the WA State Government together with Nomination Form 1414 indicating that they have determined that there are exceptional circumstances to waive the requirements regarding 2 or more employees, net business and net assets under r.888.226.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the primary applicant meets cl.888.225, which requires the applicant to meet at least 2 of subclauses (2) to (4) of cl.888.225, which relate to employees, business and/or personal assets, unless the relevant state/territory authority has determined there are exceptional circumstances. It also requires the applicant to meet the requirements of in subclause (5) of cl.888.225 which relates to the turnover of the main business in Australia unless the relevant state/territory authority has determined there are exceptional circumstances. The relevant provisions are extracted in the attachment to this decision.

8. Relevantly, cl. 888.226 enables a nominating state/territory to determine if there are exceptional circumstances under cl.888.226(2) or cl.888.226(3). Exceptional circumstances may be invoked for the purpose of either cl. 888.226(2) or cl. 888.226(3), but not both. If the relevant state/territory authority determines there are exceptional circumstances under cl.888.226(2), the applicant must meet at least 2 of subclauses (2) to (4) in cl.888.225. If the relevant state/territory authority determines there are exceptional circumstances under cl.888.226(3), the applicant must meet the requirements of cl.888.225(5).

9. In this case, the relevant state government agency, being the Small Business Development Corporation, Western Australia, advised on form 1414 dated 26 April 2018, that they have determined that there are exceptional circumstances and decided to waive the business requirements relating to 2 or more employees, net business and personal assets and assets in the business under regulation 888.226. On the basis of this evidence, the Tribunal is satisfied that the relevant state authority has determined that there are exceptional circumstances as provided for in cl.886.226(3). In the circumstances, the applicant is exempt from having to satisfy any of the requirements in cl.888.225(2) to (4). Therefore, the applicant is only required to demonstrate that she meets the requirements in cl.888.225(5) to satisfy cl.885.225.

10. Clause 888.225(5) requires that the applicants’ main business in Australia, had an annual turnover of at least AUD300 000 in the 12 months immediately before the application was made.

11. According to information on the Department’s file, the applicants nominated Oriental Fresh and Frozen Foods (AUS) Pty Ltd as their main business. The Australian Securities and Investment Commission Company Statement indicates that the applicant and her spouse together held 100% of the shares in the company since 23 June 2014. The Department’s initial assessment of the application, which was included in the Department’s file provided to the Tribunal, indicates that the Department was satisfied that the requirement relating to turnover in cl.888.225(5) has been met on the basis of information in the financial reports and activity statements. The financial reports for the nominated business for the period ended 30 June 2017 indicate that the business’ turnover as at 30 June 2017 was $5,029,142. This clearly exceeds the required turnover over $ 300,000 in the relevant 12 months period.

12. On the evidence before it, the Tribunal is satisfied that the requirement in cl.888.225(5) regarding turnover has been met. It follows that the applicant meets the requirements of cl.888.225.

13. Given the above findings, the appropriate course is to remit the matter to the Department for consideration of the remaining criteria for the grant of the visas.

    DECISION

14. The Tribunal remits the application for Business Skills (Permanent) (Class EC) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Business Skills (Permanent) Subclass 888 visa:

    ·cl. 888.225 of Schedule 2 to the Regulations.

15. The Tribunal does not have jurisdiction in respect of the second and third named review applicants.

    R. Skaros
    Member

    
    

    ATTACHMENT  -  888.225 & 888.226 (EXTRACT)

    888.225

    (1)  If the nominating State or Territory government agency has not determined that there are exceptional circumstances:

    (a)  the requirements in at least 2 of subclauses (2) to (4) are met; and

    (b)  the requirement in subclause (5) is met.

    (2)  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:

    (a)  had a net value of at least AUD 200 000 throughout the period of 12 months immediately before the application was made; and

    (b)  continue to have a net value of at least AUD 200 000; and

    (c)  were lawfully acquired.

    (3)  In the period of 12 months immediately before the application was made:

    (a)  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 provided employment in Australia to 2 or more employees for a total number of hours that was at least the total number of hours that would have been worked by 2 full-time employees; and

    (b)  each employee whose employment is used to work out that total number of hours:

    (i)  was not the applicant or a member of the family unit of the applicant during that period; and

    (ii)  was an Australian citizen, an Australian permanent resident or the holder of a valid New Zealand passport during that period.

    (4)  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:

    (a)  had a net value of at least AUD 600 000 in the period of 12 months ending immediately before the application was made; and

    (b)  continue to have a net value of at least AUD 600 000; and

    (c)  were lawfully acquired.

    (5)  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, had an annual turnover of at least AUD 300 000 in the 12 months immediately before the application was made.

    888.226

    (1)  Subclause (2) or (3) applies.

    (2)  All of the following apply:

    (a)  the nominating State or Territory government agency has determined that there are exceptional circumstances;

    (b)  the requirements set out in at least 2 of subclauses 888.225(2) to (4) have been met;

    (c)  the applicant:

    (i)  resides in an area specified by the Minister in an instrument in writing for this subparagraph; and

    (ii)  operates the applicant’s main business or businesses in Australia in the area.

    (3)  Both of the following apply:

    (a)  the nominating State or Territory government agency has determined that there are exceptional circumstances;

    (b)  the requirement set out in subclause 888.225(5) has been met.