Fang (Migration)

[2020] AATA 6111

Fang (Migration) [2020] AATA 6111 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yuhui Fang

CASE NUMBER:  1604608

HOME AFFAIRS REFERENCE(S): BCC2014/2909304 BCC2014/2909914 BCC2015/2146409 BCC2015/2146409 and BCC2016/152161 BCC2016/2008441 BCC2016/584310

MEMBER:Amanda Ducrou

DATE:5 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 05 August 2020 at 12:16pm

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) visa – employment of an Australian citizen – ownership interest in the main business – Departmental site visit concerns – day-to-day management of the business – Shanghai office listed as cash assets in Australia – business activities conducted outside Australia – net value of assets – decision under review affirmed    

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2
Migration Act 1958, ss 65, 134
Migration Regulations 1994, Schedule 2, cls 892.211, 892.212, 892. 221; rr 1.05, 1.11

CASES

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492

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 17 March 2016 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 November 2014. At the time of application, Class DF contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and Subclass 893 (State/Territory Sponsored Investor). The applicant in this case is seeking to satisfy the criteria for the grant of a Subclass 892 (State/Territory Business Owner) visa, 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 visa on the basis that the visa applicant did not satisfy the requirements of cl.892.212 of Schedule 2 to the Regulations as the applicant did not demonstrate that they met at least two of the requirements in cl.892.212(a), cl.892.212(b) and cl.892.212(c). Specifically, the delegate found that the applicant did not meet the requirements in cl.892.212(a) relating to the provision of employment to an Australian employee or employees or the requirements in cl.892.212(c) relating to the value of the assets owned by the applicant in the main business.

4. On 14 November 2019 the Tribunal sent a letter to the applicant inviting the applicant to attend a hearing scheduled for 11 December 2019. On 22 November 2019 the Tribunal received an email from the applicant’s representative requesting the adjournment of the hearing as the applicant’s representative would not be available to attend the hearing due to her medical condition. In the email the applicant’s representative stated that she had been unwell since September 2019 and would recover in January 2020. The email stated that the representative had represented the applicant since 2016 and that the applicant was not in the position to change her representative and requested an adjournment until January 2020 A medical certificate dated 17 October 2019 was attached to the email certifying that the applicant’s representative was suffering from a medical illness and would be unfit for work from 17 October 2019 until 17 January 2020. The Tribunal rescheduled the hearing.

5. On 26 November 2019 the Tribunal sent a letter to the applicant inviting the applicant to attend a hearing scheduled for 22 January 2020. On 8 January 2020 the Tribunal received the applicant’s response to the hearing invitation. On 20 January 2020 the Tribunal received an email from the applicant’s representative stating that the representative had informed the applicant on 19 January 2020 of her decision to cease to act for the applicant due to her medical condition, which had resulted in medical complications and required further medical investigation. The email provided an email address for the applicant and stated that the applicant could be contacted by email.

6. On 20 January 2020 the Tribunal wrote to the applicant. The letter was sent by email to the applicant at the email address recorded as the applicant’s address for correspondence in relation to the review (the email address was the same as the email address provided by the applicant’s representative on 20 January 2020). The Tribunal’s letter stated that the applicant had nominated her representative as the applicant’s authorised recipient to receive correspondence in connection with this review and noted that on 20 January 2020 the representative advised the Tribunal that they no longer represented the applicant in relation to the review and should no longer receive correspondence on the applicant’s behalf. The letter advised that as the applicant had nominated the representative as her authorised recipient for correspondence in connection with this review the Tribunal would continue to send correspondence to the representative unless the applicant returned either of the following forms: Appointment of Representative/Appointment of Authorised Recipient form (MR5) or Change of Contact Details form (MR6). Blank MR5 and MR6 forms were attached to the Tribunal’s email.

7. On 21 January 2020 the Tribunal received an email from the applicant requesting an adjournment of the hearing to 20 February 2020 to allow her the opportunity to seek a new representative. A form MR6 was attached to the applicant’s email. The form was signed by the applicant but was not completed fully. On 21 January 2020 a Tribunal officer contacted the applicant by telephone. The applicant confirmed her request for an adjournment. The Tribunal received a signed and completed form MR6 from the applicant on 21 January 2020. The Tribunal rescheduled the hearing.

8. On 21 January 2020 the Tribunal wrote to the applicant and invited her to attend a hearing scheduled for 26 February 2020. The letter was sent to the applicant by email at the email address the applicant provided to the Tribunal for correspondence.

9. On 11 February 2020 the Tribunal wrote to the applicant. The letter was sent to the applicant by email at the email address the applicant provided to the Tribunal for correspondence. The Tribunal’s letter advised the applicant that the Tribunal was writing to her about two matters. The first matter related to a certificate issued on 21 June 2016 by the Minister for Immigration and Border Protection under s.376 of the Act regarding the Tribunal’s discretion to disclose certain information. The second matter related to adverse information on the Department’s file. The certificate issued under s.376 of the Act was attached to the Tribunal’s letter.

10. In relation to the certificate issued under s.376 of the Act, the Tribunal’s letter advised that the certificate was issued in relation to folio/s 1a – 25 of the Department’s file number BCC2015/2146409. The letter advised the applicant that the Tribunal was satisfied that the certificate is valid on the basis that the documents, matters contained in the documents or information subject to the certificate were given to the Minister, or to an officer of the Department in confidence and s.375A of the Act does not apply. The letter advised that the Tribunal considers that the documents, matters or information subject to the certificate are not relevant to this review as they relate to an application another person made under the Employer Nomination Scheme. The letter went on to advise the applicant that the Tribunal has decided to place no weight on the documents, matters or information subject to the certificate for the purposes of this review and stated that the Tribunal declined to exercise its discretion under s.376(3) of the Act to disclose the information subject to the certificate to the applicant. The Tribunal’s letter invited the applicant to provide written submissions in relation to the validity of the certificate and any other matters the applicant wished to address.

11. The Tribunal’s letter advised further that the certificate was also issued in relation to folio/s 1 – 14, 111 – 121b and 137 – 139 of the Department’s file number BCC2016/2009441 on the basis that disclosure of the identified material affects personal privacy of a Departmental officer. The letter stated that the Tribunal is satisfied that the certificate is not valid as it does not state a valid ground of public interest immunity or that the material in respect of which the certificate was issued was given to the Minister in confidence. The letter stated that the Tribunal considers that parts of the material in respect of which the certificate was issued are relevant to the application for review as they relate to a site visit undertaken by Departmental officers on 23 October 2015 and include the site visit report. The Departmental officer who completed the report concluded that there were serious concerns regarding the applicant’s involvement in the management of her nominated main business, being Bluestars Real Estate Pty ltd (Bluestars). The Tribunal’s letter advised that the Tribunal had decided to disclose to the applicant the parts of the information in respect of which the certificate was issued that are relevant to this review. The relevant parts were set out in attachment B to the Tribunal’s letter. The Tribunal invited the applicant to provide written submissions in relation to the validity of the certificate and the exercise of the Tribunal’s discretion under s.376(3) of the Act to disclose to the applicant the information in respect of which the certificate was issued.

12. The Tribunal’s letter advised the applicant that they were not required to provide written submissions in relation to the certificate but that if they wished to do so the written submissions should be provided by 25 February 2020. The letter stated that the applicant may ask for an extension of time and state the reason why the extension of time was required, provided the request was received by the Tribunal before 25 February 2020. The letter advised the applicant if the Tribunal did not receive their comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

13. In relation to the adverse information on the Department’s file, pursuant to s.359A of the Act the Tribunal’s letter invited the applicant to comment on or respond to information held by it, being information on the Department’s file. The Tribunal’s letter advised the applicant that the Tribunal had not made up its mind about the information. The letter set out particulars of the information, namely that the referral for the site visit to Bluestars was finalised by a Departmental officer on 16 November 2015 as “Completed – Serious Concerns”. The Integrity Site Visit Report completed on 16 November 2015 by the Departmental officer sets out details of the site visit to Suite 243 (level 2), 1 Queens Road, Melbourne undertaken by Departmental officers on 23 October 2015. The concerns that the Report identified were particularised in detail as separate points in the Tribunal’s letter.

14. The Tribunal’s letter advised the applicant (in summary) that the information in respect of which particulars were provided is relevant to the review because if the Tribunal were to accept that the information was true and the Tribunal were to rely on the information, then the Tribunal may find that the applicant did not meet r.1.11 of the Regulations, and cl.892.211, cl.892.212 and cl.892.221 of Schedule 2 to the Regulations, and that this would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review. The Tribunal’s letter explained that these provisions contain mandatory requirements that must be satisfied for the grant of the visa to the applicant. The letter set out the mandatory requirements in detail and explained how they are relevant to the review.

15. The Tribunal’s letter invited the applicant to provide comments on or respond to the particularised information by 25 February 2020. The letter stated that if the applicant could not provide their comments or response by 25 February 2020, they may ask for an extension of time and state the reason why the extension of time was required, provided the request was received by the Tribunal before 25 February 2020. The letter advised the applicant if the Tribunal did not receive their comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information and that the applicant would also lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

16. On 25 February 2020 the Tribunal received an email from the applicant requesting an extension of time to provide comments on or respond to the information set out in the Tribunal’s letter of 11 February 2020. The applicant also requested an adjournment of the hearing date to a date after she provided her response. The applicant noted that she had sought a new representative but that it was difficult to secure a solicitor to represent her. She had asked her former migration agent to resume as her representative as her former migration agent’s health had improved. Her former migration agent was not available for the hearing scheduled for 26 February 2020.

17. On 25 February 2020 the Tribunal wrote to the applicant. The letter advised that the Tribunal had decided to grant an extension of time to 4 March 2020 for the applicant to respond to the matters set out in the Tribunal’s letter of 11 February 2020. The letter stated that the applicant may ask for an extension of time in which to respond and state the reason why the extension of time was required, provided the request was received by the Tribunal before 4 March 2020. The letter advised the applicant that if the Tribunal did not receive their response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information and that the applicant would also lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments

18. On 25 February 2020 a Tribunal officer contacted the applicant by telephone. The Tribunal officer advised that the hearing scheduled for 26 February 2020 had been cancelled and that the applicant was no longer required to attend. The Tribunal officer advised the applicant that the hearing was rescheduled for 25 March 2020. The Tribunal officer confirmed that the Tribunal had extended the time for the applicant to respond to the information in the Tribunal’s letter of 11 February 2020. The time was extended to 4 March 2020. The Tribunal officer explained to the applicant that it was very important to note that if she did not provide a response by 4 March 2020, she may lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal officer asked the applicant to complete a form MR5 and to send the completed form to the Tribunal if she intended to appoint a representative.

19. The Tribunal wrote to the applicant on 25 February 2020 and invited her to attend a hearing on 25 March 2020. The Tribunal received a completed and signed form MR5 from the applicant on 3 March 2020 appointing Ms Min Juan Dai as the applicant’s representative and authorised recipient. On 3 March 2020 the Tribunal also received the applicant’s response to the hearing invitation issued on 25 February 2020.

20. On 4 March 2020 the Tribunal received an email from the applicant’s representative with the applicant’s response to the Tribunal’s letter of 11 February 2020. The applicant’s response was set out in a statutory declaration made by the applicant on 4 March 2020 and was attached to the email. In her statutory declaration, the applicant made the following points (in summary):

    ·she had an ownership interest in the Bluestars’ business for the two years immediately before her visa application and has continued to have an ownership interest in that business to this day. She has provided evidence of her ownership interest and a financial statement for Bluestars;

    ·for the two years immediately preceding her visa application, she had a 30% ownership stake in Bluestars, which had a turnover of at least AUD400,000 per year. The value of her ownership interest satisfied the visa requirements;

    ·she nominated Bluestars as the main business for the purposes of assessing the criteria for her visa application. She has had and has continued to have a direct and continuous management role in the Bluestars’ business on a day-to-day basis. She spent more than six weeks outside Australia from January 2018 to January 2020 but managed the business by telephone while she was away;

    ·she has met the assets and employee requirements in relation to her visa application at all relevant times;

    ·at all relevant times, Bluestars employed an Australian citizen or Australian permanent resident 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 one full-time employee. The delegate who made the primary decision did not consider the employment status of her co-directors, Mr Ling Xu and Mr Fangming Dai;

    ·at all relevant times the net value of her business and personal assets was at least AUD250,000. This included moneys she invested in Bluestars and her cash assets;

    ·at all relevant times the net value of her business assets in Bluestars was at least AUD75,000 and those assets were lawfully acquired. The profit and loss statement records the funds used by Bluestars’ Shanghai office, which employed local staff in China. The assets belonging to the Shanghai office are assets of Bluestars.

    ·she met the requirement for business turnover for the 12 months immediately before her visa application. She provided evidence that Bluestars’ annual turnover in its main business is at least AUD200,000;

    ·she met the requirements for business practice in Australia. She provided strategic advice and management for Bluestars since she joined Bluestars. Each of the three Bluestars’ directors have a different role in the business. Mr Dai was in charge of sales, Mr Xu was in charge of real estate and leasing and she was in charge of strategic development including sales, leasing and attracting overseas parties, contracting with developers, engaging more overseas buyers, attracting more leasing in order to maintain the balance of the business income, reducing the risk of the real estate business in Australia and overseas, and improving understanding and knowledge overseas of the Australian real estate market;

    ·she has engaged in business activities that are generally acceptable in Australia. She has not engaged in any business activity that may have been adverse to the company interest or to the public interest. (The Tribunal noted that the statutory declaration stated that the applicant had engaged in activities that were “unacceptable”. At the hearing the applicant clarified that was a typographical error and that the statutory declaration should state “acceptable”);

    ·she has met all the criteria for the health, character and Australian value requirements and has been sponsored by the State of Victoria.

1. In her statutory declaration the applicant made the following points (in summary) addressing the particulars of the site visit report set out in the Tribunal’s letter of 11 February 2020:

   ·     the difficulty that she had logging in to the business operation system RP office on the day of the site visit was due to technical issues, possibly due to password changes;

   ·     she and the other directors agreed that staff were to be paid by cheque and that she was required to authorise the cheque payments. She did not prepare payslips issued to staff as another director does this. However, she examines and checks the payslip and wage records and bears sole responsibility for authorising payments for wages, superannuation and all other business expenses;

   ·     she has not created tasks to meet the visa requirements. The tasks she undertakes for Bluestars’ business are for the day-to-day management of the business.

   ·     she did not manage the business solely via a laptop. The findings in the report on her laptop and business data management and storage are incorrect. She manages the day-to-day business primarily in the office but if not in the office, she uses We chat and group share communication by email. She also uses a laptop but not as her sole business management tool;

   ·     as to the report findings on the operation of the two public websites of the business – the website design was outsourced to an IT company. This was managed by another director without her involvement. She was fully aware of the two public websites for Bluestars in China and Australia. They are simple websites designed to provide information to customers and clients and she does not rely on them in relation to her management role;

   ·     her general duties in the office and her face-to-face client management activities include: discussion with clients, communicating with employees, discussion with developers/property building contractors/leasing partners, examining company books, checking sales records of the Shanghai office, dealing with networks in China, budgeting for the business, future development of the business, attracting investment from overseas investors, attracting government funding from China to cooperate with Bluestars in China, interviewing new staff and liaising with the other directors. Her face-to-face management role was within the ambit of the general duties expected from a managing director;

   ·     as to her responsibilities for hiring employees of Bluestars – she interviewed job applicants and consulted with the other directors on potential employees. She interviewed applicants recommended by the other directors, but she was not informed by the other directors of their personal interest in hiring those employees prior to her making the decision to hire them. She only discovered later, after the Department asked her to comment on those employees’ general duties, that the other directors had personal interests with the employees’ families. It was at that time when the employees’ positions were terminated by consent. She interviews prospective employees first and it is only after she decides on a potential employee that the other directors would proceed to enter into an employment agreement;

   ·     she was largely responsible for creating Bluestars’ rental management business. Previously Bluestars largely relied on the sale of properties in Australia and China. After she made the key decision to balance the business between leasing and sales, she directed another director to sign all leasing contracts with property owners. After 2017, 70% of business revenue was derived from leasing and 30% from sales;

   ·     her general management role at Bluestars is the same as for many business owners of a small business. She deals with the relationship between the other directors and with staff performance and their general roles in an office environment. She also deals with finances as to daily expenses and costs. She is required to determine company goals in the short-term and the long-term. She manages business risk, public liabilities, costs disputes, customer complaints and tenant demands.

2. On 19 March 2020 a Tribunal officer contacted the applicant’s representative by telephone and advised that the manner of conducting the hearing on 25 March 2020 had changed from a face to face hearing to a telephone hearing. The Tribunal officer asked the applicant to provide contact telephone numbers for the hearing.

3. On 20 March 2020 the Tribunal wrote to the applicant. The letter advised that as a result of the COVID-19 pandemic the Tribunal was not holding face to face hearings from Monday, 23 March 2020 and that the Presiding Member had decided that a telephone hearing was suitable in this case, subject to the applicant’s consent. The letter advised the applicant to contact the Tribunal if she did not agree to proceed by telephone hearing and to provide reasons why she considered it was not suitable for the hearing to proceed by telephone. On 23 March 2020, the Tribunal received an email from the applicant’s representative advising that the applicant did not consent to the hearing proceeding by telephone. The email stated that the applicant had not been able to attend to the necessary preparation for the hearing due to the impact of the COVID-19 pandemic.

4. The Tribunal postponed the hearing. On 23 March 2020 the Tribunal wrote to the applicant and advised her that her request for the hearing to be postponed had been granted and that the hearing would be rescheduled. The letter advised that the Tribunal would write to the applicant as soon as a hearing date was available.

5. On 16 April 2020, the Tribunal wrote to the applicant and invited her to attend a hearing scheduled for 7 May 2020. The Tribunal received the applicant’s response to the hearing invitation on 6 May 2020.

6. The applicant appeared before the Tribunal on 7 May 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent, Ms Min Juan Dai. Ms Dai participated at the hearing.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The Tribunal invited the applicant to provide further information and submissions relevant to the review after the hearing. The Tribunal requested the applicant to provide the further information and submissions by 4 June 2020. The Tribunal received documents from the applicant on 4 June 2020. The documents were received by email from the applicant’s representative. The applicant requested an extension of time for a further 30 days to provide additional documents on the basis that they had difficulty in obtaining documents given the age of some records and delay by the accountant. The applicant’s representative noted that the documents had been received on 2 June 2020 and that they were of the view that more evidence to support the documents already provided was required.

9. On 5 June 2020 the Tribunal wrote to the applicant and advised that the time for providing the documents was extended for a further 14 days to 19 June 2020. The Tribunal’s letter noted that in determining to allow the extension of time, the Presiding Member had taken into account that the information and/or documents the applicant was invited to provide at the hearing relate to issues considered by the delegate who made the primary decision and that were the basis of the delegate’s decision to refuse the visa application, with the applicant being aware for approximately 49 months of the reasons for the visa refusal. The letter further advised that the Presiding Member also took account of the objectives of the Tribunal set out in s.2A of the Administrative Appeals Tribunal Act 1975, which include the objective of providing a mechanism of review that is fair, just, economical, informal and quick. The Presiding Member was of the view that as the applicant was aware of the matters at issue in the review well before the hearing, an extension of time for 14 days was sufficient time to organise and provide the information and/or documents.

10. The Tribunal received further documents from the applicant on 19 June 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. At the commencement of the hearing, the Tribunal told the applicant that the material set out in the Tribunal’s letter dated 11 February 2020 and the documents enclosed with that letter were provided to the applicant as they were relevant to the visa application and to the review. However, the Tribunal accepted for the purposed of this review, that the Bluestars’ business, being the business nominated by the applicant as her main business, met the statutory requirements as the applicant’s main business and, therefore, that the Tribunal’s attention in this review is directed to whether the applicant meets the requirements of cl.892.212. This is the same issue as the issue considered by the delegate who made the primary decision.

13. The issue in this case is whether the applicant met cl.892.212 at the time of application. The application was lodged on 3 November 2014. Relevantly, in order to meet cl.892.212, the applicant must demonstrate that they meet two of the three requirements set out in cl.892.212(a), cl.892.212(b) and cl.892.212(c).

    Requirements relating to applicant’s assets

14. Clause 892.212 requires the applicant to meet certain requirements that broadly relate to the employment of employees who are Australian citizens, Australian permanent residents or New Zealand passport holders and to the applicant’s assets. This provision does not need to be met if the appropriate regional authority has determined that there are exceptional circumstances. Otherwise, at least two of the following three criteria must be met:

    ·Australian employment (cl.892.212(a)): in the 12 months ending immediately before the visa application was made, the main business(es) in Australia of the applicant, the applicant’s spouse or de facto partner, or the applicant and spouse or de facto partner together, employed at least one full time employee over that 12 month period (or employed a number of employees for a total number of hours equivalent to that which would have been worked by one full time employee) who is not the applicant or a member of their family unit and who is an Australian citizen, Australian permanent resident or New Zealand passport holder;

    ·Business & personal assets (cl.892.212(b)): at the time of visa application and throughout the period of 12 months immediately before the time of application, the net value of the business and personal assets in Australia of the applicant, or the applicant’s spouse or de facto partner or their assets combined, had a net value of at least AUD250,000. Further, these assets must have been lawfully acquired;

    ·Assets in main business (cl.892.212(c)): at the time of visa application and in the 12 months immediately before the time of application, the total value of the net assets in the main business(es) in Australia of the applicant, or the applicant’s spouse or de facto partner, or the applicant and his spouse or de facto partner together, have a net value of at least AUD75,000. Further, these assets must have been lawfully acquired.

15. There is no evidence before the Tribunal that the appropriate regional authority has determined that there are exceptional circumstances in this case. Accordingly, the Tribunal has considered whether the substantive requirements of this criterion are met. The applicant has submitted that the requirements set out above concerning Australian employment, business and personal assets and assets in the main business are met.

16. As the application was lodged on 3 November 2014, the period of 12 months ending immediately before the application was made, as referred to in cls.892.212(a) to (c), is the 12-month period from 3 November 2013 to 2 November 2014 (the relevant period).

17. The meaning of ‘main business’ is set out in r.1.11(1) of the Regulations as defined in r.1.03. The business relied on by the applicant as her main business is Bluestars. The applicant confirmed at the hearing that Bluestars continues as her main business. The documents before the Tribunal include Current & Historical Company Extracts and Company Details records issued by the Australian Securities & Investments Commission (ASIC). The ASIC documents confirmed that the applicant is currently and was a 50% shareholder in Bluestars during the relevant period.

18. The delegate assessed the applicant’s financial position at two points of time, being at 31 August 2013 and at 31 August 2014. This is because the applicant nominated 31 August 2014 as the most relevant date for this purpose.

19. The delegate addressed whether the applicant meets the requirements of cl.892.212(a) and cl.892.212(c) in the primary decision. The delegate did not specifically address whether the applicant meets the requirements of cl.892.212(b). The Tribunal considered first whether the applicant meets the requirements of cl.892.212(c).

    Assets in main business

20. The applicant provided the Tribunal with a copy of the delegate’s decision record. The delegate noted that the applicant had provided financial statements for Bluestars, signed by the directors and the certified accountant as at 31 August 2014 and 31 August 2013. The financial statements identified net assets valued at AUD381,185.15 as at 31 August 2014 and AUD274,882.41 as at 31 August 2013. The delegate noted that as a 50% shareholder in Bluestars, the value of the applicant’s claimed net assets in Bluestars was AUD190,593 as at 31 August 2014 and AUD137,441 as at 31 August 2013 (being 50% of the total value of Bluestars’ net assets).

21. According to the financial statements, the cash assets of Bluestars included Shanghai office assets of AUD279,793 as at 31 August 2014 and AUD321,236 as at 31 August 2013. The delegate noted that the applicant provided a letter dated 21 December 2015 from Mr William Li, ATO Tax Agent/CPA/ASIC Agent/SMSF Auditor/SRO Agent of WS Accounting & Taxation Pty Ltd, Chartered Accountant in response to a request for clarification of how the cash assets held in the Shanghai office could be claimed as an asset of the Australian company. In relevant part, the letter stated: “the company has operated a representative office in Shanghai China since 2010. This asset was generated from the money transferred to the Shanghai office to cover the business expenses incurred in China. We have enclosed all related documents…”. Documents the applicant provided as evidence of the Shanghai office assets included ledger entry reports for ledger account number 2020 – Shanghai office for the financial years ended 30 June 2011, 30 June 2012, 30 June 2013 and 30 June 2014, and for the period from 1 July 2014 to 31 August 2014. The applicant’s documents also included transaction statements for Bluestars Westpac Business One account (account XX-3102).

22. The delegate found that no evidence was provided of ownership of the representative office in Shanghai, China. The delegate noted that the Shanghai office assets recorded in the financial statements were for amounts that were withdrawn and provided to cover business expenses in China and that such amounts are not generally declared as assets on financial statements but are instead declared as expenses of the company on the profit and loss statement. The delegate was not satisfied that the evidence established that the representative office in Shanghai China received the amounts claimed. Therefore, the delegate was not satisfied that Bluestars Real Estate Pty Ltd has the Shanghai office assets of AUD279,793 as at 31 August 2014 and AUD321,326 as at 31 August 2013 identified on the financial statements. The delegate noted that the applicant had not claimed any loans to Bluestars.

23. The delegate calculated the value of the applicant’s net assets in the main business as AUD50,697 as at 31 August 2014 and (AUD23,177) as at 31 August 2013. On that basis the delegate concluded that the applicant did not meet the requirements of cl.892.212(c) of the Regulations as the applicant did not provide evidence of owning assets in the main business in Australia that have a net value of at least AUD75,000 at the time of the application (being 3 November 2014) and of at least AUD75,000 throughout the period of 12 months ending immediately before the application was made (being the relevant period from 3 November 2013 to 2 November 2014).

24. The Tribunal had before it the applicant’s statements of assets and liabilities in Australia as of 31 August 2014 and 31 August 2013. The applicant provided two versions of the statement of assets and liabilities as of 31 August 2013. One version was provided to the Department with the applicant’s visa application (received by the Department on 3 November 2014). The other version was provided to the Department on 6 January 2016. The applicant confirmed at the hearing that she relied on the version provided on 6 January 2016.

25. The statements of assets and liabilities in Australia that the applicant relied on are set out in the following tables:

Statement of assets and liabilities in Australia as of 31 August 2014
Assets (AUD)		Liabilities (AUD)
Family home	0	Home mortgage (s)	0
Investment property (s)	365,000	Investment loan (s)	245,000
Net equity in business (s)	190,592.58	Personal loan (s)	0
Loan to business	0	Other loans	0
Superannuation	0
Cash (Westpac)	51,603.10	Credit cards	0
Shares	0	Other	0
Stock/Bonds etc	0
Other Investments	0
TOTAL	607,195.68	TOTAL	245,000
TOTAL NET WORTH	362,195.68
Statement of assets and liabilities in Australia as of 31 August 2013
Assets (AUD)		Liabilities (AUD)
Family home	0	Home mortgage (s)	0
Investment property (s)	0	Investment loan (s)	0
Net equity in business (s)	137,441.21	Personal loan (s)	0
Loan to business	0	Other loans	0
Superannuation	0
Cash (ANZ)	83,124.37	Credit cards	0
Shares	0	Other	0
Stock/Bonds etc	0
Other Investments	36,300
TOTAL	256,865.58	TOTAL	0
TOTAL NET WORTH	256,865.58

1. In addressing the requirements of cl.892.212(c), the applicant claimed that the total value of her net assets in Bluestars in Australia was AUD190,592.58 at 3 November 2014 and AUD137,441.21 in the period of 12 months that commenced on 3 November 2013 and ended on 2 November 2014. The applicant relied on the signed financial statements for Bluestars Real Estate Pty Ltd as at 31 August 2014 and 31 August 2013, that were provided to the delegate and before the Tribunal.

2. The first step for the Tribunal is to ascertain the value of the owner’s equity or net assets of the applicant in Bluestars in Australia. The Tribunal was satisfied, based on the available evidence that at all relevant times the applicant’s shareholding in Bluestars Real Estate Pty Ltd was 50%. Therefore, the Tribunal is satisfied that the value of the owner’s equity or net assets of the applicant in Bluestars in Australia is to be assessed for the purposes of this review as 50% of the value of the total owner’s equity or net assets of Bluestars in Australia.

1. The net assets of a person or business entity is generally understood to be their assets minus their liabilities (that is, their assets net of liabilities). The identification and valuation of net assets, therefore, requires an assessment of assets and liabilities and those items which comprise assets and liabilities. The accounting profession has developed definitions of these terms which have become standardised in recent years (see Accounting Standards on Australian Accounting Standards Board (AASB) website: >

   The accounting terms “net assets”, “asset” and “liability” are not defined in the Act or Regulations. Therefore, in determining the meaning of the terms, the decision-maker (the Tribunal in this review) should have regard to the ordinary meaning of the terms and, where appropriate, to policy guidance provided in the Policy Advice Manual, or PAM3, as applicable when this application was made. The Tribunal is mindful that while it may be guided by policy, it is not bound to follow policy (see Brennan J in Re Drake No. 2 (1978-1980) 2 ALD 634). The Courts have held that the Department’s PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. There is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant (see for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429 and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]).

2. The net assets of a business can be defined as the amount attributable to the owners/shareholders after deducting financial liabilities owed to third parties (that is, total assets – total liabilities = net assets). This is also known as shareholder’s equity and is usually displayed on the Statement of Financial Position of the business (previously known as a balance sheet). An asset is defined by the AASB as a resource controlled by an entity as a result of past events and from which future economic benefits are expected to flow to the entity. Liabilities are the opposite of assets and a liability is defined by the AASB as a present obligation of the entity arising from past events, the settlement of which is expected to result in an outflow from the entity of resources embodying economic benefits.

3. At the hearing, Ms Fang told the Tribunal that she believed that her accountant did not clearly set out how the business was run in Shanghai. The Tribunal asked Ms Fang whether the Shanghai office was established as a branch of Bluestars or as a separate company or entity. Ms Fang confirmed that the Shanghai office was not established as a separate company or entity. She described the Shanghai office as an office in Shanghai, China with the Bluestars brand which belongs to Bluestars’ head office. Ms Fang told the Tribunal that all assets of the Shanghai office and the Shanghai office payroll are controlled by Bluestars’ head office.

4. Ms Fang confirmed that there is no lease for the Shanghai office. However, the Shanghai office is registered with the local government authority.  The registration documents were signed by a Shanghai office employee. Rent is paid for the Shanghai office to Mr Fangming Dai (who the ASIC documents confirmed was a director of Bluestars from 17 December 2009 to 24 October 2018). The rent is paid from the Bluestars business account.

5. The Tribunal asked Ms Fang to identify where expenses claimed for rent for the Shanghai office are listed in the Bluestars profit and loss statements. Ms Fang told the Tribunal that her accountant didn’t prepare the Shanghai office accounts. They are prepared by a local employee. Her accountant does not list the Shanghai office rent details separately as they are only shown on local Shanghai documents. However, the accountant includes the Shanghai office rent in the Bluestars’ profit and loss statements to balance the accounts.

6. Ms Fang maintained that the total value of the assets representing the Shanghai office will not be less than AUD200,000. The Tribunal asked Ms Fang to identify the assets of the Shanghai office. Ms Fang told the Tribunal that the assets of the Shanghai office were accumulated from money sent to the Shanghai office by Bluestars for rent and marketing and other outgoings and expenses.

7. The Tribunal noted that outgoings of the types that Ms Fang referred to are not generally regarded as assets but rather, as expenses. Ms Fang told the Tribunal that Bluestars needed to put money into the Shanghai office until 2017 because since she joined Bluestars it has focused its business on Shanghai which has big potential. Prior to her joining, Bluestars did not conduct business in China or internationally. She was the one who started the Shanghai office. The main business activity of the Shanghai office is selling properties in Australia. Compared with the level of property sales prior to her joining the business, more properties have been sold since she joined and opened the Shanghai office.

8. The Tribunal put to the applicant that her evidence was consistent with the Shanghai office assets being properly recognised as expenses and not as assets. The Tribunal noted for the purpose of satisfying the requirements of cl.892.212, the assets owned by the applicant must be assets in the main business in Australia (emphasis added). The Tribunal told the applicant that it would allow further time after the hearing to provide documents verifying that the Shanghai office assets are assets and explaining how the funds for the acquisition of the Shanghai office assets were sourced. The Tribunal also told the applicant that it would allow further time after the hearing to provide information verifying that the Shanghai office assets are assets in the Bluestars’ business in Australia. The Tribunal then adjourned the hearing to allow time for the applicant to confer with her representative before proceeding.

9. When the hearing resumed, the applicant confirmed that she had conferred with her representative and wished to proceed with the hearing. Ms Fang told the Tribunal that the revenue and assets of Bluestars are derived from two different sources. One source of revenue is from properties that Bluestars manages and provides for rental in the Australian market. The other source of revenue from the Shanghai office activities is the sale of Australian property to the Chinese market, the management of properties for Chinese nationals who own property in Australia, and providing consultancy services for Chinese nationals who have interests in the Australian market.

10. Ms Fang maintained that the Shanghai office assets are assets of Bluestars in Australia because even though Bluestars provides money to the Shanghai office for its expenses, the Shanghai office then puts money back into Bluestars in Australia. Ms Fang submitted that as Australian taxation is paid on the income that the Shanghai office transfers to Bluestars, the income that the Shanghai office transfers to Australia is an asset in Australia. Ms Fang gave evidence that the income from the Shanghai office is AUD321,000, which is higher than the threshold net value specified in cl.892.212(c).

11. The Tribunal invited Ms Fang to provide further information regarding the Shanghai office assets after the hearing. In particular, the Tribunal invited Ms Fang to provide a detailed breakdown of the Shanghai office assets and to address the legislative requirements that the items must be assets and not expenses and that they must be assets in Australia. The Tribunal invited the applicant’s representative to make oral submissions at the hearing. The representative declined and told the Tribunal that they would provide written submissions after the hearing. The Tribunal advised the applicant that it would allow until 4 June 2020 to provide the information and submissions. It advised the applicant that if she required additional time to provide the information and submissions, she could make a request to the Tribunal for an extension of time and that the request should be received by the Tribunal before 4 June 2020.

12. On 4 June 2020 the Tribunal received an email from the applicant’s representative. Documents the Tribunal received from the applicant on 4 June 2020 included ledger entries reports for the Bluestars ledger account number 2020 – Aoben Shanghai for the 2012 to 2015 financial years. The documents the Tribunal received from the applicant on 19 June 2020 included an index with paginated bank statements for Bluestars’ Westpac Business One account (account number XX-3102) on funds transferred from Australia to the Shanghai office from 2010 to 2014. An email that the Tribunal received from the applicant’s representative on 19 June 2020 noted that the Shanghai office has to use a local business to register the lease, as an overseas entity is not allowed to sign a lease unless it is registered as an independent business entity, such as Bluestars Real Estate Pty Ltd in Shanghai, China. The email stated that the representative for the Shanghai office was Ms Li Ying, a local resident of the People’s Republic of China. The main director from Bluestars who has been in charge of the correspondence with the Shanghai office was Mr Fangming Dai, while Ms Fang has been in charge of the general management of Bluestars.

13. The ledger entries reports list individual ledger transactions and include details of transaction dates, amounts and transaction descriptions, the classification of transactions as debits or credits and the debit and/or credit balances of the ledger accounts for each financial year. The index with paginated bank statements lists payments from Bluestars to its Shanghai office including transaction dates, amounts and transaction descriptions.

14. All transactions recorded in the bank statements for amounts transferred to the Shanghai office had corresponding entries in the ledger entries reports showing funds allocated to the Shanghai office ledger account. There was an additional entry in the ledger entry report for the 2012 financial year for an amount of AUD8,100, which was credited on 30 September 2011 for “reallocation of SH loan”. This was not recorded in the bank statements. The ledger entries reports recorded that amounts were expended from the Shanghai office account as follows:

    ·AUD4,975 credited on 30 June 2013 for Shanghai promotions;

    ·AUD31,789.50 credited on 30 June 2013 for money spent in SH;

    ·AUD6,860 credited on 30 June 2013 for furniture;

    ·AUD74,370 credited on 31 March 2014 for travel expenses;

    ·AUD74,072.43 credited on 30 June 2014 for Weihe travel;

    ·AUD300,000 credited on 30 June 2014 for reallocation of loan;

    ·AUD70,689.04 credited on 30 June 2015 for Shanghai operating costs.

15. Based on the information in the ledger entries reports, the Tribunal calculated the balance of the Bluestars ledger account number 2020 – Aoben Shanghai as:

    ·financial year ended 30 June 2012:   AUD109,196 (debit balance);

    ·financial year ended 30 June 2013:   AUD125,751.50 (debit balance);

    ·financial year ended 30 June 2014:   AUD279,793.09 (debit balance);

    ·financial year ended 30 June 2015:   AUD209,104.05 (debit balance);

16. The evidence before the Tribunal did not verify the destination account for the amounts that were claimed to be transferred from the Bluestars business account to the Shanghai office. However, the applicant’s oral evidence and the information in the bank statements and the ledger reports indicate that the amounts were transferred from Bluestars’ business account to a Shanghai office account.

17. The Tribunal noted the applicant’s clear and consistent evidence that the Shanghai office business activities are conducted outside Australia.  The information in the financial documents was consistent with funds transferred to the Shanghai office account being applied to pay expenses that the Shanghai office incurred in the course of its business operations. In the Tribunal’s view, with the exception of the AUD6,860 allocated to the purchase of furniture on 30 June 2013, the evidence did not demonstrate the expenditure identified in the ledger reports for which amounts were transferred to the Shanghai office was for resources controlled by Bluestars as a result of past events and from which future economic benefits are expected to flow to Bluestars. Rather, the evidence was consistent with the expenditure being made to settle present obligations of Bluestars arising from past events in respect of the business operations of the Shanghai Office. The Tribunal noted that the ledger item for AUD300,000 for the reallocation of a loan made on 30 June 2014 was not referred to by the applicant and the reason for the allocation was not explained in the documentation. While a loan may be an asset in certain circumstances, the Tribunal was not satisfied that this was the case here as the classification of the amount as a credit to the Shanghai office ledger account reflects a transfer of funds out of the Shanghai office account and there was no corresponding increment in the value of the assets recorded in the Bluestars’ financial statements.

18. The fact that the debit balances were recorded for the Shanghai office account for each financial year is consistent with the funds representing the account balances remaining in the Shanghai office account at the end of each financial year. The documents did not demonstrate that the funds representing the account balances were returned to Bluestars in Australia or that they were applied to fund the acquisition of other assets by Bluestars in Australia. The Tribunal finds that the evidence is not sufficient to demonstrate that the Shanghai office assets are assets in Australia.  Having regard to the oral and documentary evidence, the Tribunal did not accept that the Shanghai office assets are assets in Bluestars’ business in Australia as the applicant claims.

19. In accordance with the findings set out above, the Tribunal calculated the net value of the assets of Bluestars in Australia after excluding the value of the Shanghai office assets. The Tribunal applied the other information in the financial statements in its calculations. These net values are:

    ·AUD101,392.06 as at 31 August 2014 (AUD381,185.15 total net assets shown on the balance sheet - AUD279,793.09 Shanghai office assets = AUD101,392.06 net value of Bluestars’ assets in Australia);

    ·(AUD46,353.11) as at 31 August 2013 (AUD274,882.41 total net assets shown on the balance sheet - AUD321,235.52 Shanghai office assets = (AUD46,353.11) net value of Bluestars’ assets in Australia).

20. Based on these calculations, the Tribunal calculated the net value of the assets owned by the applicant in Bluestars in Australia as:

    ·AUD50,696.03 as at 31 August 2014 (AUD101,392.06 total net value of assets of Bluestars in Australia x applicant’s 50% shareholding = AUD50,696.03 net value of the assets owned by the applicant in Bluestars in Australia);

    ·(AUD23,176.56) as at 31 August 2013 ((AUD46,353.11) total net value of assets of Bluestars in Australia x applicant’s 50% shareholding = (AUD23,176.56) net value of the assets owned by the applicant in Bluestars in Australia).

21. Having regard to the available evidence, the Tribunal is not satisfied that the assets owned by the applicant in Bluestars in Australia, being the applicant’s nominated main business, had a net value of at least AUD75,000 at the time of the application (on 3 November 2014) and have had a net value of at least AUD75,000 throughout the period of 12 months ending immediately before the time of the application (being the relevant period from 3 November 2013 to 2 November 2014). The required net value of AUD75,000 must be met as at 3 November 2014 and throughout the relevant period for the requirements of cl.892.212(c) to be satisfied. Therefore, the Tribunal concluded that the applicant does not satisfy cl.892.212(c).

22. As the Tribunal has found that the applicant does not meet cl.892.212(c), the applicant must meet both cl.892.212(a) and cl.892.212(b) in order to satisfy 892.212.

    Business and personal assets

23. The delegate did not specifically address this issue in the primary decision. Clause 892.212(c) requires that the net value of the business and personal assets in Australia of the applicant were at least AUD250,000 at the time of visa application and throughout the relevant period.

24. The Tribunal applied the findings set out above in calculating the net value of the business and personal assets in Australia of the applicant. For the reasons already discussed, the Tribunal did not accept the applicant’s claims in relation to the value of her net assets in Bluestars. The information in the documents that the applicant provided was consistent with the net values of her other claimed business and personal assets in Australia. The Tribunal calculated the value of the net value of the applicant’s business and personal assets in Australia as follows:

Item	31 August 2014 (AUD)	31 August 2013 (AUD)
Investment property	365,000
Cash (Westpac)	51,603.10
Net equity – Bluestars	50,696.03	(23,176.56)
Cash (ANZ)	83,124.37
Other investments	36,300
TOTAL	467,299.13	96,247.81

1. There was no evidence before the Tribunal that the net value of the business and personal assets in Australia of the applicant as at 31 August 2013 (being AUD96,247.81) had increased to at least AUD250,000 by 3 November 2013.

2. Based on these findings, the Tribunal is not satisfied that the evidence demonstrates that the net value of the business and personal assets in Australia of the applicant was at least AUD250,000 at the time of the application (on 3 November 2014) and had a net value of at least AUD250,000 throughout the period of 12 months ending immediately before the time of the application (being the relevant period from 3 November 2013 to 2 November 2014). The required net value of AUD250,000 must be met as at 3 November 2014 and throughout the relevant period for the requirements of cl.892.212(b) to be satisfied. Therefore, the Tribunal concluded that the applicant does not satisfy cl.892.212(b).

3. It is mandatory for the applicant to demonstrate that they meet two of the three requirements set out in cl.892.212(a), cl.892.212(b) and cl.892.212(c) in order to satisfy cl.892.212.  As the Tribunal is satisfied that the applicant does not meet the requirements in cl.892.212(b) and cl.892.212(c), the Tribunal concluded that cl.892.212 is not satisfied. It was not, therefore, necessary for the Tribunal to go on to consider whether the applicant meets the requirements in cl.892.212(a).

4. Given the findings above, the Tribunal is not satisfied that cl.892.212 is met. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Business Skills (Residence) (Class DF) visa.

   Amanda Ducrou
   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.

   1.11AOwnership 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.