Gamlathralalage (Migration)

[2018] AATA 3387

Gamlathralalage (Migration) [2018] AATA 3387 (1 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nawarathna Bandara GAMLATHRALALAGE
Mrs Don Ayesha Kumari BANDARA
Ms Chareen Bandara GAMLATHRALALAGE
Mr Bineth Yethmin Bandara GAMLATHRALALAGE

CASE NUMBER:  1613011

DIBP REFERENCE(S):  BCC2015/2574768 BCC2015/2575179 BCC2016/3371285

MEMBER:Cathrine Burnett-Wake

DATE:1 August 2018

PLACE OF DECISION:  Melbourne

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

·cl.892.212 of Schedule 2 to the Regulations.

Statement made on 01 August 2018 at 9:02am

CATCHWORDS
Migration – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – Whether the applicant satisfies the requirements of cl. 892.212 – Applicant’s business and personal assets were valued at greater than $250,000 during the relevant period – Business assets valued at greater than $75,000 during the relevant period – Assets obtained lawfully – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 892.212

CASES

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 August 2016 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958 (the Act).

2.    The visa applicant applied for the visa on 4 September 2015. The delegate refused to grant the visa on the basis that the applicant did not meet the financial requirements set out under subclause 892.212(c), therefore cl. 892.212 was found not to be met.

3.    The applicant appeared before the Tribunal on 25 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Rohan Withanaarachchi, the applicant’s accountant: The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

4.    The applicant was represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6.    The issue in the present case is whether the applicant, the applicant’s spouse, or the applicant and his spouse, together in the main business or main businesses in Australia have a net value of at least AUD75,000 AND had a net value of at least AUD75,000 throughout the period of 12 months ending immediately before the application is made, and that these assets were legally acquired.

DECISION

7. At review the Tribunal is assessing cl. 892.212. The applicant must meet at least 2 of the 3 requirements set out in cl.892.212.

8. Cl 892.212 provides:

892.212

Unless the appropriate regional authority has determined that there are exceptional circumstances, the applicant meets at least 2 of the following requirements:

(a)      in the period of 12 months ending immediately before the application is made, 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:

(i)      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 1 full-time employee over that period of 12 months; and

(ii)      provided those hours of employment to an employee, or employees, who:

(A)      were not the applicant or a member of the family unit of the applicant; and

(B)      were Australian citizens, Australian permanent residents or New Zealand passport holders;

(b)      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:

(i)      have a net value of at least AUD250 000; and

(ii)      had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the application is made; and

(iii)      have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together;

(c)      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:

(i)      have a net value of at least AUD75 000; and

(ii)      had a net value of at least AUD75 000 throughout the period of 12 months ending immediately before the application is made; and

(iii)      have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.

9.    The applicant has conceded that he does not meet subclause 892.212(a), therefore the applicant must meet both subclause 892.212(b) and 892.212(c). These are the two subclauses the Tribunal will be assessing.

1. The application was lodged on 4 September 2015, as such the 12 months ending immediately before the application was made, as referred to in both subclauses, is taken to mean 4 September 2014 to 3 September 2015, the relevant period.

Business and personal assets

1. The applicant has submitted that he is able to meet 892.212(b) on the basis of his family home in Cranbourne North along with a fixed term deposit held in the applicant and applicant’s spouse name with the Commonwealth Bank of Australia (CBA).

2. The CBA term deposit, reflects AUD100,000 was deposited on 4 July 2014. The application was lodged exactly 2 months later on 4 September 2014. The last entry on the term deposit statement is 8 August 2015, which reflects a balance of AUD102,658.

3. The information on file indicates the property in Cranbourne North was purchased as vacant land on 26 May 2010, with a house subsequently built. The evidence before the Tribunal is that there has never been a mortgage attached to this property and it was owned outright by the applicants during the relevant period. A certificate of title has been provided which reflects there are no encumbrances held over the property.

4. City of Casey rate and valuation notices were provided as further evidence of the ownership of the property in Cranbourne North and the value during the relevant period. The first rates notice was issued on 11 September 2014, and covers the period 1 July 2014 to 30 June 2015. The capital improved value is listed as AUD410,000. The second rates notice provided was issued on 20 August 2015 and covers the period 1 July 2015 to 30 June 2016. The capital improved value is listed as AUD410,000.

5. The applicant claims the property in Cranbourne North was worth AUD615,000 during the relevant period, however, no valuation by an official valuer has been provided; as such the Tribunal can only refer to the council rates notice as guidance. The Tribunal acknowledges that the ‘market’ value may be higher, but without substantiated evidence, the Tribunal cannot apportion a higher value than what the council rates notice specifies.

6. On the basis of the City of Casey rate and valuation notices for the 2014/15 and 2014/16 financial years, the Tribunal is satisfied that the property in Cranbourne North is worth at least AUD410,000. As such, the Tribunal is satisfied as per cl 892.212(b)(i) and (ii) that the business and personal assets of the applicant in Australia at the time of application had a value of at least AUD250,000 and had a net value of at least AUD250,000 throughout the relevant period.

7. As the property in Cranbourne North exceeds the value of business and personal assets as required in Cl 892.212(b), the Tribunal does not consider it necessary to take into consideration other assets held.

Assets owned by the applicant(s) in the main business in Australia

1. The applicant’s main business is B&B International Pty Ltd (B&B). The applicant is relying on directors loans to the business to meet the net business asset requirement. Policy allows loans by directors and shareholders to be taken into consideration.

2. The Tribunal has reviewed B&B’s financial statements for the financial years ending 30 June 2014, 30 June 2015 and 30 June 2016. The financial statements reflect, under heading ‘Non-Current Liabilities’, that for the financial year ending 30 June 2014 there was an ‘unsecured loan’ from ‘other persons’ for the amount of AUD201,411.76. For the financial year ending 30 June 2015 the financial statements reflect there was an ‘unsecured loan’ from ‘other persons’ for the amount of AUD462,841.43. For the financial year ending 30 June 2016 the financial statements reflect there was an ‘unsecured loan’ from ‘other persons’ for the amount of AUD238, 537.46. The Tribunal has been provided with a letter from the applicant’s Australian accountant, Lead Accounting and Taxation Services Pty Ltd, confirming that the unsecured loans to ‘other persons’ as described and reflected in the financial statements are solely loans from the applicant.

3. The delegate was not satisfied that AUD150,000 of the AUD201,411,76 reflected in the loan account for the financial year ended 30 June 2014 originated from the applicant. The applicant claims that he paid AUD150,000 out of his personal funds on behalf of B&B to Matipou, a NZ apple supplier, as a guarantee for supply for the seasons apples. During the hearing the applicant outlined that he had never done business with Matipou before, and as he was not known to them, and an international company, as is standard practice in the industry, was asked for a cash guarantee that they would purchase apples through Matipou. The Tribunal has been provided evidence through bank records that this money was paid from the applicant personally to Matipou and is satisfied that the AUD150,000 originated from the applicant. The Tribunal also has evidence before it that the AUD150,000 was paid back from Matipou, direct to B&B, after the purchase of the seasons apples had been completed. This transaction is reflected not only in B&B’s bank statements, but also declared in their financial statements and reflected as part of the’ unsecured loan’ from ‘other persons’ for the 2014 financial year.

4. The Tribunal has been provided with sufficient evidence through bank records that the ‘unsecured loans’ as per the B&B financial statements for the 2014, 2015 and 2016 financial years has come from the applicant. As such, the Tribunal is satisfied that the applicant meets clauses 892.212(c)(i) and (ii) as the assets owned by the applicant in the main Australian business exceeded AUD75,000 through the relevant period.

Lawfully acquired assets

1. The applicant provided evidence that he and his wife had been undertaking business activities for many years prior to coming to Australia. They solely owned a successful business, Kegalu Fresh Fruits, in Sri Lanka until 2011, and continue to own a 66% share of the business to date. Their ownership in Kegalu Fresh Fruits and their business success was the basis for their prior Subclass 163 visa application and approval, the precursor to this permanent residency application.

2. The Tribunal has been provided with the financial accounts for the 2007 through to the 2016 financial years for Kegalu Fresh Fruits prepared by the company’s accountant. In addition, the accountant has provided a letter confirming the applicant and his wife’s profit distributions from 2005 until 2017 has been approximately AUD1.4 million. The claimed profit distributions correlate with the company’s financial accounts. Further evidence has been provided from the Sri Lankan Commercial Bank which confirms that the applicant and his wife maintained a bank balance of between Rs.68, 327,857 and Rs.92, 185,890 throughout 2009 to 2013. That equates to approximately AUD550, 000 and AUD 750,000.

3. The applicant has claimed that all money brought into Australia has been sourced through his and his wife’s Sri Lankan personal and business assets. The Tribunal is satisfied on the basis of the applicants long standing business success in Sri Lanka, evidenced through company financials, Sri Lankan banking documentation as well as a letter of support from their Sri Lankan based accountant that the Australian personal and business assets, claimed for the purposes of satisfying subclauses 892.212(b)(iii) and 892.212(c)(iii), have all been lawfully acquired.

CONCLUSION

1. The Tribunal has found that cl.892.212(b) and cl.892.212(c) are met. The Tribunal is satisfied that, as two of the requisite three sub-clauses in 892.212 of Schedule 2 of the Migration Regulations are met by the applicant, it is therefore appropriate for the Tribunal to remit the matter to the Department to consider the remaining criteria for the grant of the subclass 892 visa.

2. The Tribunal finds that as the second, third, and fourth named applicants applied on the basis of being family unit members of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant's application on remittal to the Department for reconsideration.

DECISION

1. The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the applicant meets the following criteria for a subclass State/Territory Sponsored Business Owner (Residence) visa:

• cl.892.212 of Schedule 2 to the Regulations.

Cathrine Burnett-Wake
Member