Hillman (Migration) - [2019] AATA 5234

Hillman (Migration) [2019] AATA 5234 (23 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT: Mark William Hillman
Suzanne Hillman

CASE NUMBER: 1611855
HOME AFFAIRS REFERENCE(S): BCC2015/1461618; BCC2016/2820595
MEMBER:Alan McMurran
DATE:23 September 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Business Skills (Residence) (Class DF) visas.
Statement made on 23 September 2019 at 4:40pm

CATCHWORDS
MIGRATION – Business Skills (Residence)(Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – BAS information not provided until one year after application lodgement – value of business and personal assets in Australia at least $250,000 – value of assets in main business in Australia at least $75,000 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(10), 359A
Migration Regulations 1994 (Cth), rr 1.03, 1.11, Schedule 2, cls 892.211, 892.212, 892.221

CASES
Nasirzadeh & 2 Ors v Minister for Immigration & Border Protection [2019] FCCA 1115
Shahpari v Minister for Border Protection [2016] FCCA 513
Yang v Minister for Immigration and Border Protection [2014] FCCA 1576
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application lodged 2 August 2016 for review of a decision made by a delegate of the Minister for Immigration on 18 July 2016 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 21 May 2015. At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor).
The applicants in this case are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.
The delegate was not satisfied the applicants met the requirement in cl. 892.212 of Schedule 2 to the Regulations. The delegate refused to grant the visas on the basis that the applicants did not satisfy the requirements of cl.892.212 (b) on the information provided, as their business and personal assets in Australia did not have a net value of at least AUD 250,000, and a net value of at least AUD 250,000 throughout the period of 12 months ending immediately before the application was made.
The delegate was also not satisfied that cl.892.212(c) was met, as the assets owned by the applicants in the main business in Australia did not have a net value of at least AUD 75,000, and a net value of at least AUD 75,000 throughout the period of 12 months ending immediately before the application was made.
The Tribunal acknowledged receipt of the review applications on 2 August 2016, together with a copy of the decision record.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 5234
Decision Date: 23 September 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of the applicant, a British citizen who had previously held various temporary visas in Australia, including a Business Owner Subclass 160 visa. The applicant, along with his spouse, applied for a Subclass 892 (State/Territory Sponsored Business Owner) visa while onshore. The applicant was a 51% shareholder in an Australian corporation, Red Dragon AU Pty Ltd, which operated a micro-brewery business. The application asserted significant personal and business assets, exceeding the required thresholds for the visa.

The primary legal issue before the Tribunal was whether the applicants had met all the essential requirements for the Business Skills (Residence) (Class DF) visa, specifically Subclass 892. This included the requirement to provide Business Activity Statement (BAS) information for a specified period. The Department of Immigration and Border Protection had requested BAS statements for the periods from 1 April 2013 to 31 March 2015, and an integrated client account from the Australian Taxation Office (ATO) for the period 1 April 2013 to 31 January 2016.

The Tribunal found that the BAS statements for the periods from April 2013 to June 2014 were lodged on 10 April 2015, and for the period from July 2014 to March 2015 were lodged on 17 April 2015. Crucially, the integrated client account and tax agent portal information from the ATO, which included these lodgement activities, was only downloaded and printed on 4 May 2016. There was no evidence that these documents were produced from the ATO Portal before this date, which was significantly after the lodgement of the visa application and the requested periods. As this constituted a failure to meet an essential requirement for the visa, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The first-named applicant is a 53-year-old British citizen who first arrived in Australia on a tourist visa on 24 April 1999 (“the applicant”). The applicant has departed and returned numerous times on tourist visas in the period from 1999 to 2011, obtaining a temporary work Business Owner Subclass160 visa from 25 August 2011 until 21 May 2015, when the applicant brought the current Subclass 892 business owner application while onshore. On 31 August 2011, the applicant registered the Australian corporation, Red Dragon AU Pty Ltd. (the corporation). According to ASIC records, the corporation is registered at Edmonton in Queensland. The corporation conducts a micro-brewery business from Cairns as a franchisee. The applicant owns 51% of the issued share capital in the corporation, and the second named applicant, his spouse, holds 49%. The corporation acquired the franchise business on 17 October 2011.[1][1] DIBP file Part 1 at ff 157B In the application made 21 May 2015, the applicant refers to the corporation as the “main business” of which he is the managing director, and which business is engaged in “industrial roofing” but which will be involved in “brewery”. The applicant has provided sponsorship from Trade and Investment Queensland, the relevant sponsoring business development agency and dated 2 July 2016. The Application form lodged asserts net assets of the business in the relevant 12 month period from March 2014 to April 2015 of AUD 550,000. The application also asserts a loan from the applicant to the business of AUD 470,000. The applicant values assets of himself, and himself and his spouse in the business at AUD 1,020,000. The applicant values his net personal and business assets at AUD 1,750,000, comprising AUD 1,200,000 personal net assets and AUD 550,000 in net business assets at the time of application. A review of the Department’s files shows that the Department sent letters to the applicant on 22 February 2016 and again on 30 April 2016. Those letters contained checklists specific to the application. The checklists requested information which included that the applicants provide copies of BAS statements for the periods from 1 April 2013 to 31 March 2015. The letters also requested a copy of the integrated client account (with the ATO) for the period 1 April 2013 to 31 January 2016.[2][2] Ibid Part 2 at ff 14B – 25B A copy of the integrated client account and tax agent portal with the ATO for the corporation appears in the Department’s files, dated 4 May 2016 at 11:14 AM.[3] The account statement lists quarterly lodgement activity for the period from April 2013 to March 2015. The quarterly statements for the periods from April 2013 to June 2014 were lodged on 10 April 2015, and for the period from July 2014 to March 2015 were lodged on 17 April 2015. The documents provided on the Department’s file show the statements and the integrated client account information were printed on 4 May 2016, being the date of the documents on the Department’s file.[4] It appears that the documents were downloaded and printed from the ATO website on that date. There is no evidence copies of the documents were produced from the ATO Portal before that date.[3] Ibid Part 1 at ff 127-128B[4] Ibid

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As one of the essential requirements for the visa is not met, the decision under review must be affirmed.DECISION The Tribunal affirms the decisions not to grant the visa applicants Business Skills (Residence) (Class DF) visas.

Ratio Decidendi

Legal Principle Established

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