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

1. 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).

2. 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).

3. 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.

4. 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.

5. 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.

6. The Tribunal acknowledged receipt of the review applications on 2 August 2016, together with a copy of the decision record. The Tribunal received details of the appointment on 2 August 2016 of an authorised representative (Visa Partner Pty Ltd) for the applicants. The representative provided information dated 31 May 2018, with submissions and evidence supporting the review application.

7. On 19 June 2019, the case was constituted to a Tribunal Member, and on 19 July 2019, the Tribunal wrote to the applicants under section 359A of the Act, providing particulars for comment or response by 2 August 2019, to certain information which the Tribunal considers would, subject to comments or response, be the reason or a part of the reason for affirming the decisions under review. The particulars set out as follows:

   “The Tribunal is concerned with the provision in subregulation 892.211(2) which provides:

   892.211

   (1) The applicant has had, and continues to have, an ownership interest in one or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

   (2) For each business to which subclause (1) applies:

   (a) an Australian business number has been obtained; and

   (b) all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.

   Our review of the Department’s file (BCC 2016/2820595) shows that the Department wrote to the applicant enclosing details of the information which was required in support of the application and included a request made 30 April 2016, the application having been made on 21 May 2015. The BAS information was not provided in respect of the 2 years immediately prior to the application until May 2016, being one year after lodgement.

   It appears that the requirement of the regulations in 892.211 (2) (b) has not been complied with, as the relevant BAS information was not included in the application, and was not provided until one year after lodgement”.

8. The agent for the applicants responded by email on 25 July 2019 stating that the first named applicant “believes the BAS information was supplied to immigration with the original application”. The agent goes on to assert that following a request to the Department via freedom of information “not all information was supplied to us, in particular nothing regarding his SC 160 visa. We believe immigrations internal file management is responsible for the missing BAS statements. This is supported by the fact that immigration did not raise any concerns with 892.211 (2) (b) as part of the original decision.” The response included an email exchange with the FOI case officer and the agent in 2017, where the FOI case officer advised the agent that “all documents that were available were released to you and your client”.

9. On 22 August 2019, the Tribunal invited the applicants to a hearing and requested that they provide any additional documents or information that they wished to rely upon during the hearing, by 12 September 2019.

10. Following further enquiry of the Department by the Tribunal, on 2 September 2019 the Department advised the Tribunal that their records indicate “there were no business activity statements (BAS) provided by the applicant at the time he lodged his DF-892 visa application. These were requested by the decision-maker in their request letter dated 22/02/2016. There are no BAS documents saved to TRIM.”

11. The Tribunal received no further response from the agent to its letter, and sent a further natural justice letter to the applicants dated 6 September 2019, informing them of the outcome of the Tribunal’s enquiry of the Department concerning the BAS statements, and noting that the “Ministers delegate subsequently requested more information from you by letter dated 22 February 2016”. The Tribunal letter further advises the applicants as follows:

    “In addition to the reasons identified by the delegate, the Tribunal considers that cl. 892.211 may also be a determinative issue on the review”.

12. The applicants appeared before the Tribunal on 19 September 2019 by video link from Townsville to give evidence and present arguments. The Tribunal received oral evidence from both applicants.

13. The applicant was represented in relation to the review. The representative also attended the Tribunal hearing and made submissions.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

15. 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.

16. 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

17. 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.

18. 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.

19. 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

20. 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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicants meet the primary criteria in cl 892.21 of the Regulations. In order to satisfy the criteria, the application must meet all the requirements. If any one of the requirements in the Regulations is not met, then the visa criteria will not be met and it will not be necessary to consider other issues.

2. For the hearing, the applicants have dealt specifically with the cl. 892.212 provisions which specify that the applicants meet at least 2 of the 3 requirements set out. The applicants seek to rely upon cl.892.212 (a) and cl.892.212 (c). The applicants have not sought to rely upon any additional information at the hearing, including in relation to the Tribunal’s concerns raised before the hearing about the documentation submitted with the application. The applicants have not sought an extension of time to provide anything further, unless requested by the Tribunal.

3. By its letter dated 6 September 2019, the Tribunal specified the importance of cl. 892.211 and in particular, whether the applicants had provided all BAS required by the ATO for the period of at least 2 years immediately before the application was made.[5]

   [5] 892.211 (2) (b)

The Hearing

1. The Tribunal asked the applicants about completion of the Form 1217 lodged with the application. The applicant said he had completed the form without assistance from a migration expert or representative. The Tribunal asked about the answers given to question 14 of part E of the form, and in particular, how the figures were arrived at in May 2015. The applicant said he had entered the figures himself and it was his hand writing which appeared in the form. He said that in trying to recollect why he inserted those figures, he said he now had “no idea”. He believed he would have spoken to his accountant at the time. He said he had invested $280,000 when he purchased the business, and advanced further sums which he had transferred to Australia from his funds held in the United Kingdom. He thought the total of those amounts at the time of application was approximately $550,000 which he said he had provided in cash. He said he regarded the value of his assets as the price he had paid for the business, $280,000, together with the additional funds he had advanced from his own cash assets.

2. The Tribunal asked questions about the stated loans advanced of “AUD 470,000”. The applicant said that before coming to Australia he had given his brother Glen, $450,000. He said that Glen had migrated to Australia and purchased property which Glen mortgaged to the bank (NAB) for a facility of $450,000. Glen then paid this amount to the applicant, which the applicant says he then lent to the business. The applicant said this amount was included by his accountant in the “loans” advanced on the balance sheet. The applicant said that the Tribunal should consider the amended balance sheet provided by the representative with the submissions of 31 May 2018[6] as a correct calculation of the loans, classified as “non-current liabilities” and “Loans -Related Parties”. The total of the amount relied upon as loans in the amended balance sheet is now $790,375.96. The applicant said this equates to the facility of $450,000 given to him by Glen which he deposited into his own account before lending to the corporation, and a further $340,000 advanced from his personal funds (rounded) for business purposes. The applicant said that these loan transactions had not been documented, other than as ledger entries created by the accountant, but he could provide evidence from his Lloyd bank accounts to demonstrate he had transferred his own personal funds. He said the transaction with his brother was not otherwise documented between them. The corporation’s ledger record for the applicant’s loan account is produced[7] and dated 11 May 2016, which shows a closing balance at 30 June 2014 of $228,675.96, which increased as at 31 March 2015 to $340,375.96.

   [6] T files, Part II at f 321, and at Part I f 32;

   [7] DIBP Part 1 at ff194-195

3. The applicant said that the business was trading at a loss when he purchased it in 2011. He said it continued to make a loss for 5 years, and has only just started to break even. He agreed that in order for the applicants to establish a net value of at least $75,000 throughout the period of 12 months ending immediately before the application was made of assets owned by them in the business, the amended balance sheet would need to be accepted, and which excluded the related party loans as liabilities totalling $790,000 (rounded). The applicant said that on this basis, the net assets of himself and his spouse in the business would be greater than $75,000. The applicant also said that if necessary, he could now show that the business and personal assets of the applicants in Australia had a net value of at least AUD 250,000 and which could be demonstrated both now and at the time of application. The representative submitted that the applicants could meet cl. 892.212 (b), in addition to the submissions the applicants met cl. 892.212 (a) and (c).

4. The Tribunal asked questions about how the application was prepared and sent to the Department for consideration. The applicant said initially that he thought his spouse had filled in the forms, using information he supplied. He then agreed however it was his handwriting on the form which he had completed. He said he had not kept a record of what he had provided with the application. He said he recollected that he would have provided the BAS with the application, as he went through a checklist before submitting the application. He said in hindsight he should have sought assistance from a migration expert. But he thought he was about “99% sure” he would have provided all the information from his checklist. He thought that he would have been contacted by the Department if documents had not been included when the application was submitted.

5. The applicant said after the application was submitted in May 2015, he did not hear anything until about February 2016. He did not recall any other communication and thought he might not have received the Department’s letter dated 22 February 2016. He does however recall that by May 2016, he was putting documents together to respond to the further requests from the Department. He agreed that he had put some in an envelope which he sent by registered post to the Department. He thought this may have included “additional copies of the BAS”. The Tribunal put to him that the Department file included a downloaded and printed copy of the corporation’s tax agent portal, dated 4 May 2016. The applicant said he had never accessed that ATO portal, and that he would have requested those documents from his accountant. He agreed that the BAS were lodged as set out in the ATO statement, which included all statements for the period from April 2013 to March 2015, lodged in the period 10 April 2015 to 17 April 2015. The Tribunal asked the applicant to comment whether the BAS documents on the Tribunal file were provided to the Department before May 2016. The applicant said he could only rely upon his recollection and believed he would have provided those documents both at the time of application, and then when requested by the Department on 30 April 2016. The Tribunal noted that it was reasonable to expect the Department would not have asked for the documents if they had already been provided. The applicant’s representative responded and asked the Tribunal to consider that the documents may have been misplaced by the Department, and that the applicants should have the benefit of the doubt in that regard.

6. The Tribunal notes this explanation from the applicant that he believes he would have provided the documents when the application was submitted, which means the applicant must have obtained copies of the BAS from his accountant at that time, or kept copies himself which he then provided (which would not have been lodged copies), as he had never accessed the ATO portal himself. The applicants however have only produced copies of documents provided by the accountant in May 2016 from the ATO Portal, to rely on the applicant’s belief that he would have submitted the BAS documents with the application. The applicant conceded however that he had not kept copies of documents or any record of what he had submitted to the Department at the time of application.

Ownership interest in main business

1. Clause 892.211(1) requires that the applicant had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made and continued to have that interest at the time the visa application was made. The applicant must continue to satisfy this requirement at the time of this decision: cl.892.221 (a). No more than two businesses can be nominated for this purpose (r.1.11(2)) and only one or both of the businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion: Yang v Minister for Immigration and Border Protection [2014] FCCA 1576.

2. The applicants claim an ownership interest in the corporation which meets the requirements. The applicants say that the corporation owns and operates the micro-brewery U-Brewit Cairns franchise (the franchise), which is the sole operating business. The corporation has owned and operated the franchise since its purchase on 17 October 2011[8]. The Tribunal deals with the specific preliminary issues below.

ISSUE ONE

[8] DIBP file Part 1 at ff 157B

Does the applicant have an ownership interest in each business relied on at all relevant times?

1. An ‘ownership interest’, in relation to a business, means an interest in the business as:

   ·a shareholder in a company that carries on the business, or

   ·a partner in a partnership that carries on the business, or

   ·the sole proprietor of the business;

   The applicant may hold such an interest indirectly through one or more interposed companies, partnerships or trusts: r.1.03 of the Regulations and s.134(10) of the Act. Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of r.1.11A of the Regulations, set out in the attachment to this decision: r.1.11A(1).

2. In order to meet cl.892.211(1) the Tribunal must be satisfied that the applicant had an interest of this kind in the relevant business or businesses both at the time of making that application, and for the two years immediately before. In order to meet cl.892.221(a), the Tribunal must be satisfied that the applicant continues to satisfy this requirement at the time of this decision.

3. The Tribunal has reviewed the information on the Department’s files[9] and notes the corporation was registered on 31 August 2011, shortly before purchase of the franchise. The ASIC summary records the applicants as together owning 100% of the issued shareholding. The applicants are the principal officeholders in the corporation.

   [9] Ibid at ff 129A – 130B

4. The Tribunal has had regard to the documents provided both to the Department and with the representative’s more recent submissions, which includes a current ASIC record. The financial documents show the corporation was actively trading when the application was submitted, and has continued to trade throughout the period up until the time of hearing. The ASIC record discloses that in the period from 21 November 2013 to 10 December 2013, when a strike off action was in progress, that it did not result in the corporation becoming deregistered or affect the ownership interest of the applicants. The Tribunal has considered the issues and the oral evidence of the applicants at hearing. Having considered that evidence, the Tribunal finds that the applicants are the only shareholders in the company carrying on the business, which interests are held in their own names. The Tribunal finds the ownership interest existed at all relevant times including on submission of the application and as at the date of hearing.

5. Accordingly, the Tribunal is satisfied that the applicant did have and does have an ownership interest in the nominated business at all relevant points in time.

6. The Tribunal must now consider the nature of the applicant’s interest in this business, whether the business was “actively operating”, and whether it met the definition of ‘main business’ in the period commencing two years immediately prior to the date of application and as at the date of application, being the period from March 2013 to March 2015 (the relevant period).

7. The Tribunal must consider these issues as at the date of this decision and whether the applicant continues to satisfy cl.892.211 (1).

ISSUE TWO  

Was each business relied on actively operating at all relevant times?

1. In order to meet cl.892.211 (1) the Tribunal must be satisfied that the relevant business or businesses were actively operating both at the time of making the visa application and during the two years immediately before.

2. In order to meet cl.892.221 (a) the applicant must continue to satisfy this requirement at the time of this decision.

3. The term ‘actively operating’ is not defined in the Act or Regulations. In considering whether this requirement is met, the Tribunal may consider whether the business exhibited activity of a ‘repetitive, continuous and permanent character’ at the relevant times, in which the business actively sought to generate business, in fact generated trade and custom and derived some financial gain for its activities in the relevant period: Shahpari v Minister for Border Protection [2016] FCCA 513 at [71].

4. The applicant has explained that he is the managing director and that he runs the business principally via the Internet and by email, dealing with customers and suppliers. He said that he is also responsible for maintaining equipment and maintenance of the brewery site. The applicant said that he had made a decision approximately 10 years ago to migrate to Australia collectively with his family and to be with his brother. He said that after travelling to Australia many times on tourist visas, he was told the only way he would be able to remain permanently would be to obtain a business. He said that his intention in setting up the corporation and purchasing the business was to enable him and his family to remain in Australia. He said that he had purchased the business in 2011 when it was not profitable, and it has taken him since that time for it to break even. He said that he still owns a business in the United Kingdom which is in roofing. He said it was a significant business before he left the UK, with a turnover of approximately $8,000,000. He said the turnover is now about $1,000,000, and he no longer has an “active interest”, although he is still the owner of that business. He said his wife does bookwork for that business including paying wages and accounts. He said that in previous years he travelled frequently but now remains primarily in Australia. He said that when he was travelling, he was able to run the business in Australia by Internet and email, and with the assistance of his Australian employees, Daniel Pope and James Warnest.

5. The applicant said the corporation only operates the franchise. He said that it has operated in the same way since he purchased it in 2011. The Tribunal notes that the brewery operation is conducted subject to the franchise agreement, a copy of which has been produced. The Tribunal has considered this evidence and is satisfied that at relevant times, the business exhibited activities of a repetitive, continuous and permanent character under the management and control of the applicant. The Tribunal is satisfied the business was conducted for financial gain, even though it continued to make a loss in the period from 2011 until at least 2016, and has been financially subsidised by the applicant from personal financial resources. The Tribunal is satisfied the applicants actively operated the business, notwithstanding it was making losses, for the principal purpose of being able to pursue permanent residency.

6. The Tribunal finds it is satisfied that that on the information and evidence provided, the corporation has been actively operating the micro-brewery franchise at all relevant points in time.

ISSUE THREE

Does each business relied on satisfy the definition of ‘main business’ at all relevant points in time?

1. In order to satisfy the requirements of cl.892.211(1), the business or businesses relied on by the applicant must meet the definition of ‘main business’ at the time of application and during the two years immediately before. Clause 892.221(a) requires that the applicant continues to satisfy this requirement at the time of decision. The term ‘main business’ is defined in r.1.11 of the Regulations. There are four elements to the definition, each of which must be satisfied for a business to be a main business.

2. Firstly, the applicant must have or have had an ownership interest in the business. ‘Ownership interest’ is defined in s.134(10) of the Act: r.1.03.  If a beneficial interest is relied on for these purposes, certain evidentiary requirements must also be met: r.1.11A. These provisions are set out in full in the attachment to this decision.

3. Secondly, the applicant must maintain or have 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.

4. Thirdly, 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 must meet certain thresholds:

   ·if the business is operated by a publicly listed company, the value of the ownership interest must be at least 10% of the total value of the business;

   ·if the businesses is not operated by a publicly listed company and the annual turnover of the business is at least AUD400 000, the value of the ownership interest must be at least 30% of the total value of the business;

   ·If the business is not operated by a publicly listed company and the annual turnover of the business is less than AUD400 000; the value of the ownership interest must be at least 51% of the total value of the business.

5. Finally, the business must be a qualifying business. ‘Qualifying business’ is defined as an enterprise that 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 is not operated primarily or substantially for the purpose of speculative or passive investment: r.1.03.

6. The Tribunal has carefully considered the information provided and the discussion conducted at the hearing. The Tribunal finds that as at the period from March 2013 to the submission of the application in May 2015 and continuing to the date of hearing, the applicants held a 100% ownership interest in the corporation. In considering the issue of “main business” and “actively operating” the Tribunal has considered the applicants’ response to questions about their travel to and from Australia during that period. The Tribunal has noted the applicant is involved in more than one business, which includes the corporation in Australia, his roofing business in the United Kingdom, and a new micro-brewery business the applicant has established in Wales. The applicant said his latest venture in Wales has not gone well and is unlikely to continue. He said the business of the corporation in Australia has struggled but has now reached a point where it is breaking even. The applicant said he is presently involved as an owner-builder in Queensland, building 3 houses for his family. This is not part of the corporation’s business, but more part of the applicant’s migration plan.

7. The applicants confirmed at hearing that the “main business” continues to operate. The second named applicant gave evidence that she assists the applicant in the operation of the corporation’s business, doing whatever is required of her by the applicant. She said he is the principal decision-maker and controller of the business and has been since it was acquired in 2011. She said that he gives her documents to sign and things to do which he completes but that he has the principal overview of the operation of the business. She said that she is not “across the detail” or the paperwork. She said she was aware there were things transacted between the applicant and his brother Glen concerning financing for the corporation. She said she had not seen any documentation and was not aware whether anything existed. She said that “Mark deals with everything”, including everything to do with this application. She confirmed that the business is still operating from the site in Cairns, and that she attends the site on a regular basis.

8. Having regard to the evidence, the Tribunal is satisfied that the nominated business does meet the definition of “main business” at all relevant points in time.

9. Given the findings above, the Tribunal is satisfied that cl.892.211 (1) is met and the Tribunal must consider the remainder of the regulation.

Australian Business Number and Business Activity Statements

1. Clause 892.211(2) must be satisfied as at the time of visa application. It requires that, for each business to which cl.892.211(1) applies:

   ·an Australian Business Number has been obtained, and

   ·all Business Activity Statements required by the Australian Taxation Office (ATO) for the two years immediately before the visa application was made have been submitted to the ATO and have been included in the application.

2. Having regard to the above findings, the relevant business is the corporation and the franchise it conducts. The Tribunal has referred earlier in these reasons to requests for information made of the applicants as to the provision of the corporation’s BAS at the time of application. The relevant BAS were required for the period from March 2013 to March 2015, and as submitted to the ATO.

3. It is clear from the information provided by the Department and having reviewed the Department’s files, that the Department was of the view that the BAS were not included in the application. This is because in its two letters to the applicants on 22 February 2016 and 30 April 2016 the Department provided a checklist referring specifically to the BAS and which it says were not provided with the application.

4. The Department letter of 22 February 2016[10] states “You are required to provide copies from the ATO Portal of all BAS lodged during the 2 years preceding application lodgement. BAS for the following periods have not been received: 1 April 2013 to 31 March 2015”.

   [10] ibid at part 2 folio 16B-17A

5. The Department letter of 30 April 2016 repeats the request.[11] The Department letters also refer to the need to provide the Department with the Integrated Client Account details for the period 1 April 2013 to 31 January 2016. The ATO integrated client account records details of transactions for the registered entity as well as payments and penalties, and is a summary of the transactions on the client’s account processed during a specified tax year. Lodgement of this information with the application enables the Department to properly review the financial history of the entity and its trading activity during the two year period specified.

   [11] ibid folio 24A

6. The applicant was asked about the BAS records appearing on the Department’s file[12] as having been downloaded and dated 4 May 2016. It was put to the applicant that this was the date in fact on which the ATO Portal was accessed and those documents downloaded and printed. The applicant confirmed that he had never accessed the ATO Portal himself, and that it was only accessed by his accountant.

   [12] ibid at Part 1 folio 123A-128B this

7. The Tribunal reminded the applicant of the requirements of the regulation cl. 892.211 (2). It requires that the applicant provide all BAS required by the ATO for the nominated time frame, and which have been submitted to the ATO, and which have been included in the application. The Tribunal informed the applicant it appears that the BAS for the relevant period were not included in the application lodged on 21 May 2015.

8. The Tribunal informed the applicant that although it appeared from the activity statement on the ATO Portal, being the integrated client account for the corporation, that BAS were lodged with the ATO on 10 April 2015, covering the periods April 2013 to June 2014, and lodged again with the ATO on 17 April 2015 covering the period July 2014 to March 2015, the BAS were not included in the application submitted on 21 May 2015 by the applicant. The Tribunal invited the applicant to comment, and as set out above, the applicant said he could only rely upon his recollection.

9. The Tribunal is satisfied that the reasonable conclusion on the evidence is that the BAS were lodged with the ATO by the accountant as shown on the ATO Portal and on the dates as shown for lodgement, but that they were not included with the application when lodged by the applicant on 21 May 2015.

10. The Tribunal concludes on the evidence that the ATO portal was accessed on 4 May 2016, more than a year after lodgement, and only after the information was requested in two letters from the Department. The Tribunal concludes that the ATO Portal was accessed by the applicant’s accountant and at the applicant’s request for the purpose of downloading and printing the requested information which the applicant then sent to the Department himself.

11. For the reasons set out above, the Tribunal finds it is reasonable to conclude that at the time of submission of the application, any BAS which had only just been lodged by the accountant were still in the possession of the accountant and only accessible through the ATO Portal by the accountant, not the applicant. There is no evidence the accountant provided any documents or copies to the applicants for them to keep or to submit. The Tribunal notes it would not have met the requirement for the applicant to have provided draft BAS with the application, which had not yet been lodged using the ATO Portal.

12. In an email to the Department on 16 May 2016 at 10.21 AM, the applicant responds to a “Request for More Information”, which the Tribunal understands is in response to the two letters from the Department, and in particular the letter of 30 April 2016 repeating the request for the BAS.

13. The applicant says in his email “I sent an envelope off to you last week. I’m sending another tomorrow with a copy of the franchise agreement, receipt for local police checks and more evidence of my involvement in the business.”  The applicant does not comment in his response in May 2016, to the effect that he had previously provided the requested BAS documents. It does not appear that the applicant then appreciated the importance of having already submitted the BAS with the application in May 2015, and not sent separately in May 2016.

14. The documents referred to including the franchise agreement and police checks, appear in the Department’s file[13] together as part of a bundle of documents provided by the applicant, and with a Form 80[14] completed by the applicant on 4 May 2016, the same day the ATO Portal was accessed.

    [13] ibid at folios 129A-193B

    [14] Personal particulars for assessment including character assessment

15. In the Form 80, the applicant refers to “more documentation to follow”.[15] The Tribunal concludes that the applicant sent the BAS documents to the Department in an envelope either shortly after 4 May 2016 as stated in his email, and when he completed the Form 80, or on or about 16 May 2016, when the applicant provided a copy of the franchise agreement and other documents.

    [15] ibid at folio 184A

16. The Tribunal concludes that the BAS information was provided in this fashion by the applicant approximately 12 months after the application was lodged. The Tribunal is satisfied on the evidence that the applicants did not submit all the information in support of the application at the time of lodgement, as can be determined from the applicant’s email, and that the BAS for the period were not submitted with the visa application. To the extent it is necessary; the Tribunal prefers this conclusion as a reasonable finding on the evidence, as compared to the recollection of the applicant which the Tribunal finds is unreliable and not supported by any independent documentation. The second named applicant said in evidence that she does not recall the lodgement of the documentation or what was submitted at the time. She said all this was dealt with by her husband. The Tribunal rejects the agent’s submission[16] that the Department “misplaced” the BAS and that they were in fact submitted with the application.

    [16] See supra at par 8 and 28

17. The Tribunal finds accordingly that the BAS were provided in about May 2016, only after the applicant received the prompts from the Department. This was approximately 12 months after the application was made.

18. In Nasirzadeh & 2 Ors v Minister for Immigration & Border Protection[17] the court found that cl. 892.211 (2) (b) imports an “objective temporal test” as to “whether or not the BAS were included with the visa application.” The court went on to hold that the Regulation importing the test was valid, and that late lodgement of the BAS did not meet the requirement in the Regulation. The court further noted (as in this instance) that this was not an issue (late lodgement) considered by the delegate, but was nonetheless a relevant consideration in determination of the application on review. In determining that the Regulation was valid, the Court noted:

    “In my view, the criterion in issue serves a clear purpose of requiring applicants for this class of visa to establish business activity as a going concern over a period of two years prior to their visa application. Further, while there may be harsh consequences, as the applicants have sought to demonstrate in this case, that is not enough to establish invalidity”.[18]

    [17] [2019] FCCA 1115

    [18] ibid at par 41 per Judge Driver

1. This Tribunal finds that the Regulation requires that the applicant submit all BAS required by the ATO for the relevant period of 2 years, included (meaning with) the application at the time of lodgement. For the reasons set out above, the Tribunal is satisfied that the applicants did not submit the required BAS included in the application. The Tribunal finds that the submission of the BAS approximately 12 months after making the application as in this instance, does not meet the requirement in the Regulation.

   Does consideration of 892.212 and the two provisions relied upon have any utility?

2. The Tribunal has had regard to the applicant’s submissions in relation to cl. 892.212 as set out above and the need to meet at least 2 of the requirements.

3. The applicants sought to rely upon the provision of employment to an Australian citizen (Daniel Pope) over a period of 12 months ending immediately before the application was made, and that the assets owned by the applicant and his spouse together in the main business of the corporation, have a net value of AUD 75,000, and had a net value of AUD 75,000 for the 12 months ending immediately before the application was made, and taking into account the amended balance sheet.

4. The Tribunal notes the applicants were aware before the hearing of the need to satisfy cl. 892.211, which they duly acknowledged, in addition to the criteria in cl. 892.212. The Tribunal asked if there was any additional information they wished to provide concerning cl. 892.211, as to the provision of documents lodged with the Department at the time of application. The applicants did not wish to raise any further information or make comments, other than as referred to above.

5. The Tribunal appreciates that the applicants have made a genuine effort with the assistance of their representative to meet the criteria relied upon in cl. 892.212 as to the employment of an Australian, and the net value of their assets owned in the main business for the relevant period.

6. The Tribunal further notes the representative’s submissions that the Tribunal should give the applicants “the benefit of the doubt” in relation to the submission of the BAS. The Tribunal does not accept that submission, preferring instead the objective analysis of the documentation submitted, and the chronology set out above which tends to dispel any doubts as to what was lodged and when, concerning the BAS.

7. The Tribunal is satisfied that consideration of cl. 892.212 (a) and (c), and any findings made concerning the applicants’ submissions and facts relied upon, would make no difference to the outcome.

8. Given the finding that the regulation for the submission of the BAS included in the application is a valid regulation with an objective temporal test, the BAS were not included in the application, and were only submitted subsequently and approximately 12 months later. The Tribunal notes that it would serve no purpose to evaluate the remaining criteria in circumstances where the applicants do not meet cl. 892.211(2) (b).

9. Given the findings above, the Tribunal is not satisfied that cl.892.211 (2) is met.

10. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

11. The Tribunal affirms the decisions not to grant the visa applicants Business Skills (Residence) (Class DF) visas.