Hwang (Migration)

[2019] AATA 5213

Hwang (Migration) [2019] AATA 5213 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms G Hyun Hwang
Miss Minsun Kim

CASE NUMBER:  1806444

DIBP REFERENCE(S):  BCC2015/4119533 BCC2015/4119601 BCC2018/1332976

MEMBER:Peter Emmerton

DATE:26 September 2019

PLACE OF DECISION:  Adelaide

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

•cl.892.213 of Schedule 2 to the Regulations

Statement made on 25 September 2019 at 2:50pm          

CATCHWORDS
MIGRATION – Business Skills (Residence)(Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – evidence annual turnover of $200,000 12 months before application provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 199 (Cth), Schedule 2, cl 892.213

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 26 February 2018 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 applicants applied for the visa on 24 December 2015. The delegate refused to grant the visa on the basis that the first named applicant did not satisfy cl.892.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that using 3 different methods of calculation utilised in order to compensate for the imprecise correlation of the financial documents provided for the 12 months prior to the date of application, the main business total sales without GST were estimated to be between AUD176,680 and AUD183,721. The delegate could not be satisfied that the applicant had met the required annual turnover of at least AUD$200,000 in the 12 months prior to the visa application and as such did not meet clause 892.213(2).

3. The Tribunal notes that the review applicant submits that the requirements of subclause 892.213 must be met at the time of application rather than, as per the delegate, the time of decision. The Tribunal concurs but notes that it does not have a material effect in this case.

4. The applicants were 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.

   RELEVANT LAW

6. Clause 892.21 sets out the criteria to be satisfied at the time of application. The relevant clause in this review is cl.892.213(2), which provides:

   892.213

   (1) The applicant meets the requirements of subclause (2) or (3).

   (2) An applicant meets the requirements of this subclause if, in the 12 months immediately before the application is made, the applicant’s main business in Australia, or main businesses in Australia together, had an annual turnover of at least AUD200 000.

   (3) An applicant meets the requirements of this subclause if:

   (a) the applicant meets at least 2 of the requirements set out in
   paragraphs 892.212(a), (b) and (c); and

   (b) the applicant resides in, and operates the applicant’s main business
   or businesses in Australia in, an area specified in an instrument in
   writing made by the Minister for this paragraph; and

   (c) the appropriate regional authority has determined that there are exceptional circumstances for this subclause.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is able to meet the requirements of clause 892.213(2).

8. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

10. The delegate accepted the 12 month period selected as meeting the requirements as per PAM3 of the Migration regulations, the term ‘immediately before the application is made’ is interpreted as the three month period prior to the date the visa application was received by the Department. The nominated period accepted by both parties is the 12 months ending on 30 November 2015.

11. The Tribunal notes that the delegate went to considerable lengths to fairly determine the income excluding GST by employing 3 separate methods of calculation. This was a result of the documentation provided by the applicant not strictly aligning with the time period nominated. This can however only result in a fair approximation of revenue not an exact determination.

12. Again the Tribunal notes that the delegate found that using 3 different methods of calculation in order to compensate for the imprecise correlation of the financial documents provided for the 12 months prior to the date of application, the main business total sales without GST were between AUD176,680 and AUD183,721. The delegate could not be satisfied that the applicant had met the required annual turnover of at least AUD$200,000 in the 12 months prior to the visa application and as such did not meet clause 892.213(2).

13. The delegate went on to determine that to meet clause 892.213(3)(c) the appropriate regional authority has to determine that there are exceptional circumstances for this subclause. On Form 949 the appropriate regional authority in South Australia did not determine that there were exceptional circumstances for this subclause and therefore the applicant does not meet 892.213(3)(c). As such the applicant does not meet the requirements of subclause (2) or (3) of clause 892.213(1) and consequently the applicant does not satisfy clause 892.213.

14. The Tribunal has been provided with substantially more evidence in support of the visa applicant’s claim that they meet cl.892.213(2), in a format that allows for direct correlation between the relevant 12 month time period and the income stream claimed.

15. The Tribunal was provided with a letter given to the Department on 10 September 2018, in which 2 salient issues were raised. Firstly the accountants explained that ‘the total sales ($28,484) shown in the BAS report at G1 for December 2014 quarter were net of GST itself. The company chose to show the amount as GST-exclusive. However, in the Decision Record letter sent by the Department, $25,894.55 (10/11TH of $28,484) was used throughout its calculation in the letter.’ The Tribunal through reference to the materials provided, has determined that the accountant’s assertion is correct.

16. The second issue raised asserts that the accountant’s calculations were incorrect when they supplied them to the delegate, via the applicant. The accountant explained that…. ‘this letter serves to confirm that the gross sales for Cube Community Pty Ltd for the year from 1 December 2014 to 30 November 2015 were $205,784.51 (excl. GST).

    Please refer to the enclosed ‘Monthly Sales Report’ (Attachment “A”) and the copy of ATO generated BAS reports (Attachment “B”). I also would like to advise that the Business Activity Statement (BAS) for the quarter ended 31 December 2015 was amended as we found gross sales (G1) was incorrectly reported in the original BAS.

    The correct gross sales (incl. GST) for October, November and December 2015 month were as follows;

    October: $24,350,
    November: $23,250
    December: $13,350
    Total sales: $60,950

    However, we incorrectly reported $36,230 at G1 which accounts only for November and December sales and $370 of client discount adjustment.

    We found the SUM function used in the excel workpaper added values in the two cells rather than three cells from October to December. As soon as we found the error, we prepared the BAS amendment and lodged with ATO.

    As a supporting document, the company provided us a daily sales report, tax invoices and work order forms (refer Attachment “C”) which show detailed description of each works for the quarter.’

17. The Tribunal has cross referenced the materials provided by the accountant with copies of the original work orders and associated receipts. It has also manually recalculated the sales figures provided. In addition it has perused the BAS recalculation documentation submitted for taxation purposes. It is satisfied that the assertion made by the accountant is correct when they state that gross sales for Cube Community Pty Ltd for the year from 1 December 2014 to 30 November 2015 were $205,784.51 (excl. GST). The Tribunal accepts that the explanation for the mistake proffered is both reasonable and possible. No evidence has been provided by the department, the applicant’s accountant or the applicant, that might indicate deliberate deception or dishonesty.

18. The Tribunal has determined that based on the additional evidence submitted that the correct 12 month income figure prior to the visa application was $205,784.51 (excl. GST), and not within a range below $200,000 as originally determined by the delegate. Therefore the minimum threshold of $200,000 revenue in the 12 months prior to the application, as required by 892.213(2) is met.

    DECISION

19. The Tribunal remits the application for Business Skills (Residence) (Class DF) visas for all applicants for reconsideration with the direction that the first named visa applicant meets the following criterion for a Subclass 892 State/Territory Sponsored Business Owner (Residence) visa:

    ·cl.892.213 of Schedule 2 to the Regulations

    Peter Emmerton
    Member