Jamshidilarijani (Migration)
[2023] AATA 961
•17 April 2023
Jamshidilarijani (Migration) [2023] AATA 961 (17 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Mehrdad Jamshidilarijani
Ms Hamta Shaker
Miss Aila Jamshidilarijani
Miss Iran JamshidilarijaniREPRESENTATIVE: Mr Navid Koushke Baghi (MARN: 1681603)
CASE NUMBER: 2002695
HOME AFFAIRS REFERENCE(S): BCC2018/3259892
MEMBER:Peter Ranson
DATE:17 April 2023
PLACE OF DECISION: Brisbane
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) visa:
· Clauses 892.211, 892.212, 892.213, 892.214 and 892.221 of Schedule 2 to the Regulations.
Statement made on 17 April 2023 at 8:46am
CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – ownership interest in actively operating main business for two years before application made – online supplier before physical business opened – net business assets – funds lawfully acquired in home country – unsecured loan to associate – revised financial statements rectify errors – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(10)
Migration Regulations 1994 (Cth), rr 1.03, 1.11, 1.11A(1), Schedule 2, cls 892.211, 892.212(c), 892.221(a), 892.321
CASES
Drake and MIEA (No 2) (1979) 2 ALD 634
Ibrahim v MIAC [2009] FCA 1328
Lee v MIAC [2009] FCA 977
Shahpari v MIBP [2016] FCCA 513
Yang v MIBP [2014] FCCA 1576
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Mr Jamshidilarijani (aka Mr Jamshidi) travelled to Australia in 2012. He began bringing his assets here from 2014 and in 2016 he set up a business selling coffee, tea and herbs sourced internationally. The business is called Earth Espice Bulleen, which Mr Jamshidi operates through JMHAA Pty Ltd. In 2018 he applied for Subclass 892 visas for himself and his family and nominated Earth Espice Bulleen as his main business.
The shares in JMHAA are held by Mr Jamshidi and his family including an adult daughter who holds 15%. That meant 85% of the net assets could be ascribed to him. When they assessed the net business assets of Mr Jamshidi, the Department of Home Affairs refused to grant the visas because the amount was less than $75,000 as required by the relevant regulation.
The main issues to be decided in this case are whether Mr Jamshidi held an ownership interest in a main business at the appropriate time, met his obligations to prepare and lodge business activity statements and had net assets in his business of at least AUD$75,000.
The secondary issues to be decided are whether the business met its employment obligations, achieved turnover of at least AUD$200,000 and continues to operate at the time of this decision. It will also be necessary to consider whether Mr Jamshidi and Mrs Shaker engaged in business activities not generally acceptable in Australia.
For the following reasons, the Tribunal has decided the matter should be remitted for reconsideration.
PROCEDURAL HISTORY
On 4 September 2018, Mr Jamshidi and his family applied 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 (Cth). As the primary applicant, Mr Jamshidi must satisfy the criteria set out in Subdivision 892.2. His family need only to satisfy the secondary criteria set out in Subdivision 892.3.
His family applied based on being members of his family unit. The delegate found they could not be granted Subclass 892 visas, as they did not meet the primary criteria, nor did they meet the secondary visa criterion (cl.892.321) requiring them to be members of the family unit of a person who met the primary visa criteria.
On 29 January 2020, a delegate of the Minister for Home Affairs refused to grant the visas to Mr Jamshidi and his family under s 65 of the Migration Act 1958 (Cth) so he applied for review of that decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
A note about policy
Where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[1]
[1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).
To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the policy is consistent with the requirements as set out in the legislation as it would be an error of law for the Tribunal to state it must (emphasis added) follow what policy says concerning the scope or meaning of a provision in the Act or Regulations.
Ownership interest in main business
Clause 892.211(1) requires Mr Jamshidi 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. He must continue to satisfy this requirement at the time of this decision.[2] No more than two businesses can be nominated for this purpose,[3] and one or both businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion.[4]
[2] cl 892.221(a).
[3] reg 1.11(2).
[4] Yang v Minister for Immigration and Border Protection [2014] FCCA 1576.
Case law has established a business is not a legal entity but rather an enterprise or undertaking.[5] It is therefore important for the Tribunal to identify the business to which the definition of main business must be applied. It is also important to note that one business can be owned by multiple entities and conversely, multiple businesses can be owned by one entity. For the avoidance of doubt, an Australian Business Number attaches to an entity, not to a business.
[5] Ibrahim v MIAC [2009] FCA 1328 at [30].
The business relied on by Mr Jamshidi to satisfy these requirements is a café trading as ‘Earth Espice Bulleen’, which is owned and operated by JMHAA Pty. Ltd. ACN 158 801 999. Accordingly, the Tribunal must consider the nature of his 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. The Tribunal must also consider these issues as at the date of this decision and whether the applicant continues to satisfy cl.892.211(1).
Does the applicant have an ownership interest in each business relied on at all relevant times?
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.
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.[6] Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of reg 1.11A of the Regulations, set out in the attachment to this decision.[7]
[6] reg 1.03 of the Regulations and s 134(10) of the Act.
[7] reg 1.11A(1).
To meet cl.892.211(1) the Tribunal must be satisfied Mr Jamshidi had an interest of this kind in Earth Espice Bulleen both at the time of making his visa application and for the two years immediately before. To meet cl.892.221(a) the Tribunal must be satisfied he continues to satisfy this requirement at the time of this decision.
The Tribunal conducted an ASIC search of on 24 January 2023 on JMHAA and found it was registered on 4 June 2012. Mr Jamshidi has been the sole director and Mrs Shaker has been the sole secretary since registration. The company has issued 90,000 ordinary shares of $1.00 each fully paid as follows:
Shareholder Number % Mr Jamshidi 49,500 55% Mrs Shaker 13,500 15% Miss Isla Jamshidi (DOB 23-12-2002) 13,500 15% Miss Iran Jamshidi (DOB 11-09-1994) 13,500 15% Total 90,000 100%
The shares were issued in two tranches at different times although the relative percentages always remain as above.
At the time of application (4 September 2018), Miss Iran was over age 18. The delegate correctly found the shares held by Miss Iran could not be attributed to Mr Jamshidi as she was not a minor at the time of application nor during the two years immediately before then.
Mr Jamshidi explained at the hearing it was an Iranian custom to place some of the shares of a family business in the names of children of the household. This he said was not intended to signify ownership rather done for their future. It doesn’t matter the funds for the shares was paid by Mr Jamshidi or that Miss Iran had never received any income or drawings from JMHAA. She is recorded by ASIC as beneficially holding 13,500 shares and as she was over 18 at all relevant times. The shares are legally hers in Australia and cannot be ascribed to him in determining his ownership interest.
Earth Espice Bulleen was purchased by JMHAA on 31 March 2017 according to the contract and settlement statement provided. The purchase price was $55,000 plus adjustments. Ownership of the business by JMHAA from that date is not in dispute. The question is what business was owned and operated by the company from 4 September 2016 to 30 March 2017. The delegate also raised this question with Mr Jamshidi.
In response, Mr Jamshidi provided a submission to the delegate stating he began by developing a website to sell products online in conjunction with the then owner of Earth Espice Bulleen. He said he was assisted by an IT person he knew from Iran and that he was experimenting with best practice and refining the website from March 2016, which eventually went fully live in April 2017 by which time JMHAA owned the business.
The Tribunal is satisfied JMHAA owned and operated Earth Espice Bulleen from March 2016 first as an online supplier and then as the owner of the physical business and that ownership continues today.
Accordingly, the Tribunal is satisfied Mr Jamshidi did have and does have an ownership interest in Earth Espice Bulleen for at least two years immediately before the visa application was made, continued to have that interest at the time the visa application was made and continues to have that interest at the time of this decision.
Was each business relied on actively operating at all relevant times?
To meet cl.892.211(1) the Tribunal must be satisfied Earth Espice Bulleen was actively operating both at the time of making the visa application and during the two years immediately before. To meet cl.892.221(a) the applicant must continue to satisfy this requirement at the time of this decision.
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.[8]
[8] Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513 at [71].
The financial statements for JMHAA reveal the turnover and profitability of the business for the years ended 15 August 2018 and 15 August 2017, and subsequent financial years, as follows:
Sales Net profit 15 August 2017 52,420 979 15 August 2018 224,642 15,249 30 June 2019 122,622 651 30 June 2020 121,547 20,137 30 June 2021 108,639 14,312 30 June 2022 96,965 42,815
The Tribunal notes the profits for the 2020 to 2022 financial years were heavily reliant on government support relating to COVID-19 lockdowns, however this decision does not turn on that support. The BAS for the September and December 2022 quarters show increasing sales post-COVID-19 lockdowns.
It is clear from the above table Earth Espice Bulleen actively sought to generate business, in fact generated trade and custom and derived some financial gain for its activities during the first two years listed above and in all subsequent financial years.
Further, Earth Espice Bulleen operates from premises in suburban Melbourne selling products to local customers confirming it is a business in Australia.
Accordingly, the Tribunal is satisfied Earth Espice Bulleen was actively operating in Australia both at the time of making the visa application, during the two years immediately before and until the time of this decision.
Does each business relied on satisfy the ‘main business’ definition at all relevant points in time?
To satisfy the requirements of cl.892.211(1), the business or businesses relied on by the applicant must meet the ‘main business’ definition 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 reg 1.11 of the Regulations and is set out in full in the attachment to this decision. There are four elements to the definition, each of which must be satisfied for a business to be a main business.
Firstly, the applicant must have or have had an ownership interest in the business.
In considering this issue, the ownership interest does not need to be continuous or exist at a particular time considering similarly worded criteria in cls.845.213 and 845.221.[9] ‘Ownership interest’ is defined in s 134(10) of the Act.[10] If a beneficial interest is relied on for these purposes, certain evidentiary requirements must also be met: reg 1.11A. These provisions are set out in full in the attachment to this decision.[9] Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328 at [32].
[10] reg 1.03.
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.
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 business is not operated by a publicly listed company and the annual turnover of the business is at least AUD$400,000; 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 AUD$400,000; the value of the ownership interest must be at least 51% of the total value of the business.
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.[11]
[11] reg 1.03.
The Tribunal finds the first and third elements of the main business definition have been satisfied because it has already established JMHAA has owned and operated Earth Espice Bulleen since March 2016, and Mr Jamshidi has a 55% interest in JHMAA.
The second element is all about Mr Jamshidi having maintained direct and continuous involvement in management of Earth Espice Bulleen from day to day and in making decisions affecting the overall direction and performance of the business.
The movement records provided to the Tribunal show Mr Jamshidi was onshore for most of the two years immediately before the time of application. He was offshore during that two year for 77 days. The longest he has been offshore since then is 108 days from March to June 2022. He has been the sole director since registration. The business operates from single premises in suburban Melbourne and has an online presence. It employs the equivalent of one full time employee. Given these facts, the Tribunal is satisfied he 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. Mr Jamshidi is the business.
The Tribunal finds Earth Espice Bulleen is a qualifying business because it made, albeit modest profits from the sale of coffee, tea and associated café products, by trading with the public from commercial premises, and the balance sheets of JMHAA reveal no property, passive or speculative assets.
Accordingly, the Tribunal is satisfied Earth Espice Bulleen does meet the definition of main business at the time of application, during the two years immediately before and at the time of this decision.
Given the findings above, the Tribunal is satisfied that cl.892.211(1) and cl.892.221(a) in relation to cl.892.211, is met.
Australian Business Number and Business Activity Statements
Clause 892.211(2) must be satisfied as at the time of visa application. It requires for each business to which cl.892.211(1) applies:
(a)an Australian Business Number has been obtained, and
(b)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.
On 24 January 2023, the Tribunal conducted a search of the Australian Business Register on ABN 94 158 801 999 and confirmed the entity is KMHAA Pty. Ltd. The ABN has been current since 1 July 2016 and Goods & Service Tax registration has been current since 1 September 2016.
Having regard to these findings, the Tribunal is satisfied Mr Jamshidi satisfies cl.892.211(2)(a).
The Department File contains copies of the BAS for the quarters from September 2016 to June 2018 being the two years immediately before the time of application. Those copies have been printed from the BAS Agent Portal thereby confirming they had been lodged and they bear the certification of Esmaeil Lotfollahi, a Justice of the Peace, confirming they were produced before the time of application. On this basis, the Tribunal accepts the BAS were included in the application.
Given the findings above, the Tribunal is satisfied cl.892.211(2) is met and with that all of cl.892.211. The Tribunal has then considered cl.892.212.
Requirements relating to applicant’s assets and employment
Clause 892.212 requires the applicant to meet certain requirements broadly relating to their assets and employment in their business. If the appropriate regional authority has determined there are exceptional circumstances, this provision does not need to be met. There is no evidence before the Tribunal the appropriate regional authority has determined there are exceptional circumstances in this case. Therefore, at least two of the three criteria set out in subparagraphs (a), (b) and (c) must be met.
Mr Jamshidi has submitted the requirements concerning Australian employment, and net assets in the main business are met. He also asserts his net business and personal assets are sufficient. This decision considers (a) and (c).
Australian employment
In the 12 months ending immediately before the visa application was made cl.892.212(a) requires 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.
The post-hearing submissions include copies of payslips for employees of JMHAA covering the 12 months ended 4 September 2018. There are some anomalies in the payslips as the weekly pay cycle was not always maintained and the hours worked was not always shown requiring the Tribunal to make that calculation.
Notwithstanding the anomalies, the Tribunal is satisfied two employees during the test period, Mr Kaur and Mr Ranjan, between them worked in excess of 1,840 hours. The department file contains copies of their passports showing their nationality as Australian. Policy accepts full-time employment is at least 30 hours per week, which is 1,560 hours per annum.
Based on the above, the Tribunal is satisfied cl.892.212(a) is met.
Assets in main business
The application relied on financial statements for the years ended 30 June 2018 and 2017. These were later found to be incorrect and revised Financial Statements for the years ended 15 August 2018 and 2017 were provided. The Tribunal has considered the items shown on these balance sheets and concluded three items warrant further consideration, viz, prepayments, goodwill and a loan made by JHMAA to an associate. Otherwise, the balance sheet items are unremarkable.
The question is whether the net business assets achieved the required level over the relevant period.
At the time of visa application and in the 12 months immediately before the time of application, cl.892.212(c) requires 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 $75,000. Further, these assets must have been lawfully acquired. This was the criterion on which the delegate refused the application.
Considering lawfully acquired assets first, Mr Jamshidi was asked at the hearing how he acquired the funds he brought to Australia. He explained his father had started a Saipa dealership selling cars and providing after sales service and parts.[12] He and Mrs Shaker continued the business for 30 years and at one time they were the number one dealership in Iran. Profits he said were in the order of AUD$600,000 p.a.
[12] The Tribunal understands Saipa is a locally manufactured car in Iran.
He provided translated copies of taxation documents described as ‘Legal Entities Tax Assessment’ for the fiscal years ended 20 March 2010 and 2011. They show net income and tax payable as follows:
Fiscal year ended Net income (IRR) Tax payable (IRR) Net income (AUD) Tax payable (AUD) 20-03-2010 2,477,640,520 619,410,130 361,810 91,561 20-03-2011 6,710,807,391 1,677,701,847 953,807 238,452
The conversion from IRR to AUD was at 0.000114782 and 0.00014213 for each year end using commercially available foreign exchange rates. The results confirm the profitability of the business which provided the funds brought to Australia. Accordingly, the Tribunal accepts the funds Mr Jamshidi brought to Australia were lawfully acquired.
The original financial statements omitted a prepayment of $14,692 and incredibly, closing stock. The revised financial statements rectify these errors. The prepayment represents goods purchased with cash in Iran by Mr Jamshidi. He said he paid for the goods just before balance date and received them just after balance date hence a prepayment arises, and he failed to advise his accountant of this transaction. A transaction of this nature, especially involving cash, may be common or even necessary in Iran. It is not usual in Australia unless the trader is operating in the so-called cash economy. The stock amounts are in proportion to the sales and supported by physical stock take lists at each balance date. The Tribunal accepts the prepayment and stock amounts are legitimate assets.
The contract for the purchase of Earth Espice Bulleen records no apportionment of the purchase price as between tangible and intangible assets. The accountant recorded the full purchase price as goodwill, which appears as an asset on the balance sheet, notwithstanding a list of plant and equipment was included in the contract and the carrying value of goodwill may be overstated as a result. If so, there would be an asset for plant and equipment albeit subject to depreciation, together with an asset for goodwill. The Tribunal has no evidence of an appropriate apportionment of the purchase price, which it accepts is unlikely to be material to the value of net assets.
The accountant provided a letter dated 27 February 2023 asserting no impairment of the carrying value of goodwill was warranted as sales and profitability had increased since 31 March 2017, which is consistent with the financial statements. As the Tribunal is assessing the net business assets at time of application and for the 12 months before, it accepts no impairment of goodwill is warranted at that time.
Department policy suggests loans to related parties are to be excluded from the calculation of net business assets unless they are secured and subject to a written loan agreement. There are balances described as such on the balance sheets and there is no evidence they are secured and subject to a written loan agreement. Accordingly, those balances have been added back in the table below.
On 15 August 2018 and 2017, the net assets as adjusted, are as follows:
15-08-2018 15-08-2017 Net assets per balance sheet 106,226 90,978 Less: Loan to an associate 5,228 2,250 Adjusted net assets 100,998 88,458 Applicant’s share (85%) 85,848 75,189
The Tribunal finds cl.892.212(c) is met because the adjusted net assets of Earth Espice Bulleen exceed $75,000 at both 15 August 2018 and 15 August 2017 and the funds brought to Australia were lawfully acquired.
Given the findings above, the Tribunal then finds cl.892.212 is met because sub-clauses (a) and (c) are satisfied and so there is no utility is considering cl.892.212(b). The Tribunal has then considered cl.892.213.
Business turnover
To satisfy cl.892.213, either of sub-clauses (2) or (3) must be met. Clause 892.213(2) requires the applicant’s main business in Australia, or main businesses in Australia together, had an annual turnover of at least $200,000 in the 12 months immediately before the application was made.
The Tribunal is satisfied cl.892.213(2) is met because JMHAA reported sales of $224,642 for the 12 months ended 15 August 2018 which is within three months of the date of application as contemplated by departmental policy. The Tribunal has then considered cl.892.214.
Business activities
At the time of the visa application, cl.892.214 requires neither the applicant nor his or her spouse or de facto partner (if any) has a history of involvement in business activities of a nature not generally acceptable in Australia and cl.892.221(a) requires the Applicant continues to satisfy cl.892.214 at the time of this decision.
The courts have concluded a history of involvement in business activities means an elaborate, prolonged and consistent period of conduct in activities which are likely to be offensive to a large section of the Australian population.[13]
[13] Lee v Minister for Immigration and Citizenship [2009] FCA 977, [39].
Departmental policy set out in GenGuide M says this criterion should generally not be considered satisfied if the applicant, and or their spouse or de facto partner, has been involved in business activities or business practices that are:
·outside the generally accepted social or cultural norms of most persons in Australia; or
·likely to be offensive to large segments of the Australian community; or
·otherwise likely to give rise to controversy were the applicant to enter Australia as the holder of a Business Skills Class of visa.
Some examples of business activities or practices that may not be considered acceptable include:
·contravention of government laws (for example, quarantine or tax evasion).
·criminal convictions relating to business activities.
·serious disregard of industry, licensing and regulations.
·fraudulent trade practices.
·Foreign Investment Review Board violations.
·not providing ‘fair pay’ for employment.
The unacceptable business activity or practice should be more than a minor, one-off event for such activities or practices to constitute ‘a history’.
The history of Mr Jamshidi is that JMHAA has lodged with the ATO and paid all necessary BAS and income tax returns at all relevant times. There is no evidence before the Tribunal to indicate he and or Mrs Shaker have any history of involvement in business activities of a nature generally not acceptable in Australia either at the time of application or at the time of decision, notwithstanding the cash transaction for goods purchased in August 2018.
Given the findings above, the Tribunal is satisfied cl.892.214 is met and Mr Jamshidi continues to satisfy this criterion at the time of this decision. Accordingly, the Tribunal is satisfied cl.892.221(a) is met as it has previously found cl.892.211 has continued to be met throughout the period to the time of this decision.
The Tribunal will remit the matter to the Minister. The secondary visa Applicants are remitted for reconsideration by the Department based on the outcome of the application by Mr Jamshidi.
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 visa:
cl.892.211, cl.892.212, cl.892.213, cl.892.214 and cl.892.221 of Schedule 2 to the Regulations
Peter Ranson
Member
| Date of hearing: | 25 January 2023 |
| Type of hearing: | Teams video |
| Solicitors for the Applicant: | Mr Navid Baghi |
| Amity Lawyers | |
| Interpreter: | Persian and English languages |
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
Cancellation of business visas
….
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.
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