Kiris (Migration)

[2023] AATA 803

Kiris (Migration) [2023] AATA 803 (5 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nilgun Kiris
Mr Vala Serdar Kiris
Mr Can Kiris

REPRESENTATIVE:  Ms Agnes Kemenes

CASE NUMBER:  1926550

HOME AFFAIRS REFERENCE(S):          BCC2018/1947939, BCC2018/3956151

MEMBER:K. Chapman

DATE:5 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Business Skills (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 188 visa:

·cl.188.222 of Schedule 2 to the Regulations.

Statement made on 05 January 2023 at 8:43am

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – ‘points test’ criterion – Business experience qualifications – direct and continuous involvement in management – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.11; Schedule 2, cl 188.222

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 Home Affairs, on 4 September 2019, to refuse to grant the applicants Business Skills (Provisional) Subclass 188 visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’). This is a points based visa designed for skilled applicants, who have submitted an expression of interest and received an invitation to apply.

2. The first named applicant, Mrs Nilgun Kiris, was invited to apply for the visa on 26 April 2018. She so applied on 4 May 2018, including the second and third named applicants in the application. The delegate refused to grant the visa on the basis that the points test in cl 188.222 was not satisfied by the first named applicant (hereafter ‘the applicant’). On 20 September 2019, the applicant applied to the Tribunal for review of the visa refusal decision. She submitted a copy of the delegate’s decision with her application for review.

3. On 28 July 2022, the Tribunal wrote to the applicant, pursuant to subsection 359(2) of the Act, inviting her to provide information to support her claim to satisfy the points test in cl 188.222. In response, the applicant submitted material including, but not limited to, written submissions, financial reports, commercial invoicing information, statement of the applicant, organisational chart and corporate governance documentation. All submitted material has been duly considered by the Tribunal.

4. The applicant appeared by video conference before the Tribunal on 6 October 2022 to give evidence and present arguments. She confirmed she was comfortable participating in the hearing by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. The applicant confirmed she understood the interpreting service. The applicant was represented by her solicitor (‘the representative’) who attended the review hearing by video and was permitted to make submissions.

5. The Tribunal afforded the applicant the opportunity to lodge post-hearing material until 10 November 2022. By that date final submissions were received including supplementary written submissions, Statements of Assets and Liabilities Position (SALP), educational records, share registration certificate, Statutory Declaration of the applicant and correspondence from Migration Queensland dated 3 November 2022. All material received has been duly considered by the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present matter is whether the applicant satisfies the points test criterion which requires that her score, when assessed in relation to the business innovation and investment points test, is not less than the score prescribed by the Minister in an instrument in writing. The relevant instrument is IMMI 12/041, with the required minimum number of points being 65. The delegate determined that the applicant was entitled to only 55 points. In the present matter, the applicant makes claims in relation to one ‘main business’, Kiris Limited, for the purposes of the points test. At the time of this decision, she claims 65 points.  

8. For the reasons outlined below, on balance, the Tribunal is satisfied that the applicant is entitled to 65 points. Therefore, she satisfies the requirements of cl 188.222.

   Part 7A.2 - Age qualifications

9. Points are available under this Part if the applicant was aged between 18 and 55 years at the time of invitation to apply for the visa.

10. At the time of invitation, the applicant was aged 52 years. Therefore, the applicant is entitled to 15 points under this Part.

    Part 7A.3 – English language qualifications

11. Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa.

12. The applicant makes no claims under this Part and accordingly she is not entitled to any points respectively.

    Part 7A.4 – Educational qualifications

13. An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard.

14. The applicant’s educational qualifications were canvassed in detail during the review hearing. Ultimately, the applicant makes no claims under this Part and accordingly she is not entitled to any points respectively.

    Part 7A.5 – Business experience qualifications – Business Innovation stream

15. Points are available under this Part for applicants who have held one or more main businesses for not less than 4 years in the 5 years immediately before the time of invitation to apply for the visa, or not less than 7 years in the 8 years immediately before the time of invitation to apply for the visa. The time of invitation for the visa, in the present matter, was 26 April 2018.

16. The applicant initially claimed points for business experience of not less than 7 years in the 8 years immediately before the time of invitation to apply for the visa. She subsequently revised this claim during the review, with the guidance of the representative, to seek points for business experience of not less than 4 years in the 5 years immediately before the time of invitation to apply for the visa. The applicant relies upon one ‘main business’ in relation to the visa application, Kiris Limited. This business is located in Turkey and operates restaurants.

17. The delegate awarded no points to the applicant for business experience. This was because, in their view, the applicant failed to submit sufficient evidence of her direct and continuous involvement in management of the main business, from day to day and in making decisions affecting the overall direction and performance of the business, at the relevant time. The delegate placed little weight on the significant documentary evidence submitted by the applicant in support of her claim to have been directly involved in the management of Kiris Limited for many years. For example, somewhat curiously, the delegate gave ‘little weight’ to the submitted organisational chart as it ‘is not an independently issued third-party document.’

18. At the review hearing, the Tribunal canvassed in detail the applicant’s business experience. It is apparent she has significant experience in the restaurant industry through her involvement in Kiris Limited in Turkey. The applicant explained to the Tribunal that her father in law ran a restaurant business for many years in Turkey before transferring it to his son (the applicant’s husband who is the second named applicant) in 1994. The applicant took an initial share holding in Kiris Limited in 1996 (the submitted share certificate confirms the date to be 13 December 1996). According to the applicant, she became increasingly involved in the management of the restaurant operated by Kiris Limited in the years following 1996. By 2008, the applicant became the primary manager of the restaurant. This allowed her husband, the second named applicant, to turn his attention to other business interests. In due course, the second named applicant’s main focus was to conduct business activities relating to the provision of student accommodation. At the time of the review hearing, this student accommodation business had grown to include possession of a forty eight story property for the provision of accommodation.

19. The applicant explained to the Tribunal that Kiris Limited grew in scale under her management, with the acquisition of a second restaurant in 2009 and a third in 2013. The Tribunal canvassed with the applicant her duties with Kiris Limited in some detail. She explained her duties, in a comprehensive manner, to include human resource management, financial record keeping, advertising, oversight of restaurant hygiene and quality assurance of the menu items. By 2017, the applicant had an increased share holding in Kiris Limited to reflect her role as the primary executive manager. At the time of invitation for the visa, the applicant and her husband each held fifty percent of the shareholding in Kiris Limited (the submitted share certificate dated 2 August 2017 confirms this disposition). The delegate accepted this ownership interest of the applicant in Kiris Limited, as does the Tribunal. Likewise, as outlined below, the delegate accepted the annual turnover of the main business exceeded AUD 500,000 in at least two of the four fiscal years immediately before the time of invitation to apply for the visa, as does the Tribunal.

20. The Tribunal has carefully considered the provisions of reg 1.11, in relation to whether the applicant held one or more main businesses at the time of invitation for the visa. Aside from having an ownership interest and sufficient business turnover at the relevant time (which is accepted by the Tribunal), the applicant must demonstrate that she ‘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.’ The Tribunal notes it was impressed by the manner in which the applicant provided her evidence at the review hearing. She answered the Tribunal’s detailed questions in a direct and fulsome manner, without obfuscation. Accordingly, the Tribunal accepts the applicant’s evidence that she was increasingly involved in the management of Kiris Limited from 1996, particularly since 2008. Indeed, it is apparent to the Tribunal that the applicant has many years of experience managing the restaurant interests of Kiris Limited in Turkey.

21. The Tribunal notes the claims of the applicant pertaining to her management involvement in Kiris Limited are supported by documentary evidence including financial statements, corporate governance material (such as Minutes of the directors), commercial invoicing and statements (including from her business Accountant). At the time of this decision, she claims to have held one main business for not less than 4 years in the 5 years immediately before the time of invitation to apply for the visa. The applicant, upon advice, has confined her claim to this date range given the effluxion of time since she was invited to apply for the visa and the associated difficulty in providing supporting documentation prior to 2014. On balance, the Tribunal considers this claim to be somewhat conservative given the depth of detail provided by the applicant in her evidence at the review hearing. In any event, it is apparent to the Tribunal that the evidence at hearing, in combination with the submitted documentary evidence, clearly demonstrates the applicant held one main business for not less than 4 years in the 5 years immediately before the time of invitation to apply for the visa. The Tribunal so finds.

22. Therefore, the Tribunal is satisfied that the applicant is entitled to 10 points under this Part.

    Part 7A.7 – Financial asset qualifications

23. Points may be awarded under this Part if the net value of the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, was not less than AUD 800,000 to not less than AUD 2,250,000 in each of the two fiscal years immediately before the time of invitation to apply for the visa.

24. At the time of application for the visa, the applicant claimed business and personal assets of not less than AUD 2,250,000 in each of the two fiscal years immediately before the time of invitation to apply for the visa. She provided documentary evidence such as real property deeds, real property valuations, business financial reports, shareholding certificates and Statements of Assets and Liabilities Position (SALP). The applicant also confirmed her asset holdings at the review hearing.

25. The applicant’s claim regarding assets was accepted by the delegate and 35 points were awarded at the time of the primary decision. Having regard to the documentary material and evidence at hearing, the Tribunal is satisfied the applicant held business and personal assets of not less than AUD 2,250,000 in each of the two fiscal years immediately before the time of invitation to apply for the visa. The Tribunal so finds.

26. Accordingly, as with the delegate, the Tribunal is satisfied that the applicant is entitled to 35 points under this Part.  

    Part 7A.8 – Business turnover qualifications

27. Points may be awarded under this Part if the applicant had an ownership interest in one or more main businesses that had an annual turnover of not less than AUD 500,00 to not less than AUD 2,0000 in at least two of the four years immediately before the time of invitation to apply for the visa.

28. The Tribunal accepts the applicant’s ownership interest in the main business at the relevant times, as did the delegate. Having regard to the submitted evidence, the Tribunal is satisfied that the main business had an annual turnover of not less than AUD 500,000 and less than AUD 1,000,000 in at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa. The Tribunal so finds.

29. Accordingly, as with the delegate, the Tribunal is satisfied that the applicant is entitled to 5 points under this Part.

    Part 7A.9 – Business innovation qualifications

30. Points are available under this Part for applicants whose main business has registered patents, designs, or trade marks within certain time periods, or whose main business derived certain annual turnover from export trade, or whose main business demonstrated certain growth levels over a specified time, or whose main business entered into certain types of joint venture agreements or had qualified for certain government grants.

31. The applicant makes no claims under this Part and accordingly she is not entitled to any points respectively.

    Part 7A.10 – Special endorsement qualifications

32. Ten points may be awarded under this Part if the nominating State or Territory government agency had determined, at the time of invitation to apply for the visa, that the business proposed by the applicant was of unique and important benefit to the State or Territory where the nominating government agency is located. 

33. The applicant makes no claims under this Part and accordingly she is not entitled to any points respectively.

    Conclusion on points

34. Based on the above assessment, having regard to the applicable legislation, the number of points to be awarded to the applicant under Schedule 7A is:

    7A.2 - Age  15 points

    7A.3 - English language  0 points

    7A.4 – Educational  0 points

    7A.5 – Business experience  10 points

    7A.7 – Financial assets  35 points

    7A.8 – Business turnover  5 points

    7A.9 – Business innovation  0 points

    7A.10 – Special endorsement  0 points

    Total points  65 points

35. The applicant’s assessed score under the points system is, therefore, 65 points.

36. At the time of application for the visa, the pass mark was 65 points: IMMI 12/041. The applicant has, therefore, successfully achieved the qualifying score to pass the points test. It follows that the applicant satisfies cl 188.222. The Tribunal so finds.

    CONCLUSION

37. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for Subclass 188 visas.

38. The Tribunal notes that as the second and third named applicants applied for visas on the basis of being a member of the family unit of the applicant, their outcomes will be determined by reference to the result of the latter’s application on remittal to the Department for reconsideration.

    DECISION

39. The Tribunal remits the application for Business Skills (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 188 visa:

    ·cl.188.222 of Schedule 2 to the Regulations.

    K. Chapman
    Member