Li (Migration)

[2020] AATA 1205

Li (Migration) [2020] AATA 1205 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Li LI

Weichen YU

Yuanting YU

Zixuan YU

CASE NUMBER:  1729191

HOME AFFAIRS REFERENCE(S):                 BCC2016/2805402

MEMBERS:I Berry (Presiding), P Ranson

DATE:14 April 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the visa Applicants Business Skills (Residence) (Class DF) visas.

Statement made on 14 April 2020 at 1:41pm

Statement made on 14 April 2020 at 4:42pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – history of involvement in unacceptable business activities – underpayment of staff – ownership interest in main business – two nominated businesses – active operation – satisfying the definition of ‘main business’ at all relevant points in time – maintaining direct and continuous involvement – shareholder and director – no day-to-day involvement in the operations or management of the first business – commencement of ownership interest – purchased business – settlement date of second business – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134
Migration Regulations 1994 (Cth), rr 1.11, 1.11A; Schedule 2, cls 890.211, 890.216

CASES
Rahbarinejad v Minister for Immigration & Border Protection [2018] FCCA 2293
Zhou v MIMIA [2003] FMCA 169

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 13 November 2017 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 18 August 2016. The application period is the two years immediately before the application is made, i.e. 18 August 2014 to 17 August 2016 (the Application Period).

3. At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor). The Applicants in this case are seeking to satisfy the criteria for the grant of Subclass 890 (Business Owner) visas, as set out in Part 890 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 890.2. The others need only to satisfy the secondary criteria set out in Subdivision 890.3.

4. The delegate in this case refused to grant the visas on the basis the first named visa Applicant (the Applicant) did not satisfy the requirements of cl.890.216 of Schedule 2 to the Regulations because of the involvement of the Applicant in another business, which was prosecuted for breaching Australia’s industrial relations laws by underpaying certain staff.

5. The Applicant appeared before the Tribunal on 5 December 2019 to give evidence and present arguments. The Applicant was represented in relation to the review by Ms Karen Wong (the Representative) who attended the Tribunal hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. As mentioned above, the delegate in this case refused to grant the visas on the basis the Applicant engaged in business conduct not acceptable in Australia. The Applicant had invested in another company, Vipper Pty Ltd (ACN 098 124 522) (Vipper), which was prosecuted for underpaying its employees. Vipper operated a convenience store in Brisbane and the Applicant was a director of Vipper at the time. The delegate found the Applicant, as a director of Vipper, was effectively complicit in the underpayment of wages and benefits and held that to be engaging in business conduct not acceptable in Australia. Before testing the contention the Applicant engaged in business conduct not acceptable in Australia it is necessary to firstly determine whether the main business test has been met.

Ownership interest in main business

1. Clause 890.211(1) requires 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[1].

   [1] cl.890.221(a)

2. No more than two businesses can be nominated for this purpose (r.1.11(2)) and 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.[2]

   [2] Yang v Minister for Immigration and Border Protection [2014] FCCA 1576.

3. It is important to note at this point case law has established a business is not a legal entity but rather an enterprise or undertaking. It is therefore important for the Tribunal to identify the business or businesses 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.

4. The businesses relied on by the Applicant to satisfy these requirements are supermarkets known as ‘Veggie Heaven’ purchased on 16 November 2014 (Veggie Heaven) and her interest in a 7-Eleven business operated by Vipper (the 7-Eleven Business). The Applicant commented at the Hearing she initially invested in Vipper for the purpose of her visa application. Veggie Heaven and the 7-Eleven Business were owned by LNV Trading Pty Ltd (ACN 162 690 100) (LNV) and Vipper respectively. The Tribunal notes the form 1217 lodged with the application recorded at item 13 under heading ‘Main business 1’ in answer to the question ‘What was/is the major activity of this business?’ only the word ‘Supermarket’.

5. The Applicant briefly had a seafood import business, which she asserted was conducted from about April 2013 to January 2014, (the Seafood Business). The Tribunal notes the form 1217 lodged with the application did not mention the Seafood Business.

6. The Applicant provided a copy of the business activity statement (BAS) for LNV for the quarter ended 30 September 2014, which the Tribunal notes is prior to the settlement date for Veggie Heaven, and which shows sales of $55,978 with no applicable GST and purchases of $54,016 with no input credits claimed. The Applicant was asked at the Hearing if these transactions were for the Seafood Business and she initially said they were; then retracted that statement instead referring the question to her accountant, which she did and the accountant refused to cooperate. In any event, the documentation in relation to the Seafood Business provided by the Applicant post-Hearing reveals the activity commenced in March 2013 and concluded in August 2013.

7. In Rahbarinejad[3], the court held the Tribunal had to look beyond the obvious in deciding which business or businesses were nominated by the Applicant. As mentioned above, no mention was made on the Form 1217 of the Seafood Business however it was mentioned at the Hearing and so the Tribunal considered whether it could be counted as a main business for the purpose of the Application. Notwithstanding the findings in Rahbarinejad the Tribunal finds the Seafood Business concluded around August 2013, and not January 2014 as asserted by the Applicant. In any event, the Seafood Business concluded well before the Application Period and so cannot be counted as a main business for the purpose of the Application.

   [3] Rahbarinejad v Minister for Immigration & Border Protection BC201807374

8. Accordingly, the Tribunal must consider the nature of the Applicant’s interest in these businesses, whether the businesses were actively operating and whether they meet the definition of ‘main business’ during the Application Period 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.890.211(1).

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

9. An ‘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.[4]

   [4] r.1.03 of the Regulations and s.134(10) of the Act.

10. 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.[5]

    [5] r.1.11A(1).

11. In order to meet cl.890.211(1) the Tribunal must be satisfied the Applicant had an interest of this kind in the relevant business or businesses both at the time of making that application and during the Application Period. In order to meet cl.890.221 the Tribunal must be satisfied the Applicant continues to satisfy this requirement at the time of this decision.

    LNV Trading Pty Ltd

12. LNV was registered with the Australian Securities & Investments Commission (ASIC) on 5 March 2013. The Applicant was appointed the sole director on registration and the holder of 100 fully paid ordinary shares in the company, being 100% of the issued capital. The Tribunal has obtained a recent historical search of the records of ASIC and confirmed the Applicant remains the current sole director and shareholder of the company and the holder of 100% of the issued capital.

13. Accordingly, the Tribunal is satisfied the Applicant did have and does have an ownership interest in LNV at all relevant points in time because she has held 100% interest in LNV since it was registered on 5 March 2013.

    Vipper

14. Vipper was registered with ASIC on 11 September 2001. The Applicant was appointed a director on 29 November 2011 and for an investment of $100,000 became the holder of 60 fully paid ordinary shares in the company, being 30% of the issued capital. The Applicant advised the Tribunal at the Hearing she ceased to be a director of Vipper around October 2015 and her investment of $100,000 was fully repaid.

15. Accordingly, the Tribunal is satisfied the Applicant did have an ownership interest in Vipper from 29 November 2011 until October 2015.

16. The Tribunal further finds the Applicant did have an ownership interest in Veggie Heaven from 16 November 2014 to date and the 7-Eleven Business from 29 November 2011 until October 2015 by virtue of her holdings in LNV and Vipper respectively.

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

17. In order to meet cl.890.211(1) the Tribunal must be satisfied the relevant business or businesses were actively operating both at the time of making the visa application and during the two years immediately before. In order to meet cl.890.221(a) the Applicant must continue to satisfy this requirement at the time of this decision.

18. 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 businesses exhibited activity of a ‘repetitive, continuous and permanent character’ at the relevant times, in which the businesses actively sought to generate business, in fact generated trade and custom and derived some financial gain for their activities in the relevant period.[6]

    Was Veggie Heaven actively operating?

    [6] Shahpari v Minister for Border Protection [2016] FCCA 513 at [71].

19. The Tribunal notes the contract for the purchase of Veggie Heaven by LNV recorded a business name ‘Soorya Veggie Heaven’[7] at Shop 8, 183 Kruger Parade, Redbank Plains QLD 4301. A search of the business name records at ASIC reveals a similar business name ‘Soorya Veggie Heaven Island Foods’ was registered on 28 January 2009 and cancelled on 26 May 2012, which is over two years before the contract was signed. The Tribunal checked the ABN registration for LNV, which revealed a business name ‘Fresh Veggie Heaven’ associated with the ABN. However, a search of ASIC records could find no such business name registration. ABN is the initialisation of Australian Business Number.

    [7] Contract dated 20 September 2014.

20. The evidence before the Tribunal is both Veggie Heaven and the 7-Eleven businesses were open to the public seven days per week from their respective premises. The BAS provided with the application for LNV for the seven quarters from December 2014 to June 2016 revealed the turnover for Veggie Heaven was in excess of $2.7 million.

21. The Tribunal is satisfied Veggie Heaven exhibited activity of a ‘repetitive, continuous and permanent character’, in which it actively sought to generate business, in fact generated trade and custom and derived substantial financial gain for its activities in the period 16 November 2014 to date.

    Was the 7-Eleven Business actively operating?

22. The Applicant did not provide any financial statements, income tax returns or BAS for Vipper. As mentioned above the Applicant was asked to identify her business activities prior to acquiring Veggie Heaven and she referred to the Seafood Business and the 7-Eleven Business. As discussed above, the Seafood Business cannot qualify as a main business because it was concluded approximately one year prior to the commencement of the Application Period.

23. The Applicant asserted at the Hearing she was advised in October 2015 by her then migration agent, who she said was also the accountant for Vipper, the company had a wages problem and she should exit the company forthwith. She says she then resigned as a director and her investment of $100,000 was returned to her. She was unclear as to how the shares she held in Vipper were transferred away from her.

24. In the absence of financial statements, income tax returns or BAS for Vipper it is impossible for the Tribunal to make an accurate assessment as to whether the company was actively operating at all relevant times. That said, as a convenience store a 7-Eleven Business in the capital city CBD is known to be open 24 hours per day seven days per week.

25. The Tribunal has no reason not to be satisfied the 7-Eleven Business exhibited activity of a ‘repetitive, continuous and permanent character’ at the relevant times, in which it actively sought to generate business, in fact generated trade and custom and derived substantial financial gain for its activities in the relevant period, which for the Applicant was March 2013 to October 2015.

26. Accordingly, the Tribunal is satisfied Veggie Heaven was and is actively operating from 16 November 2014 to date and the 7-Eleven Business was actively operating, insofar as the Applicant is concerned, from March 2013 to October 2015.

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

27. In order to satisfy the requirements of cl.890.211(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 890.221 requires 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 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.

28. 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.[8] If a beneficial interest is relied on for these purposes, certain evidentiary requirements must also be met.[9] These provisions are set out in full in the attachment to this decision.

    [8] r.1.03.

    [9] r.1.11A.

29. 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.

30. 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:

    (a)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;

    (b)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;

    (c)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.

31. Finally, the business must be a qualifying business. ‘Qualifying business’ is defined as an enterprise 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.[10]

    [10] r.1.03.

32. Before discussing the Applicant’s ownership interest in the nominated businesses and whether they are qualifying businesses for the purpose of cl.890.211(1), the Tribunal will first consider whether the Applicant maintained direct and continuous involvement in management of the nominated businesses from day to day and in making decisions affecting the overall direction and performance of the businesses.

    Maintaining direct and continuous involvement – the 7-Eleven Business

33. The Applicant was asked at the Hearing whether her investment in the 7-Eleven Business operated by Vipper had been intended to be used for her visa application. Her response was initially she had intended her investment in Vipper to be used for that purpose. The Applicant was then asked to describe her day-to-day involvement in the 7-Eleven Business. She advised she frequently asked her then migration agent when she would get involved in the day-to-day activities of the 7-Eleven Business however that never happened. She asserted her then migration agent would advise her to: ‘just wait and all would be okay’. In any event her response to the direct question: ‘Did you work day-to-day at the 7-Eleven Business?’ the Applicant answered: ‘No’. The Applicant advised she never actually worked in the store from which the 7-Eleven Business was conducted and was not involved in its day-to-day operations whatsoever or in any management decisions. In answer to another direct question: ‘Did you ever attend the shop and serve customers?’ she answered: ‘No’.

34. Notwithstanding the Applicant was both a shareholder and director of Vipper from March 2013 until October 2015, the Tribunal concludes the Applicant had no day-to-day involvement in the operations or management of the 7-Eleven Business operated by Vipper at any time when she was a shareholder and director of the company.

35. Accordingly, the Tribunal is not satisfied the 7-Eleven Business meets the definition of main business at all relevant points in time. The Tribunal notes if the Applicant had been actively involved in the day-to-day operations and management of the 7-Eleven Business her involvement may not have met the criteria in cl.890.216 as the delegate found when her visa application was assessed by the Department.

    Maintaining direct and continuous involvement - Veggie Heaven

36. Regarding Veggie Heaven, the Applicant advised at the Hearing the shop was open from 7:30 AM to 7:30 PM seven days per week. She advised she personally opened the shop three or four days each week and on the other days the shop was opened by her husband or on rare occasions by a staff member. The shop is closed each evening either by the Applicant or by her husband both of whom have a set of keys.

37. The Applicant advised the purchasing of stock for the business was attended to by either her husband or her from a wholesaler in Eight Mile Plains and from regular vendors. The Veggie Heaven business also operates a takeaway food business as well as a money exchange. The money exchange she said was either through Western Union or Pacific Way.

1. In answer to the question as to how the banking of cash sales was attended to and by whom, the Applicant advised banking usually occurred fortnightly as the cash received from sales was used in the money exchange business. When banking was necessary it was done by the Applicant or her husband.

2. The Tribunal noted the wages expense for the business had increased in recent years. The Applicant advised she was spending less time in the Veggie Heaven business in order to look after her teenage children. She went on to say she still attends the shop from Monday to Friday for at least four hours each day and all day on Saturday and Sunday.

3. Accordingly, the Tribunal is satisfied Veggie Heaven meets the definition of main business from 16 November 2014 to date. As the Application Period is 18 August 2014 to 17 August 2016 that leaves the period from 18 August 2014 to 15 November 2014 (the Intervening Period). As the 7-Eleven Business does not qualify as a main business for the reasons discussed above, the Applicant was asked what activities occurred during the Intervening Period.

4. She asserted the preparatory work she did in selecting Veggie Heaven as a business for LNV to buy, negotiating with the vendor and negotiating with the landlord of the premises prior to settlement was done during the Intervening Period and should be included in the period of her ownership interest. The Tribunal then considered her ownership interest in Veggie Heaven.

   Ownership interest in each business

5. It is clear to the Tribunal the Applicant held a relevant ownership interest in the 7-Eleven Business conducted by Vipper from March 2013 until October 2015. However, for the reasons discussed above the 7-Eleven Business doesn’t qualify as a main business. The question of ownership interest then rests with Veggie Heaven operated by LNV.

6. The Tribunal has previously established the Applicant holds a 100% interest in LNV and has done so continuously since incorporation on 5 March 2013. Remembering a business is separate to the entity that owns it, the businesses conducted by LNV are the Seafood Business, which has already been excluded as a nominated business, and Veggie Heaven.

7. Whilst the Tribunal is satisfied Veggie Heaven satisfies the main business test from settlement on 16 November 2014 to date, the difficulty for the Applicant is satisfying the main business test for the Intervening Period.

8. In Zhou the court discussed the issue of when a business, which is purchased, commences, that is, does it commence when settlement occurs or at an earlier time.[11] The Tribunal notes the contract to purchase Veggie Heaven was entered into by LNV on 20 September 2014 and the Application Period runs from 18 August 2014 to 17 August 2016, that is, the contract was entered into fully one month into the Application Period.

   [11] Zhou v MIMIA [2003] FMCA 169

9. The Applicant asserts she commenced looking for a business to purchase in June 2014 and began negotiating with the vendor of Veggie Heaven and the landlord of the premises from which Veggie Heaven operated culminating in the signing of the contract to purchase dated 20 September 2014. The Applicant went on to advise it took three months to negotiate the lease agreement. She stated whilst the landlord had no objection as such to her as the proposed lessee, negotiations were conducted via the letting agent as the landlord was resident in Hong Kong.

10. Returning to Zhou, the court agreed with earlier findings of the Migration Review Tribunal, now the Administrative Appeals Tribunal, the ownership interest of the Applicant in the nominated business commenced on the day the Applicant took control of the business, that is, the date on which the Applicant paid the balance of purchase monies and became entitled to possession of the business and its profits.

11. Further, the Tribunal did not accept the submission of the Applicant in Zhou that the Applicant should somehow be deemed to have acquired an ownership interest in the business at a date earlier than the settlement date on the basis of time spent by the Applicant from the time the offer to purchase was made for the business and that he acquired an economic interest in the business by activities conducted prior to settlement, which were necessary to bring about settlement. As stated above the Tribunal found, and the court agreed, the Applicant did not become the proprietor of the business until the settlement date fixed by the contract being the date on which the balance of the purchase price was paid.

12. In Zhou, the Applicant argued ownership interest could be satisfied by ‘substantial compliance’ with the relevant criterion. The court confirmed there is no room for a concept of ‘substantial compliance’ in determining whether criteria are met.

Submission of 17 March 2020

1. On 10 March 2020 the Tribunal wrote to the Applicant setting out her obligations under Australian taxation and corporate law to retain business records for certain periods. In that letter, the Applicant was requested to explain the basis of the preparation of the BAS for LNV for the quarter ended 30 September 2014 and the nature of the activity of LNV prior to the settlement of the purchase of Veggie Heaven on 16 November 2014. The Tribunal considers the Applicant would have been able to provide that explanation had she retained the business records for the requisite periods. The letter explained to the Applicant that this information would, subject to her comments or responses, be the reason, or part of the reason, for affirming the decisions under review.

2. The Applicant requested additional time to respond and an extension to 31 March 2020 was granted. The Applicant’s response was received on 30 March 2020 and included the following:

   (a)Submission from the Representative dated 30 March 2020;

   (b)Letter from ANG Consulting Group Pty Ltd dated 16 March 2020, who identify themselves as currently acting as tax agent and accountants for LNV;

   (c)E-mail dated 18 June 2014 to the Applicant from Qingdao Crossea International Ltd;

   (d)E-mail dated 27 June 2014 to the Applicant from Zhejiang Zhoufu Food Co., Ltd;

   (e)E-mail dated 14 August 2014 to the Applicant from Rizhao Huanhai Aquatic Products Co., Ltd attaching a sales contract dated 13 August 2014; and

   (f)Bundle of e-mails dated from 5 May 2014, 14 June 2014, 23 July 2014, 29 July 2014, 14 August 2014 and 3 September 2014 to the Applicant from Zhejiang Zhoufu Food Co., Ltd.

3. Translations of documents not in English were received on 1 April 2020. The translations were appropriately certified, and the Tribunal has considered them.

4. The Representative’s submission of 30 March 2020, paragraph 57(a) above, asserts LNV was in the ‘trading business’ from May 2014 to September 2014. Given the nature of the e-mail exchanges set out above the Tribunal assumes the reference to trading business is intended to be a reference to seafood trading, which the Tribunal notes was previously conducted by LNV from March to August 2013 as discussed above. The submission also refers to the accountant’s letter of 16 March 2020, which advises the previous accountant for LNV asserts they are unable to retrieve the information used for the preparation of the BAS for the quarter ended 30 September 2014. The submission concludes with statements that LNV has a valid ABN and has lodged all BAS as required for the Subclass 890 visa application.

5. As mentioned above, the Tribunal’s letter of 10 March 2020 set out the requirements under Australian taxation and corporate law for the retention of business records. It is no defence for the Applicant to assert she relied on her accountants from time to time to retain those records. They may well have done so however they are not the party with the obligation. It is the company, that is, LNV, which has the obligation to retain the records.

6. The accountant’s letter, paragraph 57(b) above, states: ‘The previous accountant advised that they are unable to retrieve relevant information in the work was prepared over five years ago. However, this is very likely that the figures in total sales G1 and noncapital purchases G 11 were related to some seafood sales and purchases respectfully [sic – respectively].’ The letter goes on to comment that it may be a careless omission for no GST sales to be shown at label G2 incident export sales at label G3 however this is irrelevant as there is no GST on sales or input credits shown on BAS for September 2014.

7. The Tribunal notes the amounts shown for sales and purchases in the September 2014 BAS, whilst not the same, are very similar to the amounts shown in the BAS for June 2013 and September 2013. Further, as discussed below the exchange of emails concerning the ‘trading business’ do not include any purchase or sales documentation at all and the likely answer is the information used to prepare the BAS for June 2013 and September 2013 was modified and used in preparation of the BAS for September 2014. There is no evidence before the Tribunal to suggest otherwise.

8. Turning now to the bundle of emails set out in paragraph 57(b) to (f) above, the Tribunal has read and considered the official translation of each and notes the collection of emails is between the parties and on the dates set out above. None of them amounts to an order much less a purchase and there are no sales invoices at all. The emails are a discussion, with pictures, between the applicant and various suppliers for the provision of seafood in small quantities and values, not container loads as occurred in 2013. Specifically, the email referred in paragraph 57(e) refers to an attached contract to supply and requests the contract is signed and returned. A copy of the signed contract, if it exists, was not provided to the Tribunal. The Tribunal concludes the Applicant was contacting potential suppliers in order to arrange product for sale in a future business rather than conducting a ‘trading business’ as such. The Tribunal notes the applicant was actively seeking to purchase a business at that time and ultimately purchased Veggie Heaven.

9. Therefore, the Tribunal is not satisfied LNV was conducting any business at all during the Intervening Period.

10. Accordingly, the Tribunal is not satisfied Veggie Heaven meets the definition of main business at all relevant points in time (emphasis added) therefore the Applicant does not meet cl.890.211 of the criteria because the ownership of the Veggie Heaven business by LNV commences on 16 November 2014.

11. This means it was not held for two years immediately before the application was lodged on 18 August 2016, and the 7-Eleven Business does not meet the main business test for the Applicant at any time.

12. Given the decision in respect of the main business in cl.890.211 there are no grounds to consider the remaining criteria necessary for the grant of this visa.

DECISION

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

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, 890 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

134Cancellation of business visas

….

1. 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.