Li (Migration)

[2019] AATA 5700

Li (Migration) [2019] AATA 5700 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yi Li
Mr Bin Yan
Mr Haofeng Yan

CASE NUMBER:  1621807

DIBP REFERENCE(S):  BCC2015/3320324 BCC2015/349564 BCC2015/350109 BCC2015/350110 BCC2015/350113 BCC2015/350114 BCC2016/2082479 BCC2017/997308

MEMBER:Warren Stooke AM

DATE:13 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 visa:

· cl.892.211 of Schedule 2 to the Regulations;

· cl.892.214 of Schedule 2 to the Regulations; and

· cl.892.221(a) of Schedule 2 to the Regulations.

Statement made on 13 August 2019 at 1:57pm

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) – Subclass 892 (State/Territory Sponsored Business Owner) – ownership of business – actively engaged in business – shared ownership of business – ownership corroborate with ASIC documents – maintained active involvement – ownership of assets – decision under review remitted  

LEGISLATION

Migration Act 1958 (Cth), ss 65, 134(1), 375A
Migration Regulations 1994 (Cth), Schedule 2 cls 892.211, 892.214, 892.221(a), rr 1.03, 1.11A(1)

CASES

Commissioner for Corporate Affairs (Vic) v Bracht (1989) 7 ACLC 121
Cullen v Corporate Affairs Commission (NSW) (1988) 14 ACLR 789
Re Lau & MIMIA (2002) AATA 703
Sun & Anor v Minister for Immigration and Anor [2015] FCCA 1266
Yang v Minister for Immigration and Border Protection [2014] FCCA 1576

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 to refuse to grant the applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 2 February 2015. The delegate refused to grant the visas on 15 December 2016.

2. The applicants applied for the visas on 2 February 2015. At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor). The applicants in this case are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.

3. The delegate made the decision on the basis that evidence of being actively engaged in the business was not provided by the applicant as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

4. The applicant appeared before the Tribunal on 17 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jack Yang. The applicant was represented in relation to the review. The representative made written submissions and attended the Tribunal hearing.

5. The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that she understood that the reason for the refusal to grant the visa was that “there was no management”.

6. The applicant confirmed to the Tribunal that to the best of her knowledge she had provided a copy of the decision to the Tribunal with her application, as the representative had filed the application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in the present case are whether the applicants satisfy the time of application criterion in cl.892.211 and the time of decision criterion in cl.892.211. Clause 892.211 requires that the applicant has had, and continues to have, an ownership interest in 1 or more actively operating main business in Australia for at least 2 years immediately before the application is made. Clause892.221 requires that the applicant continues to have, an ownership interest in 1 or more actively operating main business in Australia at the time of decision.

   ACN and Share Holding

9. The applicant provided evidence that she acquired 100 per cent ownership of Sihang Trading Australia Pty Ltd (T/S Bargains on Parade) on 19 November 2012. The business was described as a retail shop and is located at Shop 1/17 Douglas Parade, Williamstown, Victoria [Department Fil: Folio 188-191]

10.  The applicant provided evidence that the business was purchase for the sum of $190,000 and that the guarantors for the business were Meiquin Han and Bin Yan. The applicant, also provided a copy of the transactional documentation relating to the business purchase located at Shop 1/17 Douglas Parade, Williamstown, Victoria. [Department Fil: Folio 153-186]

11.  The stock as valued and agreed by both parties on 1 November 2012 was $55,000. [Department Fil: Folio 156]

12.  It was further, submitted that the applicant has had full control of operations, as an operator/manager, since 19 November 2012.

13.  The applicant submitted that a lease for the business premises was put in place on 5 January 2009, by the previous owner, which transferred to Sihang Trading Australia Pty Ltd on 1 November 2012. The business has an ACN 159 179 218, with a registration date from 25 June 2012 and a review date of 26 June 2019. The ABN was registered on 1 October 2012, with an ABN 51 159 179 218.

14.  The applicant stated to the Tribunal that she acquired the business using monies from back home in China and that she had businesses and a company also in China, which she stated she still has.

15.  The applicant stated that she purchased the business in Australia from savings in China and that she had transferred the purchase money of $190,000 for the business, plus $55,000 for the stock.

16.  The Representative for the applicant provided the Tribunal with financial documentation on 19 July 2019, that confirmed that the cumulative transfer of money to the applicant and her husband was $250,482.00, which was transferred from the ICBC Bank in China to their Australian business accounts with Westpac and the Commonwealth Bank. [Tribunal File: Folios 632-642]

17.  The applicant also provided evidence that she and her husband had borrowed money in Australia to finance their living and residential assets, which was obtained through mortgages.

18.  The applicant gave evidence that she was not involved in the business purchase, which was handled by her husband, who was involved in both the buying and selling, but the applicant became the sole owner of the business.

19.  The applicant advised the Tribunal that the lease for the premises will expire in November 2019 and she will be involved in the renewal process. In this regard, the applicant stated that she pays about $70,000 per annum in rent, which is $6,000 per month or just over.

20.  The applicant confirmed in evidence that the monies transferred from China to Australia were used to purchase the business and that subsequent borrowings were used to provide for residence and living expenses.

Business Operation

21.  The applicant gave evidence that when she commenced the business she had two employees, where Domian was full-time and Helen was part-time.

22.  The applicant stated that payroll documentation is provided to her accountant and that all workers had fixed hours and therefore there is no need to record the time.

23.   The applicant gave evidence that the business operates seven days per week, with the hours commencing at 9.00am Monday to Wednesday and closing at 5.30pm; 9.00am Thursday and Friday and closing at 6.00pm; 9.00am to 5.00pm on Saturday and 10.00am to 5.00pm on Sunday.

24.  The applicant stated that there is at least one employee in the shop at any one time and that there are two employees on Monday and Friday.

25.  The applicant gave evidence that from the inception of operating the business she was at the shop every Saturday and Sunday and one day between Monday and Friday, with another half full day spent at the warehouse to get the supplies, together with regular work from home, which included monitoring of the business on CCCTV.

26.  The applicant gave evidence that she does not pay herself a wage from the business.

27.  The applicant stated that she pays the business invoices herself.

28.  The applicant gave evidence that her role in the business was to manage all of the business from different aspects, which included:

·Day to day management of the business, by keeping the shop clean and orderly;

·Maintain cash handling and monitor CCTV (which she stated had the formal consent of the employees);

·Maintain accounts;

·Ordering; costings and pricing management;

·Warehouse purchasing and visitations to observe new offerings;

·Follow up customer requests for goods;

·Attend exhibitions to observe available suitable goods to stock;

·Payment of invoices;

·Organise seasonal sale offerings e.g: Christmas;

·Manage the layout of the shop.

29.  The applicant stated that her husband is not involved in the business’s ongoing management, as he only took part in the original purchase.

30.  The applicant gave evidence that she is a graduate (Commerce and Business Management) of the No 2 University of Industry, in Shanghai, China.

PAYG Payment Summary 2013 and 2014

31.  The applicant provided evidence that from the period of 19 November 2012 (date of commencement of the business) to 30 June 2013 the applicant engaged three employees that included one full-time and two casuals or part-time employees and that their total gross wage payment was $25,326.

32.  Further, the applicant provided evidence that from the period of 1 July 2013 to 30 June 2014 the applicant engaged two employees and that their total gross wage payment was $37,392.

BAS Statements

33.  The applicant provided the Tribunal with copies of the business’s quarterly Business Activity Statements for the period from 1 October 2012 to 31 March 2019. In summary, the statements for the respective quarters provided the following information:

Period	Total Sales (G1)	Total Non-Capital Purchases (G11)	Total Wages (W1)
1 October to 31 December 2012	$58,524.00	$115,136.00	$8,011.00
1 January to 31 March 2013	$75,029.00	$67,566.00	$9,116.00
1 April to 30 June 2013	$73,978.00	$64,627.00	$12,754.00
1 July 2014 to 30 September 2013	$72,842.00	$83,419.00	$9,350.00
1 October to 31 December 2013	$96,212.00	$92,341.00	$9,350.00
1 January to 31 March 2014	$77,463.00	$54,246.00	$9,350.00
1 April to 30 June 2014	$90,836.00	$91,379.00	$9,350.00
1 July 2014 to 30 September 2014	$92,850.00	$86,732.00	$9,149.00
1 October to 31 December 2014	$107,558.00	$102,137.00	$9,149.00
1 January to 31 March 2015	$76,843.00	$79,979.00	$9,149.00
1 April to 30 June 2015	$78,118.00	$91,901.00	$9,149.00
1 July 2014 to 30 September 2015	$76,568.00	$94,009.00	$9,381.00
1 October to 31 December 2015	$79,489.00	$96,276.00	$9,381.00
1 January to 31 March 2016	$71,972.00	$92,374.00	$16,816.00
1 April to 30 June 2016	$71,927.00	$69,196.00	$15,190.00
1 July 2014 to 30 September 2016	$78,156.00	$80,301.00	$10,337.00
1 October to 31 December 2016	$90,033.00	$90,692.00	$10,337.00
1 January to 31 March 2017	$72,117.00	$70,578.00	$10,337.00
1 April to 30 June 2017	$80,857.00	$77,662.00	$11,564.00
1 July 2014 to 30 September 2017	$76,327.00	$11,564.00
1 October to 31 December 2017	$100,029.00	$13,664.00
1 January to 31 March 2018	$80,273.00	$12,613.00
1 April to 30 June 2018	$74,535.00	$14,015.00
1 July 2014 to 30 September 2018	$80,187.00	$13,426.00
1 October to 31 December 2019	$100,476.00	$13,663.00
1 January to 31 March 2019	$80,050.00	$13,664.00

34.  Further, the most recent Tax Return for 2018, indicated a Total Income of $301,061 and Cost of Sales of $150,529, with Superannuation expenses of $2,033 and Rent of $67,096, which were included in a gross sum for expenses of $291,265. On this basis the net income for the business was $9,796.

35.  The Tax Return for 2018, indicated that the Total Assets for the business were $568,599, which included a closing stock of $394,480 and the Total Liabilities were $529,892, which included a Total Debt of $502,691.

S359AA and Departmental Investigation (s375A Certificate)

36.  The applicant’s representative provided the Tribunal with an extract Transcript relating to a Departmental Inspection and Interview that took place on 29 April 2016 with the applicant. [Departmental File: Folios 588-610] Further, the Tribunal pursuant to s359AA advised the applicant of evidence from an interview with an employee together with pay scales and classifications contained in the underpinning award.

37.  In so doing, the Tribunal informed the applicant that there was a s375A Certificate on the Departmental File and explained the relevance of the material; and sought confirmation that the applicant understood the information the Tribunal was putting to the applicant for comment. The Tribunal also offered the applicant an opportunity to discuss the material with her representative and sought advice as to whether the applicant required additional time.

38.  In essence, an employee of the applicant (identified as Damian) had made a statement in the interview to the Department on 29 April 2016 - ”I’m the manager – If you want to get down to basics, I’m the manager. In the last month YL (the applicant) has come in maybe 5 times.” [Tribunal File: Folio 124a]

39.  The Tribunal has considered the relevant material subject to the s375A Certificate and shared the relevant adverse information with the applicant. In this regard, the Tribunal finds that whilst the Certificate is valid, to the extent that it protects Departmental Procedures and Processes, the adverse information, which may be relevant to the Tribunal’s decision has been canvassed with the applicant and a response has been given, which the Tribunal accepts.

40.  In response to this information the applicant gave evidence that she is the owner of the business and in control of the totality of the business. She stated that she had never appointed Damian as the manager of the business and that he only retained responsibility relative to other workers.

41.  The applicant gave evidence that it was always up to her to decide the type and amount of work. In relation to hours of work the applicant stated that she would normally get to the shop and work over the weekends and that Damian was not familiar with how often the applicant would go to the shop. It was also explained that the applicant was charged with stocking the business and this activity was undertaken outside of the shop (warehouses).

42.  The applicant, in response to a question regarding the classification of Damian, as contained in Schedule B of the Award stated that when she took over the business her accountant set the pay rates for the employees.

Evidence of Mr Jack Yang

43.  Mr Yang stated to the Tribunal that he is an Australian Permanent Resident and that he commenced working for the applicant in 2016. He stated that he was the Manager and was paid $20.75 per hour.

44.  The witness gave evidence that he works in the shop from 9.00am to 5.30pm Monday and Wednesday; 12.30pm to 6.00pm Tuesday; 1.30pm to 6.00pm Thursday and Friday; and 9.00am to 12 noon on Saturday. He stated that he works 34 hours per week.

45.  The witness provided evidence that the applicant does the ordering and that – “she is totally in control in the business and if there is trouble we contact her with any problems.”

46.  The witness stated – “I take orders [from the applicant].”

Submission of the Representative

47.  The Representative for the applicant made the following submission with respect to the authorities to be considered in the review of the delegate’s decision and general observations, as follows:

“In considering what may constitute the level of involvement required in order to meet the direct and continuous involvement in day to day management of the business requirements, it was noted by Simpson J in the matter of Sun & Anor v Minister for Immigration and Anor [2015] FCCA 1266 (18 May 2015) that day to day management "requires continuity and regular activity by the Applicant" at [34].

In the decision of Commissioner for Corporate Affairs (Vic) v Bracht (1989) 7 ACLC 121 Justice Ormiston of the Victorian Supreme Court reasoned that "management" includes the following indicators:

a.    activities which involve policy and decision making;

b.   related to the whole or substantial part of the business affairs of a corporation;

c.    to the extent that the formulation of those policies or the making of those decisions may have some significant bearing on the financial standing of the corporation or the conduct of its affairs.

Additionally, in the decision of Cullen v Corporate Affairs Commission (NSW) (1988) 14 ACLR 789, Justice Young of the NSW Supreme Court considered the issue of management of a corporation and noted:

"... one looks to see somebody making decisions as to the direction of the corporation though one does not necessarily look for someone who is making decisions at the highest level, nor is it necessarily so that the manager's decision will not be subject to obtaining the approval of some higher officer."

With regard to interpreting the term "day-to-day management", in the decision of Re Lau & MIMIA (2002) AATA 703 — a case which involved the review of a decision to issue a Notice of Cancellation pursuant to s. 134 of the Act — the Administrative Appeals Tribunal noted:

"While some of the activities undertaken by the applicant might be viewed as unsophisticated, there is nothing to suggest that they were inappropriate for the nature of the proposed business ... the use of the term day-to-day management does not require that activity be recorded every day, and the input at a senior level by someone of the experience of the applicant will often be intangible."

In summary, it is our submission that the salient points that may be gleaned from the authorities outlined above are as follows:

1.   An assessment as to what may constitute day to day management of a business must be assessed by reference to the nature and size of the business in question and what is appropriate in these respects.

2.   A person need not be physically present at a business premises, or even in Australia generally, to be considered to be involved in the day to day and overall management of a business, nor need their activities necessarily be an everyday occurrence.

3.   Continuous involvement in day to day management of a business requires regular activity by the applicant.

4.   Management activities include planning and goal-setting, allocating resources, assigning tasks, supervising and leading the businesses team, controlling resources and monitoring and managing performance.

5.   Maintaining direct involvement in the management of a business is not limited to responsibility within the business in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure, nor does it necessarily require management of the entire business operations.

6.   The requirement for direct and continuous involvement in the management of the business is assessed in terms of both day-to-day management and overall direction and performance as distinct considerations.”

Ownership interest in main business

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

49.  The business relied on by the applicant to satisfy these requirements is Sihang Trading Australia Pty Ltd (T/S Bargains on Parade). Accordingly, the Tribunal must consider the nature of the applicant’s interest in this business, whether the business was actively operating and whether it met the definition of ‘main business’ in the period commencing two years immediately prior to the date of application and as at the date of application. 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).

ISSUES

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

51.  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: r.1.03 of the Regulations and s.134(10) of the Act. Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of r.1.11A of the Regulations, set out in the attachment to this decision: r.1.11A(1).

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

53.  The Tribunal is satisfied from the evidence that the applicant has 100% ownership of the business, which is corroborated by ASIC documentation and the register of shareholding; and that the applicant has maintained that status since the purchase of the business on 19 November 2012.

54.  Further, the Tribunal is satisfied that the applicant was the owner of the business for the two year period immediately preceding the purchase of the business and has continued to maintain that status up until the time of decision.

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

ISSUE TWO

56.  Was the business relied on actively operating at all relevant times?

57.  In order to meet cl.892.211(1) the Tribunal must be satisfied that the relevant business or businesses were actively operating both at the time of making the visa application and during the two years immediately before. In order to meet cl.892.221(a) the applicant must continue to satisfy this requirement at the time of this decision.

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

59.  The Tribunal is satisfied on the basis of the evidence that the applicant has maintained 100% ownership of the business for the period from 19 November 2012 to the present, which is confirmed by the ASIC documentation.

60.  Accordingly, the Tribunal is satisfied that the nominated business was and is actively operating at all relevant points in time.

ISSUE THREE

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

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

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

64.  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.

65.  Thirdly, the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business must meet certain thresholds:

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

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

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

66.  Finally, the business must be a qualifying business. ‘Qualifying business’ is defined as an enterprise that is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public, and is not operated primarily or substantially for the purpose of speculative or passive investment: r.1.03.

67.  The Tribunal is satisfied that the applicant has been actively involved in the day to day operation of the business, since the business was purchased on 19 November 2012 and continues to maintain that involvement. In this regard, the Tribunal accepts that to be ‘actively’ in the business does not require the applicant to be present at the business during all trading periods and also accepts that ‘active’ does include functions associated with the purchases of stock through third party suppliers, where the applicant will not be present always at the point of sale. These activities naturally will require the applicant to be present at suppliers. Similarly, the Tribunal accepts that a business owner would need to spend time with service providers, including accountants, bankers, and legal advisers, as pertains to leasing and other contractual activities.

68.  The Tribunal is satisfied on the evidence that the applicant has been involved in planning, organising, directing and controlling the resources of the business. The evidence subject to the s375A Certificate, where Damian stated that the applicant only came in 5 times in the last month has been contradicted by the evidence of the applicant, wherein she stated that she is the manager and that she worked at times and in places (suppliers) that Damian would not have been aware of. The Tribunal accepts this evidence from the applicant.

69.  Further, in the period from 19 November 2012 until the time of decision the Tribunal is satisfied that the applicant has maintained an active involvement in the operation of the business both on a day to day basis and as the person in control of the financial management;  stock management and employee management. In this regard, the Tribunal is satisfied that the business ownership of the assets has been maintained in the period of operation and that the business, based upon the submitted tax return for the 2018 Taxation period is viable and paying tax, based upon the declared profit for the period. The applicant provided evidence that the business was purchase for the sum of $190,000 and that the stock as valued and agreed by both parties on 1 November 2012 was $55,000. [Department Fil: Folio 156]

70.  Further, the Tribunal is satisfied, based upon the 2018 Tax Return that the asset base of the business exceeds the original investment.

71.  Accordingly, the Tribunal is satisfied that the nominated business does meet the definition of main business at all relevant points in time.

CONCLUDING FINDING

72.  Given the findings above, the Tribunal is satisfied that cl.892.211(1) is met. The Tribunal has also considered other aspects of cl.892 pertaining to this review, which have been considered hereafter.

Australian Business Number and Business Activity Statements

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

·an Australian Business Number has been obtained, and

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

74.  Having regard to the above findings, the relevant business is Sihang Trading Australia Pty Ltd (T/S Bargains on Parade) with the ABN 51 159 179 218.

75.  The Tribunal is satisfied that the business has been assigned a bona fide ABN and is registered for GST returns.

76.  Further, the Tribunal has been provided with BAS statements for all the years of operation and is thereby satisfied that the criteria for the two years immediately before the visa application was made have been submitted to the ATO and have been included in the application.

77.   In relation to the BAS statements submitted by the applicant and referred to in the summary contained herein, the Tribunal notes that the Total Sales provided at G1 on the Business Activity Statements have on a significant number of occasions been less that the Total of Non-Capital Purchases, which is concerning and has not been explained. This, however, is not the basis of the review of the delegate’s decision and thereby may require further review by the Minister when considering the other relevant criteria. The Tribunal notes that the Tax Returns submitted by the applicant do not correlate with this data, when considering the accounting reference to expenses.

78.  Given the above findings, the Tribunal is satisfied that cl.892.211(2) is met. The Tribunal has also considered cl.892.214 and 892.221(a).

Business activities

79.  Clause 892.214 requires that, at the time of the visa application, neither the applicant nor his or her spouse or de facto partner (if any) has a history of involvement in business activities that are of a nature that is not generally acceptable in Australia.

80.  The Tribunal has no known information before the Tribunal that would identify a history of the applicant’s or her spouse’s involvement in business activities that are of a nature that is not generally acceptable in Australia.

81.  Given the findings above, the Tribunal is satisfied that cl.892.214 is met.

82.  Clause 892.221(a) requires that at the time of decision, the applicant continues to satisfy the criteria in Clauses 892.211 and 892.214. Accordingly, the Tribunal has considered whether the applicant continues to meet the requirement that neither they nor their spouse or defacto partner (if any) has history of involvement in business activities that are of a nature that is not generally acceptable in Australia.

83.  Given the findings above, the Tribunal is satisfied that the applicant continues to satisfy the criteria in both Clauses 892.211 and 892.214 at the time of decision. Accordingly, the Tribunal is satisfied cl.892.221(a) is met and will remit the matter to the Minister on that basis.

84.  Further, the Tribunal finds that as the primary applicant has satisfied cl.892.212 and cl.892.221(a), it therefore finds that the secondary applicants are members of the family unit of a person (the primary applicant) who has satisfied cl.892.212 and cl.892.221(a) and should be considered in accordance with the remaining criteria, as directed.

DECISION

85.  The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:

·cl.892.211 of Schedule 2 to the Regulations;

·cl.892.214 of Schedule 2 to the Regulations; and

·cl.892.221(a) of Schedule 2 to the Regulations.

Warren Stooke AM

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

134Cancellation of business visas

….

(10)     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.