Lin (Migration)

[2020] AATA 2185

Lin (Migration) [2020] AATA 2185 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fang Lin

CASE NUMBER:  1721655

DIBP REFERENCE(S):  CLF2012/129100 CLF2012/130757 CLF2012/130764 CLF2015/8761 CLF2017/35898 CLF2017/69151

MEMBER:Alison Mercer

DATE:28 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Business Skills - Established Business (Residence) (Class BH) visa for reconsideration, with the direction that the applicant meets the following criterion for a subclass 845 (Established Business in Australia) visa:

·     cl.845.222(1) of Schedule 2 to the Regulations.

Statement made on 28 May 2020 at 3:02pm

CATCHWORDS

MIGRATION – Business Skills - Established Business (Residence) (Class BH) visa – Subclass 845 (Established Business in Australia) – business skills points test – equivalent of three full-time employees in 12 months before application – identification and migration status of employees – Australian citizens or permanent residents – hours worked and amounts paid – minimum hours and wages – discrepancies between PAYG and BAS statements and financial statement – passage of time since relevant period – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(1), (2)

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 845.222(1), Schedule 7, item 7170

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 25 August 2017 to refuse to grant the visa applicant a Business Skills — Established Business (Residence) (Class BH) Subclass 845 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 June 2012.

3. A delegate initially refused to grant the visa on 12 December 2012 on the basis that the applicant failed to satisfy cl.845.213 and cl.845.216. The applicant applied to the Migration Review Tribunal (as it then was) for review, and on 14 August 2014, the Tribunal (differently constituted) set aside the delegate’s decision and remitted the matter back to the Department for reconsideration with a direction that the applicant met cl.845.213 and cl.845.216.

4. On 7 November 2014, another delegate made a decision to refuse to grant the visa, this time on the basis that the applicant did not meet cl.845.215.  The applicant sought review of this decision with the Tribunal (as presently constituted) and on 4 November 2016, the Tribunal set aside the delegate’s decision and remitted the matter back to the Department for reconsideration with a direction that the applicant met cl.845.215.

5. On 25 August 2017, another delegate made a decision to refuse to grant the visa, this time on the basis that the applicant did not satisfy cl.845.222. Clause 845.222(1) requires that the applicant met the gazetted pass mark in the Business Skills Points Test (105 points). The delegate assessed that the applicant was entitled to 40 points only. In particular, the delegate did not award any points for the component of the Business Skills Points Test relating to the applicant having the equivalent of 3 full time employees in her main business. The delegate found that the applicant’s main business, Huayi Holdings Pty Ltd (trading as Sam’s Plate), claimed to have 11 employees between 27 June 2011 and 26 June 2012. However, the delegate did not accept this, as she found that the applicant had provided insufficient evidence of the migration status of all of the employees.  She further found that the total hours of work listed by the applicant for her employees were below the equivalent of full time hours (30 hours per week) for 3 employees over the relevant period. Finally, the delegate found that the financial statements provided by the applicant showed wages bills which were less than the equivalent of wages for at least 3 full time employees.

6. The Tribunal received a review application from the applicant on 13 September 2017, which was accompanied by a copy of the delegate’s decision, and an authority by which the applicant appointed a registered migration agent, Ms Karen Wong, as her representative and authorised recipient for correspondence.

7. The matter was constituted to a Tribunal Member on 17 October 2019.

8. On 23 October 2019, the Tribunal wrote to the applicant, via her agent, pursuant to s.359(2) of the Act to invite her to provide information demonstrating that she was entitled to 105 points, the pass mark for the applicable Business Skills points test in Schedule 7 to the Regulations, and in particular, demonstrating that she was entitled to 60 points for the business attributes component of the Test. The Tribunal noted that the delegate found the applicant was not entitled to 60 points under this component, as she did not accept that the applicant had the equivalent of at least 3 full time employees in her main business in the 12 months immediately preceding the visa application date.  The Tribunal requested that the applicant provide the information by 6 November 2019.

9. On 4 November 2019, the Tribunal received legal submissions, together with supporting documents, from the applicant’s agent. In summary, the applicant’s agent made the following points in her submissions:

   ·the applicant had made her subclass 845 visa application to the Department on 27 June 2012, and it was refused on 2 occasions by the Department (12 December 2012 and November 2014) and subsequently remitted by the Tribunal on 2 occasions (first by the Migration Review Tribunal, as it then was, and a second time by the current Tribunal) to the Department for reconsideration with directions that were in favour of the applicant;

   ·on 25 August 2017, a Department delegate refused the application a third time, this time on the basis that cl.845.222 was not met. In particular, the delegate was not satisfied that the applicant’s business, Huayi Holdings Pty Ltd (trading as Sam’s Plate) (the applicant’s ‘main business’) offered a total of 4,680 hours of employment, which equated to 3 full time employees over the 12 month period immediately prior to lodgment of the visa application (‘the relevant period’);

   ·the enclosed summary of employees employed by the applicant’s main business in the relevant period had been provided to the Department, and clearly showed that the main business offered total employment hours of 5,675 hours during the relevant period.  It was submitted that the delegate had this information but had made an incorrect calculation and mistakenly concluded that the main business failed to offer the minimum employment hours (calculated by the delegate as 4,680) in the relevant period;

   ·on 21 June 2017, the delegate requested that the applicant provide evidence of the immigration status of her employees. She was advised by the applicant’s agent that it would be difficult to do so for a period so far in the past, and that the applicant was not in a position to provide any additional material in relation to this issue;

   ·it was submitted that, considering the relevant period was at least 6 years ago, and the claimed employees were no longer employed in the business, it was reasonable that the applicant could not provide the documentary evidence requested by the delegate. Nevertheless, the Tribunal was referred to PAM3, and was asked to take into account the fact that the applicant was willing to provide the necessary information about the claimed employees to enable the delegate to verify their immigration status from the Department’s electronic records;

   ·the enclosed PAYG payment summary for the financial year 2012/13 was also provided to the delegate on request. It clearly showed that the total gross salary amounts paid by the main business between 1 July 2011 and 30 June 2012 totalled $81,332. Similar salary payout figures for the same period were also shown on the main business’ BAS, submitted to the ATO, for the same period. It was submitted that the delegate had relied on the wrong information (that is, financial statements for the year ending 30 June 2012) to mistakenly conclude that the main business failed to pay the minimum wages for at least 3 full time employees in the relevant period;

   ·in light of the above, it was submitted that the appropriate points to be awarded under the Schedule 7 Business Skills points test were as follows:

Points test criteria	Points
Age at application (24)	20
Business attributes	60
Net assets at decision of at least AUD $500,000	5
Language ability at decision – functional English	20
TOTAL	105

·it was also submitted that, from the Department decision record, it appeared that the delegate might have accidentally discounted the 5 points for net assets being more than AUD $500,000 but less than AUD $1,500,000 at the time of decision. Even though this was not specifically raised by the delegate, it was argued that the applicant met item 7403 of Schedule 7, and an updated Statement of Assets and Liabilities (SALP) dated 30 September 2019 was provided, together with relevant supporting evidence; and

·in conclusion, it was submitted that the applicant had provided substantial evidence to demonstrate that, during the relevant period, her nominated main business:

ooffered total employment of more than 4,680 hours, which equates to 3 full time employees;

oemployed 10 employees who were Australian citizens;

opaid salary of more than $74,692 per year, which equated to minimum wage payments for 3 full time employees; and

ohad turnover of more than $200,000; and

·alongside this, the applicant:

owas aged 24 at the time of the application;

ohad functional English at the time of decision; and

ohad net assets of more than AUD $500,000 but less than AUD $1,500,000 at the time of decision; and

·the applicant should therefore be entitled to a score of 105 points, the pass mark for the Business Skills points test in Schedule 7, and thus met cl.845.222.

1. The supporting documents included the following:

   ·ASIC current and historical extract for Huayi Holdings Pty Ltd;

   ·Tribunal decisions of 18 August 2014 and 4 November 2016 for the applicant;

   ·summary of employees employed by the main business during the relevant period;

   ·payroll summary of the above employees in the relevant period;

   ·PAYG summary statement for the year ended 30 June 2012; and

   ·updated SALP for the applicant dated 30 September 2019.

2. The applicant appeared before the Tribunal on 12 May 2020 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The hearing was conducted by teleconference due to the restrictions imposed by the COVID19 pandemic.

3. At the hearing, the applicant told the Tribunal that she always checked the passports of her employees, who were mostly teenagers whose parents approached her to provide their children with work experience. In response to the Tribunal’s query, the applicant said that she did not generally keep a copy of her employees’ passports, but sighted them before taking them on, as she was aware that she would need to satisfy the visa requirement to have the equivalent of 3 full time employees who were Australians or eligible New Zealand citizens in due course. She confirmed that apart from her restaurant manager and chef, most of the other employees were teenagers doing casual waiting/cashier work during the relevant period. The applicant said that many of the young people she employed came through a local government program called (she thought) ACE, which matched up employers with high school students looking for work experience and casual work. The applicant said that she understood and ensured that all employees received the correct award amount per hour, depending on their age. In response to the Tribunal’s query, the applicant said that she was not totally sure if the ACE program was confined to Australian citizens or permanent residents but she thought that it would have been, as it was intended to benefit local young people.

4. The Tribunal identified with the applicant and her agent its concerns that there was a discrepancy between the 2011/12 financial statement for the main business, which listed wages of $53,832, and the PAYG summary statement, supported by BAS statements lodged with the ATO, which listed wages of $81,332. The applicant noted that the 2011/12 financial statements were to 31 May 2012, whereas the PAYS summary statement and BAS went to 30 June 2012, which would explain why they had different figures. The Tribunal queried whether 1 month was sufficient to explain a discrepancy of nearly $30,000 in wages. The applicant said that without speaking with her accountant, it was difficult for her to respond so long after the period in question.

5. The Tribunal also identified that its calculations of documents on the Department file, which appeared to be individual PAYG reports for all employees in the 2011/12 financial year, including the applicant herself, prepared internally using MYOB or similar, indicated that the total wages paid were $70,132 (or $68,214 if the applicant’s wages were excluded). It noted that this fell short of the Fair Work Australia amount of $74,692 as the minimum salary for 3 full time employees in that period. The applicant and her agent indicated that it was difficult to respond to this without being referred and being able to see the relevant documents. The Tribunal therefore undertook to write to the applicant and her agent following the hearing to set out its concerns and to give them 14 days to respond, with the possibility of an extension of time to do so, given they intended to clarify some aspects with the applicant’s accountant if possible.

6. Following the hearing, the Tribunal wrote to the applicant via her agent on 13 May 2020 to invite her to respond to issues raised at hearing, and to provide any additional information she wished to provide. The applicant and her agent provided additional material on 26 May 2020.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present matter is whether the applicant meets cl.845.222 which requires the applicant’s score on the business skills points test is not less than the number of points that is specified for the purpose of this subclass by Gazette Notice.

9. Gazette Notice S238, 27 June 1997, provides, inter alia, that for the purpose of cl.845.222(1) of Schedule 2 of the Regulations, the number of points for the ‘Business Skills Test’ (as defined in r.1.03 of the Regulations) is 105 points. This Gazette Notice remains current for these purposes. The relevant provisions are extracted in the attachment to this decision.

10. Regulation 1.03 provides that: Business Skills points test means the test set out in Schedule 7, therefore for the purpose of cl.845.222(1), the applicant’s score against the business skills points test must not be less than 105 points.

11. Schedule 7 is divided into a number of parts which provide points for the following criteria for a subclass 845 application: business attributes, age, net assets, and language ability. In the present case, the issue is whether the applicant meets the ‘business attributes’ criteria.

12. The Tribunal notes that the delegate awarded the following points to the applicant:

    ·Age at time of application (24 years):  20 points

    ·Business attributes:  0 points

    ·Net assets at time of decision (less than $50,000):     0 points

    ·Language proficiency at time of decision (functional English):         20 points

    ·TOTAL:  40 points

13. Part 1 of Schedule 7 sets out the business attributes requirements. In particular, item 7170 Division 1.4 of schedule 7 sets out in column 2 the business attributes requirements for a subclass 845 visa. Column 3 of the item provides for the award of 60 points if the business attributes are satisfied.

14. The Business Attributes requirements state in part that in the period 12 months ending immediately before the application was made (in this case, 26 June 2011 to 26 June 2012), the total number of hours of employment provided by the applicant’s main business was at least equivalent to the total number of hours that would have been worked by 3 full-time employees over that period of 12 months, each of those hours having been worked by an employee, or employees, who were not the applicant or a member of the family unit of the applicant and were Australian citizens, Australian permanent residents or eligible New Zealand citizens (item 7170(a)).

15. The applicant must also satisfy the requirement in item 7170(b) (turnover of not less than AUD $200,000 in the 12 months immediately preceding the visa application) or (c) (exported goods or services valued at not less than AUD $100,000 in the same period).  In this case, the applicant sought to meet the requirement of having a turnover of not less than $200,000.

    Full time employees

16. As noted above, the delegate was not satisfied, from the evidence provided, that the applicant had demonstrated that the main business employed the equivalent of at least 3 full time employees in the 12 months prior to 27 June 2012. Specifically, the delegate was not satisfied that:

    ·    the main business had provided evidence of providing at least 4,680 hours of employment (which equated to 3 full time employees) in the relevant period;

    ·    the applicant could not provide evidence that her claimed employees were Australian citizens or permanent residents or eligible New Zealand citizens; and

    ·    the main business could not demonstrate wage payments of more than $74,692 per year, which equated to the payment of a minimum wage to 3 full time employees in the relevant period.

17. As also noted above, the applicant disputes this and has provided additional evidence to substantiate her claimed employment of at least 3 full time employees in the relevant period.

18. The applicant claims her employees were as set out in the following table, for the relevant period (26 June 2011 to 26 June 2012):

Employee	Employment period	Hourly rate	Working hours	Australian immigration status
[Employee 1] (dob [deleted])	27/6/11 – 9/10/11	14.03	282.2	Citizen
[Employee 2] (dob [deleted])	27/6/11 – 1/7/12	15.69	1978.84	Citizen
[Employee 3] (dob [deleted] ?)	24/10/11 – 8/7/12	15.69	713.83	Citizen
[Employee 4] (dob [deleted])	26/12/11 – 19/2/12	12	40.9	Citizen
[Employee 5] (dob [deleted])	4/7/11 – 11/12/11	10	94	Citizen
[Employee 6] (dob [deleted])	12/9/11 – 18/12/11	9.5	136	Citizen
[Employee 7] (dob [deleted])	11/7/11 – 31/7/11	8	12	Citizen
[Employee 8] (dob [deleted])	23/1/12 – 24/6/12	15.69	455.8	Citizen
[Employee 9] (dob [deleted])	27/6/11 – 8/7/12	8.85	821.75	Citizen
[Employee 10] (dob [deleted])	1/8/11 – 27/5/12	14	1140.28	Citizen
Fang LIN	1/7/11 – 30/6/12	5.3	362	Applicant – temporary resident

1. The delegate found that insufficient evidence was provided to establish that the people identified by the applicant were Australian permanent residents or citizens, nor that the combined hours worked and wage payments made in the relevant period established that the business had employed the equivalent of 3 full-time employees who were Australians or permanent residents or eligible New Zealand citizens in the relevant period. 

   Evidence provided to the Department

1. The Tribunal has reviewed the information provided by the applicant to the Department at the time of her visa application relating to this issue, which consists of the following:

   ·individual PAYG payment summaries for the 2011/12 financial years for the above named employees, including the applicant herself;

   ·copies of various forms of identity card for some of the above: Medicare and student card for [Employee 9], Victorian driver’s licences for [Employee 6], [Employee 3], [Employee 2], [Employee 10], [Employee 8] and [Employee 5], and copy of Resident Return Visa issued to [Employee 8];

   ·PAYG payment summary for the business itself for 2011/12, listing total of gross payments or taxable components of salaries/wages paid to employees as $81,332;

   ·BAS for the business, as viewed and printed from the ATO portal, for the periods July 2011 to September 2011 (total wages paid of $19,052), October 2011 to December 2011 (total wages paid of $17,851), January 2012 to March 2012 (total wages paid of $22,041) and from April 2012 to June 2012 (total wages paid of $22,388), totalling $81,332.

2. The Tribunal notes that the copies of the individual PAYG summary statements for the applicant’s employees on the Department’s files are faint and difficult to read. It further notes that the copies of the identity cards provided for some of the employees do not establish whether they are Australian citizens or permanent residents or eligible New Zealand citizens.

3. Given this, the Tribunal wrote both to the Department and to the applicant to try to obtain clearer and/or better information.

   Tribunal’s request for information and applicant’s response

4. On 23 October 2019, the Tribunal wrote to the applicant via her agent, pursuant to s.359(2) of the Act, to request that she provide information demonstrating how she was entitled to at least 105 points in the Business Skills Points test, and in particular, that she had the equivalent of at least 3 full time employees in her nominated business during the relevant period.

5. In response, the applicant and her agent provided the information and documents set out at paragraphs 9 and 10 above. In particular, it was submitted that the summary of hours worked by the applicant’s employees in her main business during the relevant period provided to the Department clearly showed total employment hours of 5,675, but this was incorrectly recorded as 4,680 hours by the delegate. It was further submitted that the request made by the Department in August 2017 for the applicant to provide proof of her employees’ immigration status was very difficult for her to comply with, as the period during which they were employed was 2011-2012, as a result of which she was not in a position to contact them now in 2017 to provide additional information relating to their immigration status. While it was acknowledged that the delegate took the wages figure from the 2011/12 financial statements for the main business ($53,832) to conclude that it was less than the minimum salary for at least 3 full time employees (which the delegate calculated as a minimum of $74,692 based on the standards used by the Fair Work Commission), it was submitted that the total wage payments listed in the PAYG summary statement for the business for 2011/12 were $81,332, which was corroborated by the wage figures in the ATO records of the BAS lodged by the main business over the same period. This exceeded the Fair Work Commission total for 3 full time employees paid the minimum wage.  The applicant’s agent submitted that this evidence should be preferred to the financial statements, and pointed out that the delegate could have relied on this information, rather than the financial statements for 2011/12.

6. Neither the applicant nor the agent has explained why there is a discrepancy between the wage figure in the 2011/12 financial statements ($53,832) and the PAYG summary statement and BAS wages paid for the same period ($81,332).  It is difficult to know why the delegate would have elected to use the PAYG summary statement and BAS figures, rather than the financial statements for 2011/12, without being requested to do so by the applicant.

7. However, the Tribunal accepts that both sets of figures exist; the issue is which one should be accepted for the purposes of this Part. The wages section of the individual PAYG summary statement for the applicant for 2011/12 is illegible (as are most of the others for the employees listed above). The Tribunal has therefore had regard to the Payroll Advice document issued for 2011/12 for the applicant and the other employees (these appear to be generated internally within the main business using MYOB or similar).  These indicate the following wages payments for that period:

Employee	Gross wage amount
Fang LIN	$1,918
[Employee 10]	$15,964
[Employee 9]	$7,273
[Employee 8]	$7,151
[Employee 7]	$96
[Employee 6]	$1,292
[Employee 5]	$940
[Employee 3]	$491
[Employee 2]	$31,048
[Employee 1]	$3,959
Total	$70,132

1. Excluding the applicant’s wages, the total is $68,214. The Tribunal notes that it was unable to locate the print out in the Department files for [Employee 3], who according to the information summarised in paragraph 24 above, was also employed in the relevant period and was paid gross wages of $714 during that time. Adding this to $68,214 gives a gross wages amount of $68,928. This falls short of both the PAYG Summary Statement for the main business and the BAS totals for the relevant period.

2. The Tribunal has regard to the personnel list provided by the applicant to the Department, which indicates that [Employee 2] was the manager, that [Employee 9], [Employee 5] and [Employee 8] were cashiers (along with 2 other employees named Mike and Melvin, who do not appear in any of the other information provided by the applicant as far as the Tribunal can tell), and that [Employee 10] and [Employee 6] were chefs. The Tribunal accepts from the information provided that not all of the employees discussed worked the same hours each fortnight, nor that they all worked continuously for the main business for the entire duration of the relevant period, but rather, some of them did while others worked for the main business for all part of that period.

   Tribunal’s request for information and the Department’s response

3. The Tribunal also wrote to the Department on 25 November 2019 providing the names and dates of birth of the 7 employees for whom the applicant provided individual PAYG summary statements, and requesting it to advise, pursuant to s.359(1) of the Act, with reference to its records, whether they were Australian citizens, permanent residents or temporary residents. The Tribunal advised that this was for the purposes of it being able to determine the number and status of the Australian employees that the applicant claimed to have had in the relevant period.

4. On 26 November 2019, a Department officer requested that the Tribunal provide the employees’ IDs so that the Department’s Integrated Client Service Environment (ICSE) records could be checked, and also advised that the Department required a summons in order to provide the requested information.

5. On 28 November 2019, the Tribunal issued a summons requesting the above information, in which it noted that it was not in the possession of the Departmental Client ID for the individuals listed in the summons.

6. On 2 December 2019, the Department again requested the client IDs for the listed employees from the Tribunal, as it was asserted that the Department was unable to identify the exact persons to whom the Tribunal’s query related with only names and dates of birth.

7. On 20 December 2019, the Tribunal reiterated that it was not in possession of the Departmental Client IDs, and queried whether there was any other way in which the Department could confirm the identity and immigration status of the listed individuals.

8. On 30 December 2019, the Department responded to advise that its Program Area had searched the system using the names and dates of birth provided and had located clients; however, there were variances to do with middle and last names, such that the Department was reluctant to confirm that the persons located were the same as those listed in the Tribunal’s summons. The Department advised that, to mitigate any possible privacy breaches, further information be obtained about each individual, such as residential addresses and, in particular, if possible passport details, before any decision or confirmation could be made that the clients they had located were the same as those listed in the Tribunal’s summons.

9. On 13 January 2020, the Tribunal responded to reiterate that it did not have any further details – including middle names where not already provided, or passport details – and nor did the review applicant, as she was their employer in 2011-2012 but had no current means of contacting them. The Tribunal advised that the only additional information it could provide to assist with identification was the named persons’ tax file numbers as per the PAYG summary statements for them provided to the Department in 2012. The Tribunal noted that the Presiding Member was of the understanding that it was legally possible for the Tribunal and Department to use TFNs to verify the identity of claimed employees where this was relevant to a visa criterion (as it was in this case). The Tribunal also advised that the Presiding Member intended to ultimately place a non-publication direction on the decision once it was finalised, to further address any privacy concerns. The Tribunal noted that it appreciated the Department’s assistance in this matter, and asked the Department to advise whether it required another summons or subpoena in order to cross-match the listed employees with their TFNs to advise the Tribunal of their migration status.

10. On 17 January 2020, the Department advised the Tribunal that the Program Area had confirmed that the Department did not have access to TFN information for the individuals that the Tribunal was enquiring about.  They further advised that unfortunately, there was no current delegation that enabled Department officers to verify information with the ATO. The Department reiterated that if the Tribunal could obtain further information from the individuals from the ATO, such as residential addresses and/or passport numbers, then the Department would be able to use the information to identify the correct individuals and confirm their immigration status.

    Evidence at Tribunal hearing and post-hearing evidence

11. As noted above in paragraphs 12 to 14, the applicant’s evidence at hearing was that she was aware of the need to demonstrate that her main business had the equivalent of at least 3 full-time employees who were Australian citizens or permanent residents or eligible New Zealand citizens in the relevant period, that she checked the passports and/or birth certificates of each employee in the relevant period but did not keep hard copies of these, and that she had found it difficult to track down these employees (many of whom were casual employees) some 9 years later.

12. Post-hearing, the applicant was able to provide copies of the biodata pages of the Australian passports of 2 of the employees of the main business during the relevant period ([Employee 1] and [Employee 9]). She reiterated that she had checked all employees’ migration status at the time, and was satisfied that they were either Australian citizens or permanent residents.

    Conclusions on whether employees in the main business were Australian citizens or permanent residents

13. The Tribunal concurs that the applicant faces a difficult task in attempting, in mid-2020, to provide proof of the immigration status of her employees – the majority of whom were teenagers working casually – from the 2011 – 2012 period. It accepts that she has done the best she can to address this issue, and it finds her evidence at hearing credible, as she was able to describe her familiarity with the Australian employee requirement in the Regulations, and her procedure at the time for checking this in order to ensure that her main business complied with this requirement. There is evidence on the Department and Tribunal file of the Australian permanent residence or citizenship status of at least 3 employees ([Employee 8], [Employee 9] and [Employee 1]) who were employed in the main business in the relevant period. Despite several requests by the Tribunal, the Department has been unable to provide confirmation of the migration status of any of the employees whose names and dates of birth were provided to it by the Tribunal.

14. The Tribunal notes that this issue involves a finding of fact by the Tribunal. Having considered the matter carefully, the Tribunal is satisfied from what documentary evidence exists, and the overall circumstantial evidence (including the applicant’s detailed and credible evidence at hearing) that all of the employees listed by the applicant as employed in her main business in the relevant period were either Australian citizens or permanent residents.

    Conclusions on whether the applicant’s main business employed the equivalent of 3 full-time employees in the relevant period

15. Accordingly, the next issue for the Tribunal to determine is whether the available evidence supports the applicant’s contention that the hours worked by these employees constituted the equivalent of at least 3 full time employees.

16. Although there is no set wages or hours amount that constitutes 3 full time employees set out in the Act or Regulations, the Department’s PAM3 (as it was at the time of the delegate’s decision) indicates that the wages total should be no less than the Fair Work Australia minimum salary of $74,692 for 3 full time employees, and that the minimum hours per week for 3 full-time employees is 90 hours (30 hours per employee). While the Tribunal is not bound to follow policy, particularly where it is inconsistent with the underlying legislation it purports to explain, the Tribunal considers it appropriate to follow the Department policy in this case, as it is clearly in the interests of consistency and good public policy not to accept a wages figure that is less than the minimum salary that would have to be paid to 3 Australian employees under Fair Work Australia’s auspices.

17. As noted above, the figures and financial documents relied upon by the delegate led the delegate to conclude that the hours for the applicant’s employees were less than 4680 hours (the total of 90 hours per week over 12 months) and that the salary amount was less than $74,692. The delegate therefore did not accept that the applicant had the equivalent of 3 full time employees in the business in the relevant period.

18. The Tribunal has canvassed this issue in some detail with the applicant, given that it also identified some discrepancies in the financial documents provided by the applicant (as set out at paragraphs 13 and 14 above, and raised with the applicant during the hearing and in the Tribunal’s post hearing letter of 13 May 2020).  On 26 May 2020, the applicant and her agent provided additional material to the Tribunal which included the following:

    ·PAYG Calculation Summaries and Special Purpose Financial Reports for the main business as at 30 September 2011 and 31 May 2012;

    ·BAS summary for the main business for 31 May 2012;

    ·payslips for [Employee 3] from 31 October 2011 to 1 July 2012 (it was noted that these were apparently not provided to the Department by oversight); and

    ·letter dated 26 May 2020 from Mr Sam Ng of SNG Partners, accountants for the applicant.

19. Mr Ng states in his letter that:

    …

    We … provide this letter to explain the discrepancy in the payroll figure stated in the PAYG payment summary statement and the financial statement for 2011/12, being $81,332 and $53,832 respectively.

    1. PAYG summary statement for 2011/12 $81,332

    These figures were retrieved and reconciled from BAS lodged with the ATO.

    July 2011 to September 2011: $19,052

    October 2011 to December 2011: $17,851

    January 2012 to March 2012: $22,041

    April 2012 to June 2012: $22,388

    TOTAL PAYG LODGED: $81,332

    It is important to note that these figures are for the period 1/7/11 to 30/6/12.

    2. Special Purpose Financial Report

    We refer to the following Special Purpose Financial Reports provided to support the visa application:

    1^st Special Purpose Financial Report: reporting period 1/12/2010 to 30/9/2011 (10 months)

    2^nd Special Purpose Financial Report: reporting period 1/10/2011 to 3/5/2012 (8 months)

    PAYG Payment Summary Statement is calculated as below:

    October 2011 to December 2011: $17,851

    January 2012 to March 2012: $22,041

    April 2012 to MAY 2012: $13,940

    REPORTED IN FINANCIAL REPORT: $53,832

    Please find attached calculation sheet at Appendix

    We would also like to confirm that we have been dealing with [the applicant] directly in relation to the company and tax related affairs including daily bookkeeping, GST, Employer Superannuation contributions guarantee and company income tax obligation. All of her personal and company statutory reporting obligation is fulfilled and updated. [She] has operated the business successfully and profitably. The business turnover is improving dramatically over the last 10 months and currently she is maintaining a solid record keeping for her business related matters.

    Based on the above reasonable ground, we confirm that [the applicant] is a genuine business owner who is capable to handle financial matters and committed to maintain her social responsibility…

20. While the delegate’s choice to use the financial statement wages figure is understandable, the Tribunal considers, after reviewing the above, that the more accurate and reliable figures for the relevant period are those set out in the BAS and PAYG Payment Summary figures, for the reasons set out by the applicant’s accountant and given these are the documents lodged with the ATO. It is therefore satisfied that the correct wages figure for the main business is $81,332. Excluding the applicant’s wages of $1,918, this leaves a wages figure of $79,414. The Tribunal is satisfied that this is greater than the Fair Work Australia minimum salary of $74,692 for 3 full time employees, and that it is consistent with the applicant’s main business having actually employed the equivalent of at least 3 full time employees in the relevant period.

21. Similarly, the Tribunal is satisfied that the correct hours of employment of all of the employees (excluding the applicant) for the relevant period is 5,675 hours, as asserted by the agent, which exceeds the minimum hours of 4680 (30 hours per each full time employee x 3 over 12 months).

22. Accordingly, the Tribunal is satisfied that the total number of hours of employment provided by applicant’s main business in the relevant period was the equivalent of at least 3 full time employees and that the employees of the main business in this period were Australian citizens or permanent residents. The Tribunal therefore finds that item 7170(a) is satisfied.

    Turnover

23. The Tribunal has reviewed the 2011/12 financial statements for the main business provided by the applicant to the Department and is satisfied that the turnover for that financial year (listed as total income/sales) was $251,035.  It is satisfied that this exceeds $200,000 and thus finds that item 7170(b) is satisfied.

24. Points In Total For This Part

25. The Tribunal finds the applicant has satisfied the requirements of items 7170(a) and (b) and therefore, 60 points have been awarded against this criterion.

Age Qualifications

1. The eligibility for points under Part 7.2 is determined by the applicant’s age at the time of application. The applicant was born on 14 July 1987 and the application was lodged on 27 June 2012. The Tribunal finds the applicant was 24 years old at the time of application and therefore she is entitled to 20 points under this Part.

English language qualifications

1. Eligibility for points under Part 7.3 is determined by evidence of the applicant’s English language ability at the time of decision.

2. The applicant provided substantiated evidence to the Department that she has ‘functional English’ and she has not provided any additional evidence to the Tribunal claiming to have a higher ability at the time of its decision.

3. Accordingly, the Tribunal finds that the applicant is entitled to 20 points for having functional English under this Part.

Net Assets Qualification

1. The delegate awarded the applicant zero points under this Part, as it appears that s/he found the applicant’s net assets were insufficient to be awarded any points at the time of decision, in August 2017. There is little discussion of this in the delegate’s decision, presumably because of the delegate’s findings in relation to the correct allocation of points to the applicant under the Business Attributes Part above.

2. The Tribunal notes that the applicant provided evidence of her net assets in a Statement of Asset and Liabilities (SALP) at the time of her application. However, this Part is expressed to be assessed at the time of decision (in this case, the Tribunal’s decision on review).

3. Subsequently, the applicant and her agent have provided an updated SALP to the Tribunal, dated 30 November 2019 which outlines the applicant’s net assets as at that date as follows:

   Net business assets:

   Huayi Holdings Pty Ltd: $222,361

   Penta Holdings Pty Ltd: $88,825

   TOTAL: $311,186

   Net personal assets:

   Residential property (value minus outstanding mortgage): $84,028

   CBA term deposit: $37,133

   CBA account #2: $110,352

   TOTAL: $251,513

   TOTAL NET BUSINESS AND PERSONAL ASSETS: $562,699

4. The Tribunal is satisfied that these figures are accurate, having regard to the supporting documentation provided, which included relevant bank statements, home loan statements, rates valuation and financial statements for both companies.

5. Accordingly, the Tribunal is satisfied that the applicant is entitled to 5 points under item 7403 of this part (net assets of not less than $500,000 but less than $1.5million).

Sponsorship Qualification

1. The applicant has made no claims nor provided any evidence to demonstrate that she is able to meet this criterion and no points have been awarded.

   Conclusion

2. The Tribunal has awarded the applicant the following points for the Business Skills Points Test:

   ·Age at time of application (24 years):  20 points

   ·Business attributes:  60 points

   ·Net assets at time of decision (less than $50,000):  5 points

   ·Language proficiency at time of decision (functional English):         20 points

   ·TOTAL:  105 points

3. As stated above, the applicant’s score against the business skills points test must not be less than 105 points. The Tribunal has found that her score is 105 points.

4. It therefore further finds that she satisfies cl.845.222(1).

5. Accordingly, the appropriate course of action is for the Tribunal to remit the matter to the Department for reconsideration in relation to any outstanding criteria.

   DECISION

6. The Tribunal remits the application for a Business Skills - Established Business (Residence) (Class BH) visa for reconsideration, with the direction that the applicant meets the following criterion for a subclass 845 (Established Business in Australia) visa:

   ·cl.845.222(1) of Schedule 2 to the Regulations.

   Alison Mercer
   Member

   
   

   EXTRACTS FROM MIGRATION REGULATIONS 1994

   SCHEDULE 7

   Part 1 - Business attributes

Column 1	Column 2	Column 3
Item	Attributes	Number of points
Division 1.4	Established business in Australia (Subclass 845 visas)
7170	In the period of 12 months ending immediately before the application is made: (a)      the total number of hours of employment provided by the main business (or businesses) of the applicant (or the applicant and the applicant’s spouse or de facto partner) was at least equivalent to the total number of hours that would have been worked by 3 full-time employees over that period of 12 months, each of those hours having been worked by an employee, or employees, who: (i)      were not the applicant or a member of the family unit of the applicant; and (ii)      were Australian citizens, Australian permanent residents or eligible New Zealand citizens; and (b)      the main business (or businesses) of the applicant (or the applicant and the applicant’s spouse or de facto partner) either: (i)      had a turnover of not less than AUD200 000; or (ii)      exported goods or services of a value of not less than AUD100 000	60
Division 1.5	State/Territory sponsored established main business(es) in designated area(s) (Subclass 846 visas)
7180	In the period of 2 years ending immediately before the application is made, the total number of hours of employment provided by the established main business (or businesses) of the applicant (or the applicant and the applicant’s spouse or de facto partner) in a designated area (or areas) was at least equivalent to the total number of hours that would have been worked by 3 full-time employees over that period of 2 years, each of those hours having been worked by an employee, or employees, who: (a)      were not the applicant or a member of the family unit of the applicant; and (b)      were Australian citizens, Australian permanent residents or eligible New Zealand citizens	60
7181	In the period of 2 years ending immediately before the application is made, the total number of hours of employment provided by the established main business (or businesses) of the applicant (or the applicant and the applicant’s spouse or de facto partner) in a designated area (or areas) was at least equivalent to the total number of hours that would have been worked by 2 full-time employees over that period of 2 years, each of those hours having been worked by an employee, or employees, who: (a)      were not the applicant or a member of the family unit of the applicant; and (b)      were Australian citizens, Australian permanent residents or eligible New Zealand citizens	40

Part 2 - Age of applicant at time of application

Column 1	Column 2	Column 3
Item	Attributes	Number of points
7201	Not less than 30 years but less than 45 years	30
7202	Not less than 45 years but less than 50 years	25
7203	Not less than 20 years but less than 30 years	20
7204	Not less than 50 years but less than 55 years	10
7205	Less than 20 years or 55 years or more	0

Part 3 - Language ability of applicant

Column 1	Column 2	Column 3
Item	Attributes	Number of points
Division 3.1	Language ability of applicant (Subclasses 845 and 846 )
7301	Better than functional ability in English	30
7302	Functional ability in English	20
7303	Bilingual in languages other than English	10
7304	Limited ability in English	10
7305	No ability in English	0

Part 4 - Net assets of applicant or of applicant and applicant's spouse or de facto partner together

Column 1	Column 2	Column 3
Item	Attributes	Number of points
7401	Not less than the equivalent of AUD2,500,000	15
7402	Not less than the equivalent of AUD1,500,000 but less than the equivalent of AUD2,500,000	10
7403	Not less than the equivalent of AUD500,000 but less than the equivalent of AUD1,500,000	5
7404	Less than the equivalent of AUD500,000	0

Part 5 - Sponsorship

Column 1	Column 2	Column 3
Item	Attributes	Number of points
7501	Sponsorship by the appropriate regional authority	15