Mahmood (Migration)

[2022] AATA 5032

Mahmood (Migration) [2022] AATA 5032 (10 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Adnan Mahmood
Mrs Natasha Adnan
Miss Fatima Adnan

REPRESENTATIVE:  Mr Charles Camidge (MARN: 0208664)

CASE NUMBER:  1930906

HOME AFFAIRS REFERENCE(S): BCC2018/1585487 BCC2018/1711950 BCC2018/1711953 BCC2018/1711962

MEMBER:Peter Ranson

DATE:10 August 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 10 August 2022 at 3:38pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – ownership interest in main business – nominated business – for at least 2 years immediately before the application was made – import-export business – nature of interest – ordinary shares – active operation – very limited transactions – business closed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 892.211

CASES
Zhou v MIMIA [2003] FMCA 169

statement of decision and reasons

Table of Contents

DECISION RECORD

statement of decision and reasons

INTRODUCTION

BACKGROUND

What evidence was considered by the Tribunal?

CONSIDERATION OF CLAIMS AND EVIDENCE

Ownership interest in main business

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

Import-export business

Campania General Store

Continuing to have an ownership interest in an actively operating main business

DECISION

INTRODUCTION

1. Mr Mahmood came to Australia from Pakistan in for the first time in 2010. He was accompanied by a friend, Mr Farhan Javed, and they each intended to buy or establish businesses in Australia. They chose to settle in Tasmania and Mr Mahmood applied for Subclass 892 visas for himself and his family on 6 April 2018.

2. On 25 October 2019 a delegate of the Minister for Home Affairs refused to grant Mr Mahmood and his family Business Skills (Residence) (Class DF) visas under s 65 of the Migration Act 1958 (Cth) (the Act). Mr Mahmood then applied for a review of that decision.

3. At the time of application, Class DF contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and Subclass 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 (Cth) (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.

4. The secondary applicants applied based on being members of the family unit of Mr Mahmood. The delegate found the secondary applicants could not be granted Subclass 892 visas as they did not meet the primary criteria, nor did they meet the secondary visa criterion (cl.892.321) requiring them to be members of the family unit of a person who met the primary visa criteria.

5. Clause 892.211(1) of Schedule 2 to the Regulations requires the applicant for a Subclass 892 visa to have had, and continue to have, an ownership interest in one or more actively operating main businesses in Australia for at least 2 years (emphasis added) immediately before the application is made. Mr Mahmood nominated Campania General Store as his business. Later in his evidence he claimed to have a second business, an import-export business, which he asserted he operated from 2014 until he purchased Campania General Store. Mr Mahmood also claimed he worked pro bono for a Turkish restaurant called Anatolia in Hobart. He said he intended to buy this business and ‘walked away’ from it when he found it was underpaying its workers and had issues with the Fair Work Commission.

6. The delegate in this case refused to grant the visas on the basis Mr Mahmood did not satisfy the requirements of cl.892.211(1) because he had not held an ownership interest in his nominated main business, Campania General Store, for at least two years before the time of application on 6 April 2018. Settlement of the purchase of the business occurred on 21 November 2016, that is, just over seven months into the two-year period required by cl.892.211(1). It seems the delegate was unaware of the asserted import-export business or the possibility of Anatolia Turkish restaurant as an alternate business. As will be seen later in this decision, only two businesses can be nominated, and both must have been actively operating for at least two years before 6 April 2018.

7. Mr Mahmood appeared before the Tribunal on 7 June 2022 to give evidence and present arguments (the Hearing). He as represented in relation to the review by Mr Charles Camidge who also attended the Hearing.

1. Mr Mahmood and Mr Camidge attended the Hearing by video link facilitated by the Tribunal utilising Microsoft Teams. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

2. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

BACKGROUND

What evidence was considered by the Tribunal?

10.  The Tribunal had before it the following evidence:

1.     Department File	Digitised file of 812 pages provided by the Department of Home Affairs.
2.     Tribunal File	Digitised file of 250 pages comprising various documents provided to the Tribunal including the Pre-hearing submissions referred to below.
3.     ASIC Search	Search of the records of the Australian Securities & Investments Commission (ASIC) in relation to Data Hajvairy Pty Ltd ACN 168 815 370 conducted by the Tribunal on 6 June 2022.
4.     Movement Records	Search of the records of the Department of Home Affairs in relation to Adnan Mahmood conducted by the Tribunal on 29 March 2022 to ascertain the days onshore and offshore during the two years immediately prior to the time of application.
5.     Pre-hearing submissions	Submissions received in November 2019 and March 2022 including submissions form Mr Mahmood and his accountant, financial statements, BAS and various employee records.

11.  The Tribunal has considered all the material supplied to it and the evidence produced by the Applicant. Not all the evidence is referred to at length in this decision. That does not mean it has not been considered in determining the outcome. It is sometimes impractical or unnecessary to canvass all aspects, arguments, and history of a case in the decision record.

12.  The Tribunal notes, where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[1]

[1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).

13.  To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the policy is consistent with the requirements as set out in the legislation as it would be an error of law for the Tribunal to state it must (emphasis added) follow what policy says concerning the scope or meaning of a provision in the Act or Regulations.

14.  At the Hearing, several issues requiring clarification about this case were identified to Mr Mahmood and Mr Camidge. Mr Mahmood was offered 28 days to 5 July 2022 to provide submissions about those issues if he wished to do so. No post-hearing submissions were received from either Mr Mahmood or Mr Camidge.

CONSIDERATION OF CLAIMS AND EVIDENCE

15.  The issue in this case arising from the delegate’s decision concerns the ownership interest of Mr Mahmood in the nominated main business, Campania General Store. The business was purchased from an arms’ length vendor and settlement occurred on 21 November 2016. However, in reviewing the Pre-hearing Submissions and from his evidence at the Hearing, it became clear Mr Mahmood had since closed Campania General Store in which case another issue was his ability to satisfy the time of decision criteria under cl.892.221(a).

16.  In his evidence, Mr Mahmood explained he also operated a scrap metal business with the product exported to Pakistan, which he said he commenced in 2014. This business was also referred to by Mr Mahmood and Mr Camidge as the import-export business possibly involving export of fruit and vegetables to Pakistan. The Tribunal considers the reference to the import-export business and the scrap metal business to be one and the same.

17.  Case law has established a business is not a legal entity but rather an enterprise or undertaking.[2] It is therefore important for the Tribunal to identify the business to which the definition of main business must be applied. It is also important to note that one business can be owned by multiple entities and conversely, multiple businesses can be owned by one entity. For the avoidance of doubt, an Australian Business Number (ABN) attaches to an entity, not to a business.

[2] Ibrahim v MIAC [2009] FCA 1328 at [30].

Ownership interest in main business

18.  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.[3] No more than two businesses can be nominated for this purpose.[4] Either or both businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion.[5]

[3] Clause 892.221(a).

[4] Reg 1.11(2).

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

19.  The businesses relied on by Mr Mahmood to satisfy these requirements are an import-export business and Campania General Store. Mr Mahmood states Campania General Store is owned and operated by Data Hajvairy Pty Ltd ACN 168 815 370 (Data Hajvairy). On the Form 1217 lodged with the Application there is no mention of a scrap metal or vegetable export business with the major actively described as:

‘We are the only seller of fresh local fruits, vegetable, meat, groceries, fuel and tobacco and hot food etc.’

20.  The business identified as Anatolia Turkish Restaurant has not been considered by the Tribunal because only two businesses can be nominated, and Mr Mahmood did not proceed with its purchase after working on a pro bono basis in April and May 2016 before he ‘walked away’ from it in June 2016 when he discovered it was underpaying its employees and had issues with the Fair Work Commission.

21.  The Tribunal has considered the claim by Mr Mahmood he operated the import-export business even though it was not mentioned in the Application. Mr Mahmood said in his evidence the import-export busines was operated in Hobart and there were a few transactions which were initially missed from the Business Activity Statements (BAS). He also said none of those transactions were conducted through the company, Data Hajvairy, which is confusing since the only BAS provided for this application are those for Data Hajvairy.

22.  Accordingly, the Tribunal must consider the nature of Mr Mahmood’s interest in the import-export business and Campania General Store, whether the businesses were actively operating and whether they 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 also considered these issues as at the date of this decision and whether Mr Mahmood continues to satisfy cl.892.211(1).

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

23.  An ‘ownership interest’, in relation to a business, means an interest in the business as:

·a shareholder in a company that carries on the business, or

·a partner in a partnership that carries on the business, or

·the sole proprietor of the business.

including such an interest held indirectly through one or more interposed companies, partnerships or trusts.[6] Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of the Regulations, which are set out in the attachment to this decision.[7]

[6] Reg 1.03 of the Regulations and s 134(10) of the Act.

[7] Reg 1.11A(1).

24.  To meet cl.892.211(1) the Tribunal must be satisfied Mr Mahmood had an interest of this kind in the relevant business or businesses both at the time of making the application and for the two years immediately before. 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.

25.  Data Hajvairy Pty Ltd ACN 168 815 370 was registered on 28 March 2014. Mr Mahmood has been a director and secretary since then. Mr Javed was appointed a director on registration and resigned on 11 July 2016. He was reappointed as a director on 26 October 2019.

26.  Mr Mahmood and Mr Javed are the current shareholders each beneficially holding 2 ordinary fully paid shares of $1.00. The ASIC Search suggests Mr Javed originally held 1 ordinary share which he relinquished when he resigned as a director in July 2016. Then in November 2019 he acquired the 2 ordinary shares he currently holds creating the situation today where Mr Mahmood and Mr Javed each hold 2 ordinary shares. The Tribunal is satisfied Mr Mahmood has held at least a 50% interest in Data Hajvairy since registration.

27.  The Tribunal notes the contract to purchase Campania General Store was entered into by Data Hajvairy on 18 November 2016.[8] Settlement took place on 21 November 2016.[9] Despite his conflicted evidence, the Tribunal accepts the import-export business was owned and operated by Data Hajvairy.

[8] See letter dated 21 December 2016 from John M. Mountford solicitor included in the Department File.

[9] See letter dated 21 November 2016 from John M. Mountford solicitor included in the Department File.

28.  Accordingly, the Tribunal is satisfied Mr Mahmood did have and does have an ownership interest in the nominated business (Campania General Store) and the import-export business at all relevant points in time.

Import-export business

29.  Mr Mahmood’s accountant is Mr Stuart Lenthall of Parker Accounting and Financial Services (previously The Tax Counter). Mr Lenthall provided two letters of explanation about the business affairs of Mr Mahmood. On 26 February 2018, Mr Lenthall confirmed Data Hajvairy was formed in March 2014. Mr Javed was at various times a director and shareholder with Mr Mahmood. He confirmed this in his letter of 12 November 2019 in which he implies the company name is a business name yet the ABN record for Data Hajvairy shows the only business name is Campania General Store.

30.  In the 2018 letter Mr Lenthall says:

‘The reason for Nil BAS's and Company tax losses has been due to Mr Mahmood's expenses incurred in extensive researching and undertaking due diligence in the prospective purchase of three separate businesses and researching the potential for exporting food products from Australia to Pakistan.’

31. Then in his 2019 letter, Mr Lenthall says:

‘The company registered for GST on the basis that an earlier prospective business would be successful. On 1 April 2014, the business changed direction as the previous business direction was proving not to be successful. The new direction involved the purchasing and selling of groceries and vegetables. Adnan through his company, Data Hajvairy Pty Ltd, leased the Campania General Store on 21 November 2016.’

32.  On or about 21 November 2021, Mr Mahmood lodged an undated submission in which he says:

‘BAS statements are attached which cover the 24-month required period and prior to the period 1 April 2016 to 30 June 2016 when I was actively trying to establish an IMPORT & EXPORT business. Despite the period 1 April 2016 to 30 June 2016 showing NIL (Due to very small transactions which I forget to report but I have found Purchase and Sale Receipt and I have revised my BAS for June QTR) it is still relevant that I was operating a business as evidenced from the BAS returns lodged.’

33.  The amended BAS for June and September 2016 show sales net of GST of $182 and $788 and non-capital purchase of $217 and $707 respectively. These BAS are for Data Hajvairy even though Mr Mahmood says the transactions of the import-export business did not pass through that company. Whilst the level of sales is not in and of itself conclusive as to the existence or otherwise of a business, it is a strong indicator, and these sales and purchases, for whatever business Mr Mahmood says they relate to, are insufficient to indicate the existence of an actively operating business because they are so small, especially when viewed in conjunction with his evidence when he said he was searching for import-export opportunities by contacting parties in Australia while he closed his business in Pakistan however he had no success (emphasis added) and proceeded to look for a business to purchase. In summary, Mr Mahmood states he was trying to establish an import-export business rather than operating one.

34.  Mr Lenthall says Mr Mahmood was researching and undertaking due diligence on the prospective purchase of three separate businesses and the business changed direction on 1 April 2014 (presumably away from the import-export business) to purchasing and selling groceries. The reference to 2014 is likely an error as Data Hajvairy was only registered in March 2014. The more likely scenario is the business changed direction around April 2016 when Mr Mahmood set about finding a business to purchase (from the three he was evaluating) which culminated in the purchase of Campania General Store on 21 November 2016.

35.  The Tribunal finds the import-export business was not actively operating at any time during the two years immediately before the time of application because of the very limited transactions during that period and the evidence of Mr Mahmood he was trying to establish an import-export business rather than operating one. As the Tribunal has found the import-export business was not actively operating during that period, it cannot satisfy the requirements of cl.892.211(1).

36.  The reappointment of Mr Javed as a director of Data Hajvairy on 26 October 2019 was, according to Mr Mahmood, to help manage the import-export business and there were no transactions in that business after his reappointment.

37.  The Tribunal notes cl.892.221(a) may be satisfied by one of the two main businesses nominated at the time of application. Departmental policy accepts the 24-month period of ownership for the purpose of cl.892.211(1) can be satisfied through consecutive ownership of businesses where one main business may not have been owned for the full 24-month period. Mr Mahmood mildly asserted at the Hearing he satisfied cl.892.211(1) with the import-export business from April 2016 until the purchase of Campania General Store in November 2016. The Tribunal has considered whether the consecutive ownership of the claimed two main businesses could satisfy the relevant cl.892.211(1) period and is not satisfied Mr Mahmood can meet the criterion with the import-export business as it was not actively operating.

38.  Mr Mahmood concluded his evidence about the import-export business by saying there had been no transactions since the onset of COVID-19 once he returned to Pakistan in March 2020 whereas Mr Camidge stated at the hearing: ‘the import-export business had already closed before the purchase of Campania General Store’. Given the clear statements by both Mr Mahmood and Mr Camidge the import-export business closed no later than March 2020, the Tribunal will consider it no further as it clearly cannot meet the requirements of cl.892.221(a) even if it met the requirements of cl.892.211(1), which the Tribunal has found has not been met.

Campania General Store

39.  Whilst the Tribunal is satisfied Campania General Store was owned by Data Hajvairy from settlement on 16 November 2014, the difficulty for Mr Mahmood is satisfying the ownership interest requirement of cl.892.211(1) for the whole of the two years immediately before the time of application on 6 April 2018.

40.  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.[10] For Mr Mahmood, the Application Period, being the two years immediately before the time of application, runs from 6 April 2016 to 5 April 2018, which means, the contract to purchase Campania General Store was entered into fully seven months into the Application Period and the time spent looking for and evaluating existing businesses to purchase, including Anatolia Turkish Restaurant, does not constitute being in business.

[10] Zhou v MIMIA [2003] FMCA 169.

41.  Mr Mahmood asserts he commenced looking for a business to purchase in April 2016, which is corroborated by Mr Lenthall. Returning to Zhou, the court agreed with earlier findings of the Migration Review Tribunal, now the Administrative Appeals Tribunal, the ownership interest of an applicant in a nominated business commences 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.

42.  Further, the Tribunal did not accept the submission of the applicant in Zhou that he should somehow be deemed to have acquired an ownership interest in the business at a date earlier than the settlement date based on time spent by him from the time the offer to purchase the business was made, 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 and the court found an applicant does not become the proprietor of a business until the settlement date fixed by the contract being the date on which the balance of the purchase price was paid.

43.  In Zhou, the applicant also 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.

44.  Accordingly, the Tribunal is not satisfied Campania General Store can meet the requirement for Mr Mahmood to hold an ownership interest in an actively operating main business for at least two years immediately before the application was made (emphasis added). The evidence of Mr Camidge was the import-export business ceased prior to the purchase of Campania General Store (even though Mr Mahmood says there were no transactions after March 2020 despite reappointing Mr Javed as a director in October 2019). Mr Mahmood has not provided any evidence the import-export business was actively operating from April 2016 until its closure ‘before the purchase of Campania General Store’. The transactions were so few that Mr Mahmood omitted to include them in the relevant BAS perhaps because he was consumed with the evaluation of three businesses to purchase at that time.

45.  Therefore, Mr Mahmood does not meet cl.892.211(1) because the ownership of Campania General Store by Data Hajvairy commences on 21 November 2016 and there is insufficient evidence to establish the import-export business was ever actively operating from April 2016 to November 2016. This means neither business was held for two years immediately before the application was lodged on 6 April 2018.

Continuing to have an ownership interest in an actively operating main business

46.  Even if Mr Mahmood had satisfied cl.892.211(1), cl.892.221(a) requires at the time of this decision, he continues to satisfy the criteria in clauses 892.211 and 892.214. Whilst cl.892.214 has not been tested in this decision, the Tribunal has considered whether Mr Mahmood continues to meet the requirement that he has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia.

47.  The Tribunal has already found the import-export business ceased operating either by April 2016 or before March 2020. Either way it is no longer operating at the time of this decision.

48.  In his evidence at the Hearing, Mr Mahmood said he returned to Pakistan in March 2020 for his usual visit of around 10 to 15 days.[11] While he was there the border closures in Australia arising from the outbreak of the COVID-19 pandemic prevented him from returning to Tasmania. His bridging visa expired on 7 February 2021 and he says he can no longer get a replacement bridging visa to enable him to return and he has been in Pakistan ever since.

[11] Departmental records shown Mr Mahmood left Australia on 25 February 2020.

49.  He says in his absence Campania General Store was initially managed by the staff and by Mr Javed and another friend until the business closed. During this time, the landlord refused to repair the fuel pumps even though they were required to do so under the premises lease. The landlord also claimed there were arrears of rent which Mr Mahmood denies, that is, he says the rent was paid up to date.

50.  Data Hajvairy was given a notice to leave the premises, which effectively ended the business. Mr Mahmood says his friend took all the stock and equipment from the store and said he ‘got nothing for it’. Mr Mahmood said he does not believe his friend’s account of the disposal. In any event, Data Hajvairy had no premises and its stock and equipment had been disposed of. As Mr Mahmood said at the hearing, both businesses were by then closed.

51.  The requirement of cl.892.221(a) is the applicant (Mr Mahmood) continues to satisfy cl.892.211. That is a temporal requirement. It is not sufficient for this criterion to be satisfied at the time of decision with a break since time of application. It requires the ownership interest in the business to continue throughout the time from application to decision. By his evidence, both businesses were closed sometime after he returned to Pakistan in February 2020. Given the findings above, Mr Mahmood does not continue to satisfy the requirements in cl.892.211(1) at the time of this decision.

52.  Accordingly, the decision under review must be affirmed because:

(a)  The evidence the import-export business was ever actively operating is limited at best and by his evidence, Mr Mahmood said he was trying to establish the business rather than he had established the business. Even after the reappointment of Mr Javed as a director of Data Hajvairy in October 2019 there were no transactions,

(b)  Anatolia Turkish Restaurant cannot count as a main business because it was never purchased and, in any event, no more than two businesses can be nominated to satisfy cl.892.211(1),

(c)   Campania General Store did not become owned by Mr Mahmood until 21 November 2016, which was more than seven months into the two-year period immediately before the time of application so it cannot satisfy the requisite two-year ownership period,

(d)  Even if Campania General Store and the import-export business did meet the requirements of cl.892.211(1), which the Tribunal says they did not, the evidence of Mr Mahmood is that both businesses were closed prior to the Hearing, so cl.892.221(a) cannot be met.

53.  The Tribunal must also affirm the decision not to grant the secondary applicants Subclass 892 visas as they do not meet the secondary visa criterion (cl.892.321) requiring them to be members of the family unit of a person who holds a Subclass 892 visa, and there is no evidence they meet the primary visa criteria for this subclass.

decision

The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Peter Ranson
Member

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

1. Cancellation 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.