This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 October 2018 to refuse to grant the visa applicant a Business Innovation and Investment (Provisional) (Extension) Subclass 188 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the Subclass 188 visa in the Business Innovation Extension stream on 10 April 2018. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy cl.188.232(1) of Schedule 2 to the Migration Regulations (the Regulations) as the delegate was not satisfied that the applicant had an ownership interest in one or more main businesses that were actively operating in Australia for at least two years immediately before the application was made.
The applicants appeared before the Tribunal on 28 September 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant provided further documents after the hearing, which the Tribunal has had regard to in its considerations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies the requirements of cl.188.232 which require that, for at least the 2 years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia: cl.188.232(1). In addition, the applicant must continue to have the ownership interest mentioned in subclause (1): cl.188.232(2)
The applicant applied for the Subclass 188 (Extension) visa on 10 April 2018. The relevant two years immediately before the application was made is therefore between 9 April 2016 and 10 April 2018.
When applying for the visa, the applicant nominated Australian Silverwater Pty Ltd (Australian Silverwater) which was registered with the Australian Securities and Investment Commission (ASIC) in June 2014. Australian Silverwater commenced operating a restaurant business (the Mao Restaurant) in November 2015. The restaurant business ceased operating in October 2016, after which the applicant commenced operating a trade business which was involved in exporting goods from Australia to China. In a statement to the Department, the applicant stated that trade business commenced operating in April 2017.
In support of the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Business Innovation and Investment (Provisional) (Extension) Subclass 188 visa. The primary applicant's eligibility for the visa was in question, and the second applicant's eligibility was contingent on the first applicant's.
The central legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 188.232 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had held an ownership interest in one or more main businesses that were actively operating in Australia for at least two years immediately preceding the visa application, and if that ownership interest continued. The Tribunal also considered the definition of a "main business" and "qualifying business" under the Regulations.
The Tribunal's reasoning focused on the applicant's business activities in the period between 9 April 2016 and 10 April 2018. The applicant had operated a restaurant business through Australian Silverwater Pty Ltd from November 2015 until October 2016. Following the restaurant's closure, the applicant commenced an export business, which she stated began operating in April 2017. The Tribunal noted that the export business's sales were exclusively to Nanjing Weizhou Airline Food Corp, a company formerly owned by the applicant and her ex-husband, and not to the public. Furthermore, the Tribunal observed that the business had ceased current activity due to COVID-19 and Chinese government import restrictions. The Tribunal concluded that the applicant had not demonstrated the required ownership interest in an actively operating main business for the specified two-year period.
Consequently, the Tribunal affirmed the decision not to grant the Business Innovation and Investment (Provisional) (Extension) Subclass 188 visa to the applicants. As the primary applicant did not meet the visa requirements, the secondary applicant, who applied as a member of the family unit, also did not qualify.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant satisfies the requirements of cl.188.232 which require that, for at least the 2 years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia: cl.188.232(1). In addition, the applicant must continue to have the ownership interest mentioned in subclause (1): cl.188.232(2) The applicant applied for the Subclass 188 (Extension) visa on 10 April 2018. The relevant two years immediately before the application was made is therefore between 9 April 2016 and 10 April 2018. When applying for the visa, the applicant nominated Australian Silverwater Pty Ltd (Australian Silverwater) which was registered with the Australian Securities and Investment Commission (ASIC) in June 2014. Australian Silverwater commenced operating a restaurant business (the Mao Restaurant) in November 2015. The restaurant business ceased operating in October 2016, after which the applicant commenced operating a trade business which was involved in exporting goods from Australia to China. In a statement to the Department, the applicant stated that trade business commenced operating in April 2017. In support of the application, the applicant provided various documents including the following for the Mao Restaurant:·ASIC registration for Australian Silverwater and ABN Lookup confirming the company’s ABN and GST registration. ·An unsigned Contract of Sale of Business for the purchase of the restaurant business (formally named Fusion House) by Australian Silverwater Pty Ltd, together with evidence of deposit and photographs of the restaurant business. ·Statement from the applicant regarding her management of the restaurant business, together with various emails, bills, invoices, purchase receipts, insurance documents, menu, financial information and an organisational chart. In her written statement, the applicant provided details about the closure of the Mao restaurant and her decision to establish a trade company. She stated that based on her experience, she thought she would be better at exports and commenced exporting butter and beef to China. The applicant also provided various documents as evidence of her trade business, including the following:·Invoices issued by JBS Australia Pty Ltd for shipments of goods purchased by Australian Silverwater for delivery to Nanjing Weizhou Airline Food Corp in Nanjing City, dated from 1 April 2017 to July 2017, including various declarations, official certificates, packaging lists and batch number certificates for goods/meat products to be shipped. ·Certificate of Origin for the export of beef products to China, issued on 21 June 2017, indicating the importer as Nanjing Weizhou Airline Food Corp. ·Bills of Lading for beef products to be shipped to Nanjing Weizhou Airline Food Corp, dated 20 June 2017. ·Invoices issued by Ballantyne Foods Pty Ltd (exporter) to the buyer (Australian Silverwater), noting the consignee as Nanjing Weizhou Airline Food Corp, dated 10 March 2017, 25 July 2017 and August 2017, together with evidence of bank transfers to Ballantyne Foods dated 10 April 2017, 20 July 2017 and 31 July 2017 for amounts ranging from $21,900 to $69,000. An invoice issued by exporter Ballantyne Foods to Nature Resources Pty Ltd (located in Victoria, Australia) who is noted as both the buyer and consignee. ·Purchase contract between Ballantyne Foods (Seller) and Australian Silverwater (Buyer) noting the consignee as Nanjing Weizhou Airline Food Corp for the purchase and shipping of butter to China to the value of AUD65,700. ·Purchase contract between Lannister Wine Pty Ltd (Seller) and Australian Silverwater (Buyer) dated November 2017, together with an invoice issued by Lannister Wine to Australian Silverwater dated 30 November 2017.·Sale confirmation and invoice issued by JOC Australia Pty Ltd for purchase of beef products by Australian Silverwater dated February 2018, together with evidence of funds transfer from Australian Silverwater to JOC Australia Pty Ltd dated March 2018. ·Commonwealth Bank Business transaction account for Australian Silverwater dated from 1 April 2017 to 30 June 2017, and from 1 October 2017 to 31 December 2017. ·Commonwealth Bank USD Business Foreign Currency account dated from 1 July 2017 to 30 September 2017. ·Financial information for Australian Silverwater for the 12 months period ended 31 March 2018. ·Purchase contracts between Australian Silverwater (Seller) and Nanjing Weizhou Airline Food Corp dated 10 February 2017 and 26 May 2017. ·Sales contract between Australian Silverwater (Seller) and Wuhan Fortune Star Trading Co. Ltd dated 31 November 2017. ·Australian Taxation Office (ATO) Integrated client account for the period from 19 April 2015 to 31 May 2018, showing that the processing date for the transactions were from 19 April 2018 to 26 April 2018.
Decision
Reasons for decision
The second named applicant applied for the visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not meet one of the requirements for the grant of the visa, it follows that the decision in respect of the secondary applicant must also be affirmed. DECISION The Tribunal affirms the decision not to grant the applicants Business Innovation and Investment (Provisional) (Extension) Subclass 188 visa.R. SkarosSenior MemberATTACHMENT - LEGISLATIONMigration Regulations 19941.03Definitions 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 1958134Cancellation 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.
