Mao (Migration)

[2021] AATA 3937

Mao (Migration) [2021] AATA 3937 (14 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yue Mao
Mr Weilong Luo

CASE NUMBER:  1832309

HOME AFFAIRS REFERENCE(S): BCC2018/1606174 BCC2018/5857282

MEMBER:R. Skaros

DATE:14 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Business Innovation and Investment (Provisional) (Extension) Subclass 188 visa.

Statement made on 14 October 2021 at 12:20pm

CATCHWORDS

MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business and Investment (Provisional) (Extension) – ownership interest in actively operating business for two years and continuing – 100% ownership of company – operation of restaurant then export business, with six-month gap – sales to only one company, formerly owned by applicant and ex-husband, and not to the public – no current activity because of COVID-19 and Chinese government’s restrictions on imports from Australia – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 134(10)

Migration Regulations 1994 (Cth), rr 1.03, 1.11, 1.11A, Schedule 2, cl 188.232(1), (2)

CASE

Shahpari v MIBP [2016] FCCA 513

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 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).

2. 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.

3. 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.

4. The applicant provided further documents after the hearing, which the Tribunal has had regard to in its considerations.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. In her statement to the Department, the applicant stated that restaurant business ceased operation on 6 October 2016 and the trade business commenced operation on 18 April 2017. She stated that during the gap from 7 October 2016 to 17 April 2017, she prepared the closure process for the restaurant and commenced market research to start the new trade business between the Australian and Chinese markets. She merged resources and discussed cooperation matters with new suppliers.

13. The delegate considered that as there was a gap of 6 months, from October 2016 to April 2017, between the operation of the two businesses in Australia, the applicant did not have an ownership interest for at least 2 years immediately before the application was made in one or more actively operating businesses in Australia.

14. On review, the applicant provided copies of documents relevant to the business activities of Australian Silverwater, most of which had already been provided to the Department. The applicant highlighted the document dated 10 February 2017, being the purchase contract between Australian Silverwater (Seller) and Nanjing Weizhou Airline Food Corp, and the invoice issued by Ballantyne Foods on 10 March 2017, which she stated demonstrates that the trading company has operated since February 2017. The applicant submitted that the gap from 16 October 2016 to 10 February 2017 fell during the Christmas and New Year holiday period, as well as Chinese New Year holidays, when she could hardly carry out business activities.

    Hearing evidence and discussion of issues

15. At the hearing, the applicant gave evidence that she set up the Mao Restaurant business under Australian Silverwater Pty Ltd in November 2015. She stated that she was not familiar with the market in Australia and the business was a failure. She stated that the business closed in October/November of 2016. When asked about the trade business, the applicant gave evidence that due to Chinese New Year, which is an important holiday period, it was not until January/February of 2017 that she began negotiating some projects which were not going to proceed until April/May. She stated that she operated a successful export business which had a turnover of $600,000 to $700,000. She exported beef, butter, and wine products to China. When asked approximately how many transactions (exports) she had arranged in the two years immediately before the application was made, she indicated that she was unsure but confirmed that it would have been between 5 to 10 transactions.

16. The Tribunal asked the applicant who she had exported the products to in China, to which she stated the Nanjing Weizhou Company and another company in Wuhan. When asked if that company was owned or operated by any family members, she stated no. The Tribunal observed that in her application forms (Form 80) she had provided details of her employment history, which indicated that she worked as the General Manager of the Nanjing Weizhou Food Co. Ltd. The applicant stated that this was correct and explained that the company use to be owned by her and her ex-husband, but they have since sold the company to a Singapore Cargo company. She stated that she still has a good relationship with the salesperson and decided to do business with the company (Nanjing Weizhou Airline Food Corp). The Tribunal noted that the invoices/receipts issued in the relevant two-year period and the funds received, as indicated by the business’ bank records, indicate that the business had only traded with Nanjing Weizhou Airline Food Corp. The applicant stated that they had also exported to a company in Hong Kong and had a few transactions with a company in Wuhan.

17. The Tribunal observed that the business bank account statements provided for the period from 1 April 2017 to 30 June 2017 and from 1 October 2017 to 31 December 2017, indicate that funds had been received from only one entity, namely, Nanjing Weizhou Airline Food Corp which raises the concern that the trade business may not be a ’qualifying business’, as it does not appear to derive its profit through the provision of goods and/or services to the public. In further explaining this, the Tribunal noted that if in the relevant period the applicant’s trade business was involved in selling goods to one main entity in China, then the Tribunal may not be satisfied that she could rely on the trade business to satisfy the requirements. In response, the applicant stated that she had one reliable company, she had also exported to a company in Hong Kong and Wuhan but because of the pandemic she was unable to continue those business activities.

18. When asked whether she continues to operate the trade business, the applicant stated that due to the pandemic she has been unable to do so. When asked when the last time the trade business had conducted trade activities, she stated at the end of 2018. The Tribunal noted that the COVID-19 pandemic was not an issue until February/March of 2020, she then stated that she meant the end of 2019. The Tribunal noted that she is required to continue to have an ownership interest in at least one of the businesses she nominated and that she may not satisfy the requirements for the visa if both the businesses she relied on, being the restaurant business and the trade business, are not longer operating. The applicant reiterated her explanations as to why those businesses are no longer actively operating, and stated that she has commenced a new business, namely a cleaning services business. She also stated that she is in the process of establishing a renovation services business. 

19. The Tribunal explained to the applicant, that she may not satisfy the requirements for the Subclass 188 Extension visa due to the following issues; Firstly, there was a gap in the two year period immediately before the application was made during which there was no actively operating business in Australia; Secondly, the second business she has relied on (the trade business) may not be a qualifying business as it was not involved in the provision goods and/or services to the public; Thirdly, that as neither of the businesses relied on at the time of application are actively operating, she may not satisfy the requirement that she continue to have an ownership interest in at least one of the main businesses which operated in the two years immediately before the application was made.

20. In response, the applicant explained that she could not continue to operate the restaurant business due to financial losses and the trade business was affected by the pandemic and China’s restrictions on accepting beef and wine from Australia, which she stated were factors beyond her control. In relation to her business’ trade with the Nanjing Weizhou Airline Food Corp, she stated that the business has nothing to do with her. While she started trade with this company, she came to know that beef and wine are in demand products, so she developed the business with a Hong Kong company which was going well until the pandemic and trade sanctions. She stated that the Nanjing Weizhou Airline Food Corp is a large company which distributes to smaller businesses in China and had the capacity to purchase beef and butter due to their cold storage facilities, and large containers and warehouses.

21. In relation to the restaurant and trade businesses, the applicant stated that she has had a few setbacks in Australia, she applied for the extension of the Subclass 188 visa so that she can meet the requirements and has been here for over 6 years and if she gets the opportunity to stay she will have sufficient funds and develop her current businesses.

22. The applicant was granted an extension of time to provide business activity statements for the two years before the application was made and to provide evidence about her claims to have also sold goods to companies in Hong Kong and Wuhan.

23. Following the hearing, the Tribunal received various documents evidencing the business’ trade activities including purchase agreements, sales agreements, invoice/receipts, shipping documents and business bank account statements. The documents were dated from 2017 to 2019 and are relevantly discussed further below.

    Consideration

24. The Tribunal has carefully considered all the evidence before it, but for the reasons that follow, the Tribunal has concluded that the applicant does not satisfy various aspects of the requirements in cl.188.232.

25. The businesses (or enterprises) relied on by the applicant to satisfy the requirements for the Business Innovation (Extension) Subclass 188 visa are the restaurant business (Mao Restaurant) and the trade business. The Tribunal considers that these were the only two businesses that existed in the two years immediately before the application was made. The Tribunal acknowledges the applicant’s claim that she has also set up a cleaning business and that she is in the process of developing a renovations business, however, as these businesses were not established until after the visa application had been made, the Tribunal has not considered these businesses for the purpose of assessing whether the applicant satisfies the requirements in cl.188.232.

26. Firstly, the Tribunal has considered the nature of the applicant’s interest in these businesses. The evidence before the Tribunal indicates that the applicant has held 100% of the shares in Australian Silverwater Pty Ltd. That company carried on the restaurant business and the trade business, as such the Tribunal is satisfied that the applicant had an “ownership interest”, as defined in s.134(10) of the Act, in the businesses relied upon.

27. The Tribunal has next considered whether each of the businesses relied on meet the definition of “main business”. The term ‘main business’ is defined in r.1.11 of the Regulations and is set out in full in the attachment to this decision. There are four elements to the definition, each of which must be satisfied for a business to be a main business.

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

29. Secondly, the applicant must maintain or have maintained direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business.

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

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

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

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

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

31. For the restaurant business, as found above, the Tribunal is satisfied that the applicant had an ownership interest in that business. Therefore r.1.11(1)(a) has been met.

32. The applicant has also provided evidence which demonstrates that she had maintained direct and continuous involvement in management of the restaurant business on a day to day basis, including making decisions that affect the overall direction and performance of the business, including taking a decision to close the business due to losses. Therefore r.1.11(1)(b) has been met.

1. In relation to the requirement in r.1.11(1)(c), the Tribunal notes that given the limited financial evidence before it, which is discussed further below, the Tribunal is unable to ascertain the annual turnover of the restaurant business. In any case, on the evidence before it, the Tribunal finds that the business, which is not operated by a publicly listed company, regardless of its turnover, is one in which the applicant, as 100% shareholder of the company (namely Australian Silverwater Pty Ltd) that carried on the business, had at least 30% of the value of the business (in the event the annual turnover was at least AUD 400,000) or 51% of the value of the business (in the event the annual turnover was less than AUD 400,000). Therefore r.1.11(1)(c) has been met.

2. The evidence before the Tribunal also indicates that the restaurant business was involved in providing food services to the public. The Tribunal is accordingly satisfied that the restaurant business was operated for the purpose of making profit through the provision of goods/food services to the public and was not operated primarily or substantially for the purpose of speculative or passive investment. Therefore r.1.11(1)(d) has been met.

3. Given the above, the Tribunal is satisfied that the restaurant business was a main business in relation to the applicant.

4. For the trade business, the Tribunal is also satisfied, as found above, that the applicant had an ownership interest in that business. The Tribunal is also satisfied on the evidence before it that the applicant had maintained direct and continuous involvement in the day to day management of the business and that she had made decisions affecting the overall direction and performance of the business. In relation to the value of the applicant’s ownership interest in the business, the applicant gave evidence that the turnover of the trade business was over AUD600,000, as this is at least AUD400,000, and as the applicant owns 100% of the shares of the company that carries on the business, it follows that the applicant’s ownership interest is at least 30% of the total value of the business. For these reasons, the Tribunal is satisfied that the trade business, met the requirements in r.1.11(1)(a), (b) and (c) of the definition of main business.

5. The Tribunal has also considered whether the trade business is a ‘qualifying business’, as it raised this with the applicant as an issue of concern at the hearing. A ‘qualifying business’ is defined as an enterprise that is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public, and is not operated primarily or substantially for the purpose of speculative or passive investment: r.1.03.

6. The evidence before the Tribunal for the relevant two-year period, being from 10 April 2016 to 10 April 2018, indicates that the applicant derived its income from export sales to one entity in Nanjing China (Nanjing Weizhou Airline Food Corp.) which was formally owned by the applicant and her ex-husband. The Tribunal has had regard to the evidence provided after the hearing, including agreements, commercial invoices and shipment documents dated November/December of 2017 to another entity (Wuhan Fotrune Star Trading) and exports (albeit limited) to other entities in late 2018 and 2019, including Uniocean International H.K. Limited and Nanjing Elite Food Co . The Tribunal has also had regard to the applicant’s evidence that she and her ex-husband had sold their interest in Nanjing Weizhou Airline Food Corp. and is prepared to accept that business dealings with that entity were at arms-length. In considering the evidence overall, the Tribunal is satisfied that the trade business had derived its profit through the provision of goods, being Australian beef and wine products, to several businesses in China. It follows that the trade business, for the purposes of r.1.11(1)(d), is a qualifying business.

7. Given the above, the Tribunal is satisfied that the trade business was a ‘main business’ in relation to the applicant.

8. The Tribunal is accordingly satisfied that the two businesses relied on by the applicant when she applied for the visa, namely the restaurant business and the trade business, satisfy the definition of main business for the purposes of cl.188.232.

9. The Tribunal has next considered whether the main business or businesses were actively operating in Australia, for at least two years immediately before the application was made. As the application was made on 10 April 2018, the two-year period immediately before the application was made is therefore from 9 April 2016 to 10 April 2018. The Tribunal considers that at least one of the businesses relied on by the applicant must have been actively operating during the relevant two-year period.

10. The term ‘actively operating’ is not defined in the Act or Regulations. In considering whether this requirement is met, the Tribunal may consider whether the business exhibited activity of a ‘repetitive, continuous and permanent character’ at the relevant times, in which the business actively sought to generate business, in fact generated trade and custom and derived some financial gain for its activities in the relevant period.[1]

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

11. Before considering the evidence before it, the Tribunal observes that the applicant, despite being requested by the Department, and the Tribunal on review, to provide business activity statements, had not done so. While the applicant provided the ATO Integrated client account for Silverwater Australia for the period from 19 April 2015 to 31 May 2018, the transactions indicate that the applicant had not lodged any activity statements with the ATO until April 2018. And while the transactions suggest that activity statements were eventually lodged with the ATO for various quarters, the earliest being for the December 2016 quarter, they do not indicate the level of sales (if any) that were generated in each quarter for the relevant two year period. The Tribunal notes that the business activity statements would have assisted the Tribunal in ascertaining whether, in each of the quarters during the relevant two-year period, the applicant’s businesses had generated any sales. The business activity statements would have also assisted the Tribunal in verifying the sales/income figures claimed on the financial reports.

12. In any case, the Tribunal does have other evidence before it which indicates that the applicant’s main businesses were operating for part of the two-year period. In the case of the restaurant, the applicant provided evidence of the purchase of the restaurant business as well as other documents as evidence that the restaurant was actively operating. In her statement to the Department, the applicant indicated that the restaurant closed on 6 October 2016. The Tribunal acknowledges the applicant’s later evidence to the Tribunal that the business ceased operating in October/November 2016 as she was involved in the closure process of the restaurant. The Tribunal acknowledges that the applicant may have taken some time to finalise the closure of the restaurant, however, it is clear on her own evidence that the business ceased to provide restaurant services, and thereby ceased to generate business, on 6 October 2016.

13. The applicant also claimed to have commenced the trade business in January/February of 2017. There is limited evidence before the Tribunal which indicates that the trade business commenced any activity prior to February 2017. On the evidence before it, being an agreement with Nanjing Weizhou Airline Food Corp dated 10 February 2017, the Tribunal considers that the applicant’s trade business commenced actively operating from that date.

14. There is limited evidence before the Tribunal which demonstrates that at least one of the main businesses relied on by the applicant was actively operating in Australia for the period from 7 October 2016 until 10 February 2017. The Tribunal has had regard to the applicant’s explanation that she could not carry out any business activities during this period because it was the Christmas/New Year holidays and Chinese New Year. However, there is no provision in the legislation to consider the reasons for why at least one of the main businesses relied on by the applicant was not actively operating in Australia throughout the two years immediately before the application was made. The legislation requires that for the two years immediately before the application was made that there was at least one business, in which the applicant had an ownership interest, that was actively operated in Australia.

15. For the above reasons, the Tribunal is not satisfied that, for at least the 2 years immediately before the application was made, one or more of the applicant’s main businesses, in which she had an ownership interest, was actively operating in Australia. For these reasons, the Tribunal finds that the applicant does not satisfy cl.188.232(1).

16. Further to the above, the applicant gave evidence at the hearing that the trade business ceased operating at the end of 2019. This means that, at the time of decision, the applicant has ceased to have an ownership interest in at least one of the main businesses relied upon to satisfy the requirements in cl.188.232(1). As neither of the businesses in which the applicant had an ownership continue to actively operate in Australia, it follows that, at the time of this decision, the applicant does not satisfy the requirement in cl.188.232(2). For these reasons, the Tribunal finds that the applicant does not meet cl.188.232.

17. Given the findings above, the decision under review must be affirmed.

18. 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

19. The Tribunal affirms the decision not to grant the applicants Business Innovation and Investment (Provisional) (Extension) Subclass 188 visa.

    R. Skaros
    Senior 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

    134Cancellation of business visas

    ….

    (10)     In this section:

    ….

    ownership interest, in relation to a business, means an interest in the business as:

    (a) a shareholder in a company that carries on the business; or

    (b) a partner in a partnership that carries on the business; or

    (c) the sole proprietor of the business;

    including such an interest held indirectly through one or more interposed companies, partnerships or trusts.