Nguyen (Migration)

[2020] AATA 1171

Nguyen (Migration) [2020] AATA 1171 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Thuy Van NGUYEN
Mr Bien Van Le
Ms Nguyen Phuc Anh Le
Ms Nguyen Van Anh Le
Ms Nguyen Mai Anh Le

CASE NUMBER:  1921799

DIBP REFERENCE(S):  BCC2016/3119795

MEMBER:Susan Hoffman

DATE:14 April 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first-named applicant meets:

·Cl.890.211 of Schedule 2 to the Regulations

Statement made on 14 April 2020 at 8:24am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – ownership interest in an actively operating main business – medical supply business – genuine attempt to create an export arrangement – detailed email evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 890.211

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 July 2019 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 25 May 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirement set out in cl. 890.211 of Schedule 2 to the Migration Regulations (the Regulations) which requires her to have had an ownership interest in one or more actively operating main businesses in Australia for at least two years before the application for the Subclass 890 visa was made.

3. The applicants, with the exception of Ms Nguyen Mai Anh Le, appeared before the Tribunal on 12 March 2020 to give evidence and present arguments.    

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing although a colleague of the registered migration agent attended to support the applicants.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

7. The applicants applied for Business Residence (Class DF) visas. Class DF contains a number of Subclasses, and of these the applicants applied for a Subclass 890 (Business Owner) visa.

8. The criteria for the grant of a Subclass 890 visa are set out in Part 890 of Schedule 2 of the Regulations. To be granted the visa, at least one applicant must meet the primary criteria, and the remaining applicants need only meet the secondary criteria. In this case Mrs Nguyen is the primary applicant.

9. The applicants appeared before the Tribunal, differently constituted, in relation to this Subclass 890 visa application on 20 May 2019. The Tribunal found, as set out in a decision dated 21 June 2019, that Mrs Nguyen as the primary applicant met the criteria set out in cl.890.212 and the matter was remitted to the Department for reconsideration.

10. Mrs Nguyen was operating two distinct businesses, one being a café (or cafes at different times), and the other being supply of medical equipment to Vietnam. She had worked as a medical doctor in Vietnam. The businesses were operated through the ANHS Family Trust (the Trust), the trustee of which is ANHS Fam Pty Ltd (ANHS). Mrs Nguyen was and is the sole shareholder and director of ANHS. The applicants are beneficiaries of the Trust.

11. The Trust purchased a café on 12 December 2013, which was then called Amano Café. It was renamed as Birdhaus Café. That café was sold in August 2015.

12. The Trust purchased a second café, La Cantina Café, on 6 June 2014. Mrs Nguyen submitted financial statements for the Trust for 2018/19 which show that the café was trading in that financial year. Mrs Nguyen said, and the Tribunal accepts, that the café is still operating.

13. The issue in this case is whether the applicant meets the requirements set out in cl. 890.211, which reads as follows:

    (1)   The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

    (2)   For each business to which subclause (1) applies:

    (a)    an Australian Business Number has been obtained; and

    (b)    all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.

14. The period of two years immediately before the visa application was made runs from 25 May 2013 to 24 May 2015 (the application period).

15. Whereas the delegate was satisfied that the applicant had an ownership interest in an actively operating main business in Australia, being the cafés, from at least December 2013 until the present time, the delegate was not satisfied that the applicant had an ownership interest in an actively operating main business in Australia for the period from 25 May 2013 to December 2013. That was the basis of the delegate’s refusal to grant the visas.

16. The Tribunal is satisfied that the applicant, through the Trust and AHNS, had and has an ownership interest in the businesses operated through the Trust for reasons set out at paragraph 10.

    Was there an actively operating main business in Australia from 25 May 2013 to December 2013?

17. Mrs Nguyen was running her medical supply business during the application period, via the Trust. Medical equipment and products were sourced from United States of America, United Kingdom, Japan, China and Hungary and exported from those countries to Vietnam.

18. According to a submission dated 11 March 2020, ANHS received orders from a Vietnamese company, AVL, to source particular medical equipment diagnostic products. Having sourced these products, AVL purchased them and arranged for delivery to AVL, which then distributed the goods to its customers.

19. ANHS also sourced and exported medical equipment and goods to other distributors based in Vietnam, as well as fulfilling orders from end users.

20. The administration of this business was conducted from Australia. Mrs Nguyen submitted, and this is supported by documentary evidence, that she intended to export a milk product, colostrum, from Australia to Vietnam. She said that she had been thinking about doing this in the period from May to November 2013 (approximately seven months) but gave up in November 2013 because of the difficulty getting the necessary licences from Vietnamese authorities.

21. The applicant said that during the seven months, she had jobs to do in relation to this, such as researching what would need to be done to source the product and to satisfy the requirements of Vietnamese authorities. Part of this involved setting up business relationships to source the product here in Australia. The applicant said that she purchased the product here in Australia in order to be able to take samples of it to Vietnam to show to potential customers and end-users so she could give feedback to the Australian suppliers. She said that she also needed the sample as part of the process of applying for a licence in Vietnam that would allow her to import the colostrum products into Vietnam.

22. The applicant said that she got the samples before May 2013 and also during the period from May to December 2013. The Tribunal asked her for details of the process she went through to apply for the licence. The applicant said that she had to submit documents about the product to the Vietnamese authorities and provide them with a sample for testing. After that, if they were satisfied the criteria were met, they would give grant the import license.

23. The applicant said that even though the product from developed countries was of high quality, it was still necessary to go through the certification process to get the licence.

24. The applicant said that they had set up the business plan to be enacted once the licence was granted and she spent time and energy to expand the market for an Australian product.

25. The Tribunal asked the applicant why she opened a café which was such a different business venture from exporting medical equipment to Vietnam from countries other than Australia, and also from her efforts to export colostrum from Australia to Vietnam.

26. The applicant said that it was always the intention to source and export Australian product but in the meantime, they needed to earn a living. She said that they started looking for a suitable café in about October or November 2013. They were looking in a particular location and it took a few weeks. They bought an established café which they later renamed and rebranded.

27. The applicant said that as part of the process of choosing to buy the café, she worked there before purchasing the café and there was an agreement the previous owners would train her and her husband in how to run it. The applicant gave examples of how she was involved with the café on a day to day basis, including preparing and cooking food. At the weekends she does the administration for it and the restocking with suppliers.

28. The Tribunal is satisfied that the cafes constituted an actively operating main business in Australia. The Tribunal has already recorded that the applicant has an ownership interest in the café business through the Trust and ANHS. Allowing for the period during which the applicant was searching for a suitable business, the Tribunal is satisfied that the applicant has an ownership interest in an actively operating main business in Australia from, say 1 November 2013. This leaves the period from 25 May 2013 to 31 October 2013 to consider.

29. Returning to the attempt to export colostrum from Australia to Vietnam, it was submitted that the applicant “took considerable steps to create an export arrangement whereby the medical business would export Australian manufactured colostrum products to Vietnamese Customers.”

30. Copies of emails were submitted as follows:

    ·     Email dated 3 May 2013 from Mr Andy Ren, Export Coordinator, Health Sharing Group Pty Ltd, Sydney to the applicant, acknowledging her enquiry about seeking exclusive distribution rights for colostrum products. He apologises for his late reply.

    ·     Email dated 21 May 2013 to Mr Ren from the applicant in which she specifies the particular products she is interested in and refers to purchasing some of the product as samples. She refers to the documentation required by Vietnam’s Ministry of Public Health in order for the product to be exported to Vietnam, and that this authorisation process takes months.

    ·     Mr Ren responds by email on the same day, seeking clarification of the products the applicant is interested in, and advising he will provide the necessary documentation once he gets confirmation of the products the applicant is interested in exporting.

    ·     Email dated 3 June 2013 from the applicant to Mr Ren, in which she apologises for the delay in replying. She clarifies the products she is interested in and advises she is awaiting further information from a quality assurance manager.

    ·     Email dated 6 June 2013 from Mr Ren to the applicant referring to attached documentation as required for registration.

    ·     Email dated 24 June 2013 from the applicant to Mr Ren in which she says she has read the documentation he sent her and requesting that he gets them authenticated by the Vietnamese Embassy in Australia. She wrote that she would cover any costs if there was a fee for this. The applicant asked for further information from Mr Ren as part of the authorisation process. She attached documentation related to other goods that had been successfully authorised for export to Vietnam so he could see what level of detail was required. 

    ·     Mr Ren replied the following day. He listed five documents and asked for confirmation that these were the ones the applicant required.

    ·     Email dated 26 June 2013 from the applicant to Mr Ren, confirming that these were the documents she wanted from him.

    ·     Email dated 28 June 2013 from Mr Ren to the applicant in which he sets out the steps to get the documents authorised by Vietnam’s embassy in Australia, and some of costs associated with this. The steps involve Australia’s Department of Foreign Affairs and Trade (DFAT). He notes that the services of a local solicitor were also required and he had not at the time obtained a quote for those services.

    ·     In an email dated 1 July 2013 the applicant asks Mr Ren to send her an invoice for the costs he had listed.

    ·      In an email dated 2 July 2013 from Mr Ren to the applicant, he itemises the costs which total $580 and advises how payment should be made.

    ·     In an email dated 3 July 2013, the applicant wrote that she has made the payment as requested but had yet to receive an invoice. (The applicant submitted to the Tribunal a copy of an ANZ deposit receipt for $580 dated 3 July 2013).

    ·     Mr Ren responded by email on the same day, thanking the applicant for the payment and explaining that there might be further costs and once they were finalised, he would issue an invoice. The applicant responds by email thanking him.

    ·     In an email dated 9 July 2013 from Mr Ren to the applicant, he advises that authorisation has been made by DFAT, and the documents had been sent to Vietnam’s embassy in Sydney.

    ·     In an email dated 22 July 2013 from Mr Ren to the applicant, he thanks her for the payment and advises he will forward a tracking number when something is posted. (This email suggests that there was communication between Mr Ren and the applicant between 9 and 22 July 2013 in addition to the emails submitted to the Tribunal.)

    ·     In an email dated 26 September from the applicant to Mr Ren, she advises him that there is good news in that Vietnamese authorities have accepted the documents, and the Health Ministry was testing the colostrum samples. She wrote that if all went well, she would expect to get import licence in a month, and that in the meantime, she was working on marketing the product to customers.

    ·     Mr Ren responds on 15 October 2013. He apologises for the delay in replying as he had been on leave for two weeks, and suggested if the licence would be granted soon, now would be a good time to start discussing the detail of the volume of goods to be purchased, the marketing plan and so forth.

    ·     On 18 October 2013, Mr Ren emails the applicant asking how everything was going, and if she had a sales plan to distribute the product.

    ·     On 21 October 2013, the applicant responds by setting out what she would like Mr Ren to provide to assist with marketing the product in Vietnam, such as catalogues and video clips; and that the initial order after getting the licence would be 500 boxes of each type of product.

    ·     Mr Ren responds the same day regarding the advertising material that is available, and that the lead time for production was usually four weeks.

    ·     In an email dated 22 October 2013 from the applicant to Mr Ren, she responds to points made by him as to samples packs, catalogues, video clips, and processing orders. There is also a reference to signing a contract between the applicant’s company and Health Sharing Group Pty Ltd.

    ·     In an email dated 1 November 2013 from the applicant to Mr Ren, she wrote that they still expected to get the export licence but there was a problem arising from tests that showed the concentration of protein in the sample was not as high as expected. She requested further information including the manufacturer’s certification of the protein content of the milk.

    ·     Mr Ren responds on 7 November 2013 asking for the detail of the test results, and which product had been tested. He also responded to some of the applicant’s requests for specific advertising material (video clips and brochures for single products.)

    ·     In an email dated 19 November 2013 the applicant writes that the certificate Mr Ren sent her did not contain the details of the protein concentration.  

31. The applicant also submitted a number of emails in Vietnamese dated September and November 2013.The translations indicate that efforts were being made to generate interest in the colostrum product in Vietnam once the licence to import the product was approved.

32. Based on the applicant’s evidence including the emails summarised above, the Tribunal is satisfied that the applicant made a genuine attempt to export colostrum from Australia to Vietnam between May 2013 and November 2013. It is apparent from the emails that was an ongoing process during those seven months, and the applicant was hopeful it would be successful until it became apparent there was a problem that was revealed when the Australian product was tested in Vietnam. The import licence was subsequently refused by the relevant Vietnam authority. The Tribunal further notes that the applicant paid $580 in July 2013 as part of this process.

    Does the applicant meet the criteria set out in c.890.211?

33. The Tribunal is satisfied that the requirement to have an ownership interest in one or more actively operating main businesses in Australia for at least 2 years immediately before the application was made, is met in relation to the period 25 May 2013 to November 2013 by the medical supply business, and from November 2013 to the current time by the café business. Although both operated through the Trust, they are distinct businesses and the Tribunal is satisfied that each is a main business. The Tribunal is satisfied that the criteria set out in cl. 890.211(1) is met.

34. Cl. 890.211(2) concerns the Australian Business Number (ABN) and Business Activity Statements (BAS). The ABN of the Trust is 38 414 600 369. It was registered on 1 September 2011. The Australian Company Number for the trustee company is 152 960 140.

35. The departmental file includes BAS for the following periods, noting the two-year application period ended 24 May 2015, which falls in the middle of the BAS period 1 April 2015 to 30 June 2015.

    • 1 April 2013 to 30 June 2013
    • 1 July 2013 to 30 September 2013
    • 1 October 2013 to 31 December 2013
    • 1 January 2014 to 31 March 2014
    • 1 April 2014 to 30 June 2014
    • 1 July 2014 to 30 September 2014
    • 1 October 2014 to 31 December 2014          
    • 1 January 2015 to 31 March 2015

36. The applicant submitted copies of BAS from the Tax Agent Portal, according to which they were lodged with the ATO by the due date. The Tribunal is satisfied they were included with the visa application and cl. 890.211(2) is also met.

    CONCLUSION

37. The Tribunal is satisfied therefore that cl. 890.211 of Schedule 2 to the Regulations is met. The Tribunal (differently constituted) has previously been found that cl. 890.212 was met. The appropriate decision in relation to the applicant is to remit this matter to the Minister to consider the remaining criteria for the grant of the visa.

38. As this means the other applicants may meet cl.890.311, the decision in relation to the other visa applicants is also remitted to the Minister to consider the remaining criteria for the grant of the visa.

    DECISION

39. The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first-named applicant meets:

    · Cl.890.211 of Schedule 2 to the Regulations

    Susan Hoffman
    Member