NGUYEN (Migration)

[2019] AATA 3776

NGUYEN (Migration) [2019] AATA 3776 (21 June 2019)

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
Ms Ngoc Hong Phuc Nguyen

CASE NUMBER:  1610484

DIBP REFERENCE(S):  BCC2015/1543825 BCC2016/1274300 BCC2016/1274303 BCC2016/1274307 BCC2016/1274313 BCC2016/3119795

MEMBER:Kate Millar

DATE:21 June 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal has no jurisdiction in relation to Ms Ngoc Hong Phuc Nguyen.

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

· cl.890.212 of Schedule 2 to the Regulations.

Statement made on 21 June 2019 at 12:34pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – minimum net value requirement – ‘main business’ – ownership interest – interposed trusts – ‘qualifying business’ – offer goods or services ‘to the public’ – supply of medical equipment to one company – number of qualifying businesses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134, 338, 347
Migration Regulations 1994 (Cth), rr 1.03, 1.11; Schedule 2, cls 890.212, 890.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mrs Nguyen said she set up a business when she came to Australia to supply medical equipment to businesses in Vietnam.  This involves arranging the supply of the equipment to a business in Vietnam who then re-sells to other Vietnamese customers.  It was difficult to build this business and so Mrs Nguyen has also operated Birdhaus Café and La Cantina Café in Perth.   These businesses are run through a family trust, the ANHS Family Trust, with the trustee being ANHS Fam Pty Ltd. 

2. Mrs Nguyen and her family have applied for Business Skills (Residence) (Subclass 890) visas on the basis of Mrs Nguyen’s business activities in Australia. They applied for the visas on 25 May 2015, and on 4 July 2016, a delegate of the Minster for Home Affairs refused their visas because the delegate was not satisfied that Mrs Nguyen either alone or jointly with her husband Mr Le met the requirement to have AUD100,000 in net assets in the business throughout the period of 12 months immediately before the date of the visa application.   

3. This an application for review of a decision made by a delegate of the Minister for Immigration on 4 July 2016 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).

4. The applicants appeared before the Tribunal on 20 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from their accountant, Miss Kim Hoang.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   JURISDICTION

5. A decision to refuse to grant he applicants a Subclass 890 visa is reviewable by this Tribunal under s.338(2) of the Migration Act 1958 (the Act). An application to review a decision under this section can only be made by a non-citizen who is physically present in the migration zone when the application for review is made (s.347(3) of the Act).

6. The last named applicant, Ms Ngoc Hong Phuc Nguyen, was not in Australia at the time the application to review the decision was made.  In the written invitation to a hearing the review applicants were invited to make any submissions on whether the Tribunal had jurisdiction to review a decision in relation to Ms Ngoc Hong Phuc Nguyen.  This was also canvassed at the hearing.

7. At the hearing, Mrs Nguyen said Phuc had to stay in Vietnam because she was studying medicine in Vietnam and looking after Mrs Nguyen’s mother.  She conceded this would mean that the Tribunal did not have jurisdiction in relation to Phuc.

8. The Tribunal finds it does not have jurisdiction in relation to Ms Ngoc Hong Phuc Nguyen.  Reference to “the applicants” in the decision below does not include Ms Ngoc Hong Phuc Nguyen. 

   THE BUSINESSES

9. Mrs Nguyen nominated the Trustee for the ANHS Family Trust (the Trust) as the main business.  The trustee of the trust is ANHS Fam Pty Ltd.  Mrs Nguyen is the sole director and shareholder of ANHS Fam Pty Ltd.  Mrs Nguyen, her husband Mr Le and their children are the beneficiaries of the Trust.   Mrs Nguyen provided a copy of the Trust deed with the application. 

10. The Trust operates more than one business.  At the time of the application, this was the supply of medical equipment to Vietnam and two cafes.

11. Mrs Nguyen said she was a medical practitioner in Vietnam, and when she came to Australia in 2011 she started a business that sourced and supplied medical equipment to a company in Vietnam, referred to as AVL.  Her role is to source the equipment from another foreign company and arrange for it to be shipped to Vietnam.  The company in Vietnam then sells the equipment to others.  Mrs Nguyen purchases the equipment, and the company in Vietnam pays her for the equipment on its arrival in Vietnam.  Mrs Nguyen provided a translated copy of the contract between the Trust and AVL, as well as invoices from the Trust to AVL and also from various suppliers to the Trust. 

12. According to settlement statement provided with the application, the trust purchased Amano Café (which is stated to have been subsequently renamed Birdhaus Café) for $59,000 on 12 December 2013 and La Cantina Café on 6 June 2014 for $125,000.  Each of the cafes had a separate bank account. 

13. Mrs Nguyen said the Birdhaus Café was sold in August 2015

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

15. The criteria for the grant of a subclass 890 visa are set out in Part 890 of Schedule 2 of the Migration Regulations 1994 (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.

16. In this case Mrs Nguyen is nominated and the primary applicant.  The delegate found she did not meet cl.890.212 which states:

    The assets of the applicant, the applicant’s spouse or defacto partner, or the applicant and his or her spouse or defacto partner together, in the main business or main businesses in Australia:

    (a)have a net value of at least AUD100,000; and

    (b)had a net value of least AUD100,000 throughout the period of 12 months immediately before the application was made; and

    (c)have been lawfully acquired by the applicant, the applicant’s spouse or defacto partner, or the applicant and his or her spouse or defacto partner together.

17. In deciding whether Mrs Nguyen meets cl.890.212, the Tribunal must first look at what are the main businesses in Australia, and then whether Mrs Nguyen and/or Mr Le had net assets of at least AUD100,000 at the time of the visa application and throughout the 12 months before the visa application.  The net assets must be lawfully acquired.

18. The visa application was lodged on 25 May 2015, and the 12 months immediately before the application was made is the period 24 May 2014 to 24 May 2015 (inclusive).

    The main business or businesses

19. The term “main business” has the expanded meaning given to it by r.1.11 and requires that:

    o   The applicant has an ownership interest in the business

    o   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;

    o   The value of the applicant and his or her spouse’s ownership interest in the business is to a certain value; and

    o   The business is a qualifying business as defined in r.1.03.  This requires that it is operated for the purpose of making a profit through the provision of goods, service or goods and services (other than the provision of rental property) to the public and it is not operated primarily or substantially for the purpose of speculative or passive investment; and

    o   If there is more than one qualifying business, the applicant must not nominate more than two qualifying businesses as main businesses. 

20. A “qualifying business” is an enterprise which is operated for the purpose of making a profit through the provisions of goods, services or goods and services to the public and is not operated primarily or substantially for the purpose of passive investment.

21. An ownership interest is an interest in the business as a shareholder that carries on the business including one held indirectly through interposed trusts ( s134(10) of the Act). At the time of the application, Mrs Nguyen was the sole director and shareholder of ANHS Fam Pty Ltd and it follows that she has an ownership interest to the required value. She runs the business and has direct and continuous involvement in the management of the business and in making decision affecting the overall direction of the business. In issue is whether the import/export aspect of the business and, if it is a qualifying business, whether there are more than two qualifying businesses.

    (i) Is the import/export business a qualifying business?

22. The part of this definition that states a business must offer good, service or goods and service to the public is in issue when it is applied to that part of the business that involves the supply of medical equipment.  This is because Mrs Nguyen says she only source’s and arranges supply medical equipment to one business in Vietnam.  However, as there is no information to indicate she is restricted to only supplying this one company and on balance the Tribunal accepts this business offers goods and services to the public.

23. Also in issue is whether the Trust operates one business or several businesses.  For the purposes of this decision, the Tribunal considers the Trust operates two businesses, one being the import/export of medical equipment and the other being the operation of hospitality outlets. 

24. Mrs Nguyen said that the company in Vietnam orders equipment from her.  She buys the stock from foreign companies and provides it to the company in Vietnam (AVL) who then sells the stock.  She said AVL is like a distributor.  Mrs Nguyen said she has to pay the people from whom she orders stock, and the ordering company sends the stock to the company in Vietnam. AVL pays her for the stock that is ordered when they receive the stock.  AVL then sells the stock to other companies or hospitals.

25. As Mrs Nguyen does not provide the stock to more than one company, the Tribunal carefully considered when she was offering goods and services to the public.  There is nothing before the Tribunal to show that Mrs Nguyen is restricted to providing goods and services only to AVL, and it is submitted that AVL is not related to Mrs Nguyen or the Trust. 

26. As a result, the Tribunal finds that the import/export part of the business offers goods and service to the public and is a qualifying business. 

    (ii) Are there more than two qualifying businesses

27. Regulation 1.11(2) specifies the applicant must not nominate more than two qualifying businesses.

28. All business activity relied on by Mrs Nguyen is operated by the Trustee of the Trust, however the Tribunal considers a business may be a discrete aspect of activity of the Trust, particularly in this case where there is a large distinction between the activities required in the import and export of medical equipment and the operation of the cafes’. 

29. However, in the circumstances of this particular case, the Tribunal is satisfied that while the two café have separate financial arrangements in the financial statements, the business in relation to the café is the business of operating hospitality outlets, and that together the cafes form one business operated by the Trustee of the Trust. 

30. It follows that the applicant has not nominated more than two qualifying businesses, and that the activities of the Trust are two main businesses which can both be taken into account for assessing the value of Mrs Nguyen and Mr Le’s net assets in the businesses. 

    Was the value of Mrs Nguyen and Mr Lee’s assets in the businesses at least 100,000AUD throughout the period of 12 months before the application was made?

31. The period in question is 24 May 2014 to 24 May 2015.  There is no suggestion the assets of the businesses have been unlawfully acquired.

32. It follows that the issue is whether Mrs Nguyen and Mr Le had net assets of at least 1000AUD in the business throughout the period 24 May 2014 to 24 May 2015.

33. Mrs Nguyen provided bank account statements showing the transfer of cash from personal bank accounts to the trustee company bank accounts and, in combination with Mrs Nguyen’s oral evidence that this was money brought with the family from Vietnam,  and in the absence of any contrary information, the Tribunal is satisfied that loans to the Trust were from cash assets and not by way of any other loan. 

34. In this case net assets of Mrs Nguyen and Mr Le can be determined by looking at the net equity in the Trust financial statements and adding the amounts loaned to the Trust by Mrs Nguyen and Mr Le. 

35. Mrs Nguyen provided financial statements for the each quarter from 1 January 2014 to 30 June 2015.  These were prepared by an accountant but are unaudited.

36. Miss Kim Anh Hoang, Mrs Nguyen’s accountant, gave evidence to the Tribunal.  Miss Hoang said her qualifications are a Bachelor of Accounting and Auditing.  Miss Hoang said the financial statements were prepared using the bank statements and invoices in the relevant period.  For the statements 1 January 2014 to 30 June 2015 she did not have the opening balance as at 31 December 2013 and booked in a balance of $196,591. 

37. Mrs Nguyen provided, as requested, copies of bank account statements showing the transfer of money from her personal bank account to the business bank account, and the Tribunal is satisfied these monies were transferred.  Mrs Nguyen said, and there is no other information to the contrary, that she brought this money with her from Vietnam, where she was a medical practitioner.  After the hearing, Mrs Nguyen also provided, as requested, ledgers from the beneficiary loan accounts. 

38. The bank account statements and the beneficiary ledger shows, in particular, that on 8 January 2014 $270,000 was transferred from Mrs Nguyen and Mr Le’s personal bank account to a company bank account.  This transaction is consistent with the beneficiary ledgers. 

39. The financial statements for the period 1 January 2014 to 31 March 2014 record the Trust has having negative net equity of $5,999.  It has a beneficiary loan from Mrs Nguyen of  $445,399 and a loan of  $5,131 from Mr Le.  The results in total beneficiary funds of $450,530.  The Tribunal finds Mrs Nguyen and Mr Le had net assets in the business of $444,531 in this period, which is in excess of AUD100,000

40. In the period 1 April 2014 to 30 June 2014 the net equity is recorded in the financial statements as $6,112, with beneficiary loans from Mrs Nguyen and Mr Le of $404,128 and resulting total net assets of $410,240.  The Tribunal finds Mrs Nguyen and Mr lee had net assets in excess of AUD100,000 in the business in this period.

41. The financial statements 1 July 2014 to 31 March 2015 record net equity of $94,093 and beneficiary loans from Mrs Nguyen and Mr Le of $374,216, with total net assets of $468,309.  The Tribunal finds Mrs Nguyen and Mr lee had net assets in excess of AUD100,000 in the business in this period.

42. The financial statements for the period 1 April 2015 to 30 June 2015 shows net equity of $10, with beneficiary loans from Mrs Nguyen and Mr Le of $430,098, with total net assets of $430,108.  The Tribunal finds Mrs Nguyen and Mr Le had net assets in excess of AUD100,000 in the business in this period.

43. It follows that the Tribunal finds Mrs Nguyen and Mr Le had net assets in the business of at least 100,000AUD in the 12 months immediately before the application and on the day the application was made.  There is nothing to suggest the assets were not lawfully acquired. 

    CONCLUSION

44. As Mrs Nguyen and her husband had net assets of at least 100,000AUD in the main businesses in Australia for the period 12 months immediately before the application was made, and on the day the application was made, Mrs Nguyen meet cl.890.212 of Schedule 2 of the Regulations, and the appropriate decision in relation to her is to remit this matter tot eh Minister to consider the remaining criteria for the grant of the visa.

45. 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

46. The Tribunal has no jurisdiction in relation to Ms Ngoc Hong Phuc Nguyen.

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

    ·cl.890.212 of Schedule 2 to the Regulations

    Kate Millar
    Senior Member