PERERA (Migration) - [2018] AATA 5464

PERERA (Migration) [2018] AATA 5464 (9 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs JENETTE JASINTHA DIAS PERERA
Mr ANTON SRIMATH DIAS PERERA
Mr CHANNA DIAS PERERA
CASE NUMBER:  1601146
DIBP REFERENCE(S):  BCC2014/2968548 BCC2015/3330628 BCC2015/3885578 BCC2015/3885616 BCC2015/3885635 BCC2015/3885662 BCC2015/3885674 BCC2015/3885695 BCC2016/156260
MEMBER:R. Skaros
DATE:9 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.
Statement made on 09 November 2018 at 1:15pm

CATCHWORDS
MIGRATION – Business Skills (Residence)(Class DF) visa – Subclass 892 – import and export business – providing employment, business and personal assets in Australia – net value of assets requirement not met – activities conducted in Australia limited – not a qualifying business – no exceptional circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, r 1.11, Schedule 2, cls 892.211, 892.212, 892.214

CASES
Teng v MIBP [2015] FCCA 1197

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 January 2016 to refuse to grant the applicants Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958 (the Act).
The primary criteria for the grant of a Subclass 892 visa is set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one member of the family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
The applicants applied for the visas on 7 November 2014. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl.892.212 of the Regulations. The delegate found that the appropriate regional authority has not determined that there are exceptional circumstances and that the applicant did not satisfy at least 2 of the 3 requirements in cl.892.212 relating to providing employment, business and personal assets in Australia and assets in the main business in Australia.
The applicant provided a copy of the delegate’s decision record with the application for review.
The Tribunal invited the applicants to provide information regarding a number of requirements, to which the applicants’ former representative provided a response.
The first and second named applicants, who are spouses and shareholders of the nominated business, appeared before the Tribunal on 10 May 2018 to give evidence and present arguments. The Tribunal also took evidence from their accountant, Mr Johaan Zimsen.
The applicants were represented in relation to the review by their registered migration agents. Their former representative attended the hearing.
At the hearing, the Tribunal agreed to grant the applicants additional time, until 18 May 2018, to provide further information regarding the various issues discussed, including their net assets in the nominated business, whether the nominated business’ activities were in Australia, and whether the business was…

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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Details

Case: [2018] AATA 5464
Decision Date: 9 November 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Business Skills (Residence) (Class DF) visa, subclass 892, made by an applicant who nominated Adriyan Holdings Australia Pty Ltd as their main business. The applicant and their spouse held 100% of the shares in the company, which was described as operating an import and export business dealing in machinery, spare parts, and chemicals, with a primary client base in Asia. The Tribunal was required to determine whether the applicant met the visa requirements, particularly concerning the net value of business assets and the nature of the business activities conducted in Australia.

The central legal issues before the Tribunal were whether the applicant's business met the net asset value requirement and whether the activities conducted by the business qualified it as a "qualifying business" for the purpose of the visa. The applicant's accountants asserted that the net assets were at least $75,000 throughout the relevant 12-month period, with income derived from "service charges" (a 15% fee on export sales invoices payable by an overseas branch) and import/export income, which could be minimal. The Tribunal examined the nature of these income streams and the extent to which the business's operations constituted a genuine and substantial business activity in Australia.

The Tribunal reasoned that the applicant's business did not meet the net asset requirement. Furthermore, it found that the business's activities, particularly the reliance on service charges calculated as a percentage of export sales and the limited direct import/export transactions conducted within Australia, did not constitute a qualifying business for the visa subclass. The Tribunal concluded that there were no exceptional circumstances to warrant a departure from these findings. Consequently, the Tribunal affirmed the decision not to grant the Business Skills (Residence) (Class DF) visa to the applicant and, by extension, to the secondary applicants who applied as members of the family unit.

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 reasons that follow, the Tribunal has concluded that the decision under review should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant nominated Adriyan Holdings Australia Pty Ltd as the main business. In the two years immediately before the application was made, between 7 November 2012 and 6 November 2014, the applicant and her spouse held 100% of the shares in Adriyan Holdings Australia Pty Ltd. The applicant provided a number of documents in support of the application, including an Australian Securities and Investment Commission (ASIC) current and historical extract of company statement, business activity statements, financial statements, bank account statements and evidence of ownership of property in Australia. In providing an overview of the business’ activities, it was submitted that the applicant’s company is based in Melbourne and operates a business that is involved in the export and imports of goods. It was submitted that the company specialises in the reconditioning of machinery and spare parts and the supply of chemicals for manufacturing purposes, with their main client base being in Asia and the South East Asia region. In relation to overseas exports, it was submitted that the business obtains supplies from Taiwan and ships it directly to the purchasing client but maintains all financial transactions through Australian banks. In relation to Australian exports, it was submitted that the business has been involved in exporting chemicals and reconditioned Australian made machinery/parts to the Asia region. It was also submitted that the business imports to Australia and has been involved in importing a chemical product to Australia for further development by a local Australian manufacturer. It was submitted that the business utilised the services of the local manufacturer to assist with manufacturing the required products, which was then exported to the client in Sri Lanka. The Department sought further information from the applicant regarding a number of matters, including net assets in the business, loan to the company and an import/export schedule itemising each transaction together with bills of lading for each transaction, bank statements to show the purchase and sale of the goods and evidence of the legal title in respect of the goods imported into Australia and subsequently exported. In response, submissions and supporting documents were provided to the Department. In a letter from the applicant’s accountants, it was relevantly submitted that the applicants had invested cash into the company which has been recorded in the financial reports under ‘Investment Funds – Capital Investment’. Copies of bank statements were provided as evidence of the funds transferred into the company’s business account. By reference to the financial statements for the year ended 30 June 2014, the accountant stated that the net assets were at least $75,000 throughout the nominated 12 months period. In relation to the business’ income, the accountant explained that there were two main sources, being ‘service charges income’ and ‘export/import income’. It was noted that the service charges accrued makes up the majority of the business’ profit and is calculated as a fixed percentage fee of 15% of each export sales invoice and is payable by the overseas branch, C.D.P. Lanka (Pvt Ltd for export services provided by the Australian entity. In relation to the import/export income it was noted that this can be very minimal and that some invoices are break even or even a small loss due to foreign currency movements. It was submitted that the profitability of the business relies heavily on the ‘service charges income’ which is generated by the applicant’s specialised skills.

Decision

Reasons for decision

The secondary applicants applied for their visas on the basis of being members of the family unit of the first named applicant. As the first named applicant does not meet the requirements for the visa, the Tribunal must also affirm the decisions in respect of the secondary applicants.DECISION The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.R. SkarosMember

Ratio Decidendi

Legal Principle Established

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