Poiyamozhi (Migration)

[2020] AATA 42

Poiyamozhi (Migration) [2020] AATA 42 (8 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sangamithra Poiyamozhi

CASE NUMBER:  1613104

DIBP REFERENCE(S):  BCC2015/3013628 BCC2015/3168957 BCC2016/3397750

MEMBER:Warren Stooke AM

DATE:8 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 188 visa:

·cl.188.225 of Schedule 2 to the Regulations

Statement made on 08 January 2020 at 1:48pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – direct and continuous day to day involvement and making decisions in business in India – business sold before application for visa lodged – certified material and evidence at hearing – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 188.225

CASE

Re Lau & MIMIA [2002] AATA 703

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 to refuse to grant the applicant a Business Skills (Provisional) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 15 October 2015. The delegate refused to grant the visa on 2 August 2016.

2. The delegate made the decision on the basis that evidence of the applicant’s maintenance of direct and continuous involvement in the business from day to day and in making decisions affecting the overall direction and performance of the business was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On 7 January 2020 the Tribunal had an opportunity to explore the status of the applicant’s business involvement in India that was required to support the applicant and criteria pertaining to the grant of a 188 visa.

4. The Tribunal established in evidence that the applicant relied upon the Chennai Gas business to support the application on the basis of evidence of an extended period of involvement, whereupon the business was set up in December 2005 and was owned and operated with a 50% equity until the sale of the business in May 2015.

5. Following the sale of Chennai Gas the owner operator continued a franchise relationship with the international oil and gas companies Total and Elf, which was supported by evidence of corporate franchise agreements. [Tribunal File: Folios 83-98]

6. Additionally, the applicant provided evidence that the applicant secured a supply agreement for auto grade LPG from a purpose built Automotive LPG Dispensing Station, which was executed on 31 January 2014 for a period of ten years. [Department File: Folios 193-218]

7. The Tribunal notes that the original application only referred to Chennai Gas, which was the applicant’s business that was set up in December 2005 and sold on 10 May 2015. This disposal of the business was prior to lodging the application on 15 October 2015. The applicant explained that the import of the question in the application form was seeking the applicant’s business experience, which was intended by the applicant to be with the totality of the relationship with Total and Elf, rather than confined to the one entity.

8. Based upon the evidence provided, the Tribunal accepts that the applicant was engaged in work as a partnered owner (50%) with his extended family owning the other 50% of the business. It is also accepted that the applicant was intimately involved in the operation of the business, which included the following core activities:

   a.Management of the business accounts;

   b.Responsibility for the franchise contract and compliance;

   c.Supervision of 25 employees and the assignment of duties;

   d.Marketing and liaison with clients;

   e.Management of orders, including order taking; organising despatch and effecting distribution;

   f.Invoicing and management of debt recovery;

   g.Accounts payable and submissions to the accountant;

   h.Stock reconciliation;

   i.Tax return and government compliance;

   j.Banking and supervision of the business accounts with the appointed accountant

9. The applicant provided evidence that her husband is obsessively involved in the business and described him as a ‘workaholic’, whereby his involvement extended to all activities and for extended hours of the week. The Tribunal notes that under the terms of the supply agreement with Total the applicant’s husband had a responsibility to maintain compliance with the supply agreement, which involved overall responsibility.

10. With regard to interpreting the term "day-to-day management", in the decision of Re Lau & MIMIA (2002) AATA 703— a case that involved the review of a decision to issue a Notice of Cancellation pursuant to s. 134 of the Act — the Administrative Appeals Tribunal noted:

    "While some of the activities undertaken by the applicant might be viewed as unsophisticated, there is nothing to suggest that they were inappropriate for the nature of the proposed business ... the use of the term day-to-day management does not require that activity be recorded every day, and the input at a senior level by someone of the experience of the applicant will often be intangible."

11. In terms of general principle, the Tribunal must consider the matter of ‘day to day involvement’ in the context of the following:

    a.An assessment as to what may constitute day to day management of a business must be assessed by reference to the nature and size of the business in question and what is appropriate in these respects. In this regard, the Tribunal is satisfied that the business is substantive with 25 employees and an annual turnover that averaged around AUD$900,000 over the three years of financial data, provided in evidence;

    b.A person need not be physically present at a business’s premises, to be considered to be involved in the day to day and overall management of a business, nor need their activities necessarily be an everyday occurrence given the size of the business and the contractual management responsibilities of the owner with the franchisor, which in this case is the international Total Corporation’s Indian subsidiary.

    c.Continuous involvement in day to day management of a business requires regular activity by the applicant, which has been confirmed by the evidence to the satisfaction of the Tribunal;

    d.Management activities include planning and goal-setting, allocating resources, assigning tasks, supervising and leading the business team, controlling resources and monitoring and managing performance, which has been confirmed in evidence to the satisfaction of the Tribunal;

    e.Maintaining direct involvement in the management of a business is not limited to responsibility within the business in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure, nor does it necessarily require management of the entire business operations. In the circumstances of this case, the applicant and her husband have both been actively involved in the business, to the satisfaction of the Tribunal.

12. The Tribunal accepts that significant rigor is applied by international oil and gas companies in appointing their agents and their confirmation of the capacity of the incumbent to undertake the business activity within their extended supply chain. As such, the Chennai Gas business is accepted as legitimate and the accounts and certified tax returns provided to the Tribunal demonstrate that the business had a significant turnover, which was in excess of the minimum threshold standard of AUD$500,00, as required in clause 188.225. In this regard, the applicant provided evidence that the Chennai Gas business had a gross income of AUD$1,081,172 in the financial year ending 31 March 2013; AUD$951,291 in the in the financial year ending 31 March 2014 and AUD$861,689 in the financial year ending 31 March 2015. [Department File: Folios 142-161]

13. The Tribunal was provided with evidence that the applicant has a Master of Commerce, with a major in accounting and that her husband also has a master’s degree, with a major in accounting. The Tribunal also notes that the daughter of the applicant has graduated from Melbourne University with a Master’s degree and has permanent residency in Australia and that their son has recently completed a Master of Sports Management and is the current holder of a 485 visa.

14. The applicant gave evidence that she established an Indian restaurant in Melbourne, which she operated for a period of two and a half years and that the business is now closed due to a fire. The applicant stated that pending the grant of a visa it is the intention of the family to invest in a new business. In this regard, the Tribunal was informed that the husband of the applicant remains in India and was recently refused a visitor visa to Australia pending the determination of this case.

15. The Tribunal has considered the Chennai Gas business investigation of the Departmental Officer, which was undertaken on 14 March 2016, more than 9 months after the business was sold. As such, the Tribunal is concerned regarding the reliability of the information gleaned from discussions with staff at that time, given that the applicant and her husband were no longer engaged in the activities of this business. The Tribunal has preferred to rely upon the certified material that has been submitted by the applicant and the evidence provided at hearing.

16. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

    DECISION

17. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 188 visa:

    ·cl.188.225 of Schedule 2 to the Regulations

    Warren Stooke AM
    Member