Rani (Migration)

[2024] AATA 2802

Rani (Migration) [2024] AATA 2802 (26 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Poonam Rani
Mr Kamaljit Singh
Master Vedh Banga

REPRESENTATIVE:  Mr Pallemulle Siri Bandara

CASE NUMBER:  2113746

HOME AFFAIRS REFERENCE(S):          BCC2020/528217

MEMBER:Bridget Cullen

DATE:26 July 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa Applicants Business Skills (Provisional) (Class EB) visas.

Statement made on 26 July 2024 at 2.45pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) – Subclass 188 (Business Innovation and investment (Provisional)) – business innovation stream – ownership interest accepted – direct and continuous involvement in day-to-day management of business – work in other occupation during relevant period – husband’s and sister’s evidence of applicant’s role vague and unpersuasive – no verifiable, third-party evidence – members of family unit husband and child – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), r 1.11(1)(b), Schedule 2, cls 188.225, 188.311

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 17 September 2021 to refuse to grant the Applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The Applicants applied for the visas on 21 February 2020. Class EB contains Subclass 188 (Business Innovation and Investment (Provisional)). The criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one Applicant. Other members of the family unit who are Applicants for the visa need satisfy only the secondary criteria. The primary criteria include common criteria, and criteria set out in streams. In this case, the first named visa Applicant (‘the Applicant’) applied for the visa in the Business Innovation stream.

3. The Delegate in this case refused to grant the visas on the basis that the Applicant did not adequately demonstrate that she maintains, or has maintained, direct and continuous involvement in management of the businesses from day-to-day and in making decisions affecting the overall direction and performance of the business to meet the definition in regulation 1.11(1)(b), and therefore the Delegate found that the Applicant did not satisfy the requirements of cl 188.225 of Schedule 2 to the Regulations.

4. The Applicants appeared before the Tribunal on 3 May 2024 to give evidence and present arguments. The Tribunal also received evidence from the Applicant’s sister, Kamaljit Kaur. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. At the conclusion of the hearing, the Applicants indicated that they had understood the proceedings, the Tribunal’s questions, and had no concerns with the interpretation.

5. The Tribunal had originally scheduled the hearing of this matter for 20 March 2024. The Tribunal adjourned the matter, as the Applicants had a newly appointed representative, and he had not had the opportunity to develop an understanding of their case. Prior to the initially scheduled hearing, the Applicants had provided the Tribunal with Statutory Declarations dated 13 March 2024, an undated half-page statement from the Applicant, and an ASIC Certificate of Company Registration for GRD Landscaping & Fencing Pty Ltd.

6. As the information provided by the Applicants was scant, and it appeared to the Tribunal that the Applicants did not appreciate that there was a need to address the relevant issues more fulsomely, yet had tried to provide information before obtaining representative, the Tribunal determined that it would be appropriate to adjourn the matter.

7. The Tribunal explained to the Applicants and their newly appointed representative that the purpose of the adjournment was to provide the Applicants with a fair opportunity to provide relevant information, after obtaining legal advice.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. When the Applicant completed her Application for the visa, she claimed a 30% ownership interest in the Balwan Singh Saw Mill as her nominated main business for purposes of meeting the criteria in cl.188.225  The Applicant’s claimed involvement in the Balwan Singh Saw Mill commences from 2 November 2009.

10. Following significant outreach by the Department, and non-response by the Applicant to multiple requests, the Applicant eventually provided the Department with the following evidence:

    ·A Partnership Deed for the Balwan Singh Saw Mill, dated 2 March 2012.

    ·Minutes of Meetings held on the following dates:

    o15/04/2012

    o28/10/2013

    o16/04/2014

    o28/10/2014

    o16/05/2015

    o28/10/2015

    o25/03/2016

    o26/03/2017

    o16/08/2017

    o16/10/2017

    o16/04/2018

    o16/10/2018

    ·A Company Organisational Chart.

11. The shares, according to the Partnership Deed, are as follows:

    ·Balwan Singh – 40%

    ·Poonam Rani – 30%

    ·Kamaljit Kaur – 30%

12. The Delegate assumed that the Kamaljit Kaur listed on the Partnership Deed was the Applicant’s husband, who is also named Kamaljit. However, the Applicant’s husband is Kamaljit Singh, not Kaur. The Delegate then found that for purposes of the visa application, the Applicants held 60 percent of the shares of the Balwan Singh Saw Mill. The Tribunal accepts the Applicant’s evidence that Kamaljit Kaur is a different person, and the Applicant has a 30% shareholding in the Balwan Singh Saw Mill, as she claimed on her application for the visa.

13. In her Statutory Declaration dated 13 May 2024, the Applicant asserts that the Delegate misinterpreted her management role. She says she provided:

    “substantial evidence, including Minutes of Meetings, Partnership Deed, Financial Documents, and signed bills, all of which confirm my active involvement in the management of day-to-day activities. I am more than willing to provide additional documentation or clarification to address any concerns and further substantiate my role.”

14. Despite the Tribunal adjourning the original hearing to provide a further opportunity to provide information, and despite the assertion that additional information could be provided, ultimately the Applicant provided only one further letter, from Balwan Singh dated 18 March 2024. In that letter, it is claimed that the Applicant held significant responsibilities, including financial management, operations management, human resource management, strategic management, and assisted with a transition to online management. Balwan Singh was not made available as a witness to the Tribunal, and therefore the Tribunal did not have the opportunity to ask Balwan Singh questions about the evidence.  

15. The Tribunal had access to an early decision made by the Tribunal (differently comprised), on 2 July 2019. The Tribunal remitted the Applications of the Applicants for Student (Temporary) (Class TU) visas for reconsideration. In the 2 July 2019 decision, the Tribunal accepted that the Applicant was a genuine temporary entrant, who was seeking to remain in Australia for purposes of completing a Diploma in Early Childhood Education.

16. In explaining to the Tribunal the benefits of her Australian study, the Applicant advised the Tribunal (as reflected in the Decision Record) that she worked as a nurse at Sant Sarwan Dass Hospital from July 2007 to August 2017. The Applicant claims, in these proceedings, to have worked managing Balwan Singh Saw Mill actively on a day-to-day basis between 10 November 2009 and 31 March 2018. The Applicant included the information that she had worked as a nurse at Sant Sarwan Dass Hospital on her application for the visa.

17. The Tribunal put the additional information it had obtained from the 2 July 2019 student refusal Decision Record to the Applicant in accordance with s. 359AA of the Act. The Tribunal explained that it may not accept that the Applicant was working in the Balwan Singh Saw Mill as claimed, given that it appeared to the Tribunal that she had a full time nursing role elsewhere, during the same period.

18. The Applicant responded at the hearing, claiming that she was able to schedule her work to perform both roles. The Applicant’s representative reminded the Tribunal that the relevant period for purposes of its assessment is that set out in cl. 188.225(1) – the 2017 and 2018 fiscal years as nominated by the Applicant in the application.

19. The Balwan Singh Saw Mill is located in Pathankot, Punjab, India. The Sant Sarwan Dass Hospital is located in Jalandhar, Punjab, India. The Tribunal does not accept the Applicant’s evidence that she routinely travelled between these two locations on a daily basis. The Tribunal acknowledges that the Applicant’s husband gave evidence that the Applicant did work in both roles, and also acknowledges that the Applicant’s sister claims she was working day-to-day at the Balwan Singh Saw Mill.

20. There is no verifiable, objective evidence from neutral third parties before the Tribunal, such as banking records, payslips, media articles, human resource records, before the Tribunal, establishing that the Applicant, in fact, was actively engaged day-to-day at the Balwan Singh Saw Mill. The limited evidence before the Tribunal is capable of establishing that the Applicant had an ownership interest, only. The Tribunal is not prepared to accept the untested evidence before it from Balwan Singh to support the Applicant’s claims to have been involved, given the Tribunal’s concerns that the Applicant was, in fact, working as a hospital nurse during the vast majority of the relevant period.

21. During the majority of the period after the Applicant was no longer working as a nurse, the Applicant was living in Australia. The Tribunal does not accept the assertion that she was working online during this period, in any active way, to help the Balwan Singh Saw Mill “transition to online management”. There is no supporting evidence of this assertion.

22. The Tribunal does not accept the Applicant’s evidence that she was involved day-to-day in the Balwan Singh Saw Mill’s management. Over the length of time she claimed to work in both roles, or even just in relation to the 2017 and 2018 fiscal years, the Tribunal thinks it entirely implausible that the Applicant was able to maintain both an active managerial role and a nursing role. The Tribunal found both the Applicant, her husband’s, and her sister’s evidence, to be vague, lacking detail, and entirely unpersuasive of her holding an active managerial role.

23. Were the role the Applicant claims to have had at Balwan Singh Saw Mill genuinely on of active day-to-day involvement, the Tribunal thinks that there would be more documentary evidence before the Tribunal in relation to the Applicant’s role. The Applicant has had ample opportunity to provide evidence and yet, in the Tribunal’s view, there is a paucity of evidence.

24. For these reasons, the Tribunal finds that the Applicant has not demonstrated that she maintains, or has maintained, direct and continuous involvement in the management of the business (the Balwan Singh Saw Mill) from day-to-day and in making decisions affecting the overall direction and performance of the business as per reg. 1.11(1)(b).

25. As the Applicant does not meet reg. 1.11(1)(b), the Tribunal finds that the Applicant does not meet cl 188.225.

    Secondary Applicants

26. The Delegate also refused visas to the second and third named secondary Applicants, the husband and eldest child of the Applicant.

27. There is no claim or any evidence before the Tribunal that the secondary Applicants meet the primary criteria for the grant of the visa. In addition, to meet clause 188.311, the secondary Applicants must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 188 visa.

28. As the secondary Applicants do not satisfy the primary criteria for a subclass 188 visa, or any other subclass, the Tribunal finds that the secondary Applicants also do not satisfy clause 188.311 and, therefore, the criteria for a subclass 188 visa, or any other subclass.

OVERALL CONCLUSION

1. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are not met. Accordingly, the decision under review must be affirmed.

   DECISION

2. The Tribunal affirms the decisions not to grant the visa Applicants Business Skills (Provisional) (Class EB) visas.