REN (Migration)

[2017] AATA 942

REN (Migration) [2017] AATA 942 (31 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Guiying Ren
Mr Yongchao Wang
Ms Wanqi Wang

CASE NUMBER:  1604406

DIBP REFERENCE(S):  BCC2015/1759211 BCC2015/1760358 BCC2015/1760359 BCC2015/1760360 BCC2015/1760364 BCC2015/1760366 BCC2015/1760372 BCC2015/1760374 BCC2015/1760377 BCC2015/1760378 BCC2015/1760380

MEMBER:Sue Raymond

DATE:31 May 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal has no jurisdiction in relation to the application of the second-named applicant.

In respect of each of the first-named and third-named applicants, the Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 892 State/Territory Sponsored Business Owner (Residence) visa:

·  cl. 892.212(c) of Schedule 2 of the Regulations.

Statement made on 31 May 2017 at 12:25pm

CATCHWORDS

Migration – Business Skills (Residence) (Class DF) visa – Subclass 892 State/Territory Sponsored Business Owner (Residence) – Assets of a net value in the nominated business – Lamb export company – Applicant’s loan to the company of $80,000AUD – Loan existed 12 months before the application

LEGISLATION

Migration Act 1958, ss 338(7A), 347(3A)

Migration Regulation 1994, Schedule 2, cl 892.212(c)       

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The main issue in this matter is whether certain loans made to a company, Topmate Australia Pty Ltd, can be considered to be assets owned by the first-named applicant, Ms ren, and/or her spouse, the second-named visa applicant, Mr Wang, in the business the subject of the visa application.

2. The visa applicants applied for the Business Skills (Residence) (Class DF) Subclass 892 visas on 18 June 2015. The delegate refused to grant the visas on the basis that that the delegate was not satisfied that the applicant and his spouse, had assets of a net value of at least AUD $75,000 in the nominated main business, Topmate Australia Pty Ltd, throughout the period of 12 months, ending immediately before the application was made. The delegate found that cl.892.212(c) was not met. The delegate also decided that the applicant did not meet the requirement in cl.892.212(a) with regard to employing the equivalent of one full-time employee. As the clause requires two out of three criteria to be met, the delegate found that cl.892.212 was not satisfied.

3. The first and second named applicants appeared before the Tribunal on 1 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Wei Wang, a director of the company, Topmate International Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

   Jursidiction

5. The second named applicant, Mr Wang, was off shore at the time of the departmental decision and at the time of lodgement of the review application. Therefore I conclude that section 347(3A) of the Act precludes the second named applicant making an application for review[1]. Consequently there is no jurisdiction in relation to the second named applicant.

   [1] The reviewable decision is covered by section 338(7A) of the Migration Act as the visa can be granted if the applicant is off-shore or on-shore and Mr Wang was off-shore when the visa application was made.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in relation to the first and third named applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

7. The main applicant, Ms Ren, is the director and 50% shareholder in an Australian company, Topmate Australia Pty Ltd [Topmate Australia]. The company is identified in documentation accompanying the visa application[2] as the “main business”. Only one main business was nominated as part of the application. Ms Ren described herself as the manager of the business and the major activity of the business is described as “exporting wine and meat”. Ms Ren further indicated in the relevant documentation that she began her involvement in the business on 21 February 2012. The ASIC documentation[3] indicates that the company was registered on 21 February 2012 and that there were two directors at the relevant time, namely Ms Ren and Wei Wang. Mr Yongchao Wang was a director but his directorship ceased on 26 March 2013, before the period of time which is relevant to this visa application. Wei Wang and Guiying Ren each held 50% of the 10000 ordinary shares. Yongchao Wang previously held 5000 shares but no longer did at the relevant time. Wei Wang is a business partner based in China.

   [2] Form 1217

   [3] Departmental file BCC2015/1760378 (described as Pt 10)

8. Another company is relevant in the context of this application. It is a Hong Kong company, Topmate International Pty Ltd [Topmate International]. Mr Yongchao Wang is a director of the company and Mr Wei Wang is also a director. As at 24 March 2015 Mr Yongchao Wang held 70% of the share capital. Mr Wei Wang held 30%. From the evidence given at the hearing it appears that Topmate International conducted a business in China selling chemistry products and plastic products.

9. There were trading transactions between Topmate Australia and Topmate International, in that the Chinese company bought lamb from the Australian company. It was a minor part of the business compared with its other activities. The Chinese company sold lamb either direct to customers or to other wholesalers. Invoices were issued in relation to these transactions. Mr Wei Wang had responsibility for the finances of Topmate International.

   Cl.892.212

10. The provision of the Regulations which is relevant to the review is as follows:

    892.212

    Unless the appropriate regional authority has determined that there are exceptional circumstances, the applicant meets at least 2 of the following requirements:

    (a)      in the period of 12 months ending immediately before the application is made, the main business in Australia, or main businesses in Australia, of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:

    (i)      provided an employee, or employees, with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 1 full-time employee over that period of 12 months; and
    (ii)      provided those hours of employment to an employee, or employees, who:

    (A)      were not the applicant or a member of the family unit of the applicant; and
    (B)      were Australian citizens, Australian permanent residents or New Zealand passport holders;

    (b)      the business and personal assets in Australia of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:

    (i)      have a net value of at least AUD250 000; and
    (ii)      had a net value of at least AUD250 000 throughout the period of 12 months ending immediately before the application is made; and
    (iii)      have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together;

    (c)      the assets owned by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main businesses in Australia:

    (i)      have a net value of at least AUD75 000; and
    (ii)      had a net value of at least AUD75 000 throughout the period of 12 months ending immediately before the application is made; and
    (iii)      have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.

11. Clause 892.212 is a criterion which must be satisfied at the time of application, namely 18 June 2015. The clause has three components. The applicant must meet at least two of the three requirements, unless the appropriate regional authority has determined that there are exceptional circumstances.

12. I have had regard to the statement of the appropriate regional authority, namely the Department of State Development, which indicated that there are not exceptional circumstances in relation to cl.892.212 of the Regulations.[4] Consequently, the provision must be satisfied by the primary visa applicant, Ms Ren.

    [4] Form 949 page 5 in BCC2015/1759211 (described as Pt 1)

13. I note from the Form 1217 which accompanied the visa application that it is recorded that there are no full time employees of the company. At hearing no issue was taken by the applicants with the assertion that cl.892.212(a) was not applicable in the circumstances. Consequently, I find that cl.892.212(a) is not met.

    The 12 month period for the purpose of cl.892.212

14. I find that the visa application was lodged on 18 June 2015. The departmental policy[5] indicates that applicants are ‘asked to demonstrate the net value of their personal and business assets on any one date in the three month period immediately before the visa application was made’. Whilst I am not obliged to follow this departmental policy, I am mindful that, for an applicant to effectively provide a balance sheet and financial documentation, it necessitates doing so at some date prior to the exact date of lodgment of the visa application. In this case, the applicant provided a balance sheet and financial documents as at 31 March 2015[6] (which show figures as at March 2014) in support of her net business asset claims. That is within the three month period prior to the lodgement of the visa application, referred to in the departmental policy. The 12 month period prior to that time is from 18 June 2014 to 18 June 2015. For the purpose of this application, I accept those dates in the financial documentation of 31 March 2015 and 31 March 2014, respectively, as appropriate in examining the period of 12 month period for the purpose of cl.892.212[7].

    Cl. 892.212(c)

    [5] PAM3- GenGuideM - Business Skills visas - Visa application and related procedures-Avoid Double Counting

    [6] Departmental file BCC2015/1760378 Pt 10

    [7] The Tribunal is mindful that the wording of each of the sub-criteria of cl.892.212 speaks of the 12 month period “ending immediately before the application is made”.

15. To satisfy the requirements of this sub-criterion it requires that the assets owned by the applicant, the applicant’s spouse, or the applicant and her spouse, together, in the main business in Australia: have a net value of at least $AUD75,000; that the net value existed throughout the period of 12 months ending immediately before the application was made, and have been lawfully acquired by the applicant, her spouse, or the applicant and her spouse together.

16. Essentially, for this subcriterion to be satisfied, I need to be satisfied that a loan made to the company of $80,000AUD is an asset owned by the main applicant and/or her spouse, Mr Yongchao Wang, and that it has been lawfully acquired by the Ms Ren and/or her spouse. The provision requires other aspects to be satisfied but these are the most significant. The Tribunal had more material supplied to it than was before the departmental delegate.

17. Based on documentation before the Tribunal, I am satisfied that a monetary transfer was made originally in US dollars from Topmate International to Topmate Australia. The Bank of China account in the name Topmate International shows a withdrawal of a sum of $72,016 on 24 February 2014. The Commonwealth Bank account statements for Topmate Australia show an $80,000 deposit appearing in the accounts on 25 February 2014. I accept that this transaction took place as the result of an email request (which evidence was before the Tribunal), dated 21 February 2014 from Ms Guiying Ren to Mr Wei Wang. It referred to the transfer of $75,000 being made before 1 March 2014. This email followed communications between the migration agent and Ms Ren on 31 December 2013 and 4 January 2014 as to the requirements for the visa and referring in part to the need to “transfer 75000 into the company”.

18. I had concerns as to whether the payment of $80,000AUD was in fact for payment of lamb as the Topmate Australia Commonwealth bank account statement has recorded, under the credit transaction, the words “Payment for goods”. Given that the companies did transact by Topmate International paying for lamb products from Topmate Australia, this was a possibility.

19. Ultimately, I am satisfied that the payment of $80,000AUD made on 25 February 2014 was not a payment for goods and the entry to that effect in the bank account and the transfer document[8] was incorrect. I have reached this conclusion based on the following documentary information which has been supplied to the Tribunal:

    ·a list of all the transactions between Topmate International and Topmate Australia covering the period 2013 to 2016[9];

    ·a detailed list stating contract and invoice numbers for orders of goods between Topmate International and Topmate Australia from 2013 to 2015[10];

    ·A letter dated 8 March 2017 from Mr Rex Li, accountant from the Australian firm DW Johns & Co[11]. He indicated:

    o“A summary of all bank transactions and commercial invoices from April 2013 up to December 2016. Total amounts received in the bank agreed with total commercial invoice amounts, with exception of USD49,401.44 received on 16 August 2013 and AUD80,000 received on 25 February 2014 being shareholder’s contributions.

    oDetails of bank account transactions match up with all commercial invoices for the period up to 31 December 2016.

    oTrade debtors balance of $33,600 as at 31 March 2014 was fully paid on the next date of 1 April 2014, which confirms $80,000 received on the 25 February 2014 was not for payments of trade debtors.

    oMarch 2014 quarter’s Business Activity Statement was lodged on the 28 April 2014 and it was amended on the 18 August 2014. The $80,000 was never being treated as sales, which reflected the $80,000 was not for the payments of goods.”

    [8] At folio 20 of the Tribunal file

    [9] Bundle of documents on Tribunal file marked “A” at item 7

    [10] Bundle of documents on Tribunal file marked “A” at item 8

    [11] Bundle of documents on Tribunal file marked “A” at item 9

20. Based on information and evidence provided to the Tribunal and relying on information provided by the accountant in Australia, Mr Li, and the accountant in Hong Kong, Choy Hung Lin, I am satisfied that the funds were sourced from Mr Yongchao Wang. The evidence I have relied upon is outlined below:

    ·Topmate International payment voucher -25 February 2014 which records a USD Bank of China account of $72,016 as “being cash repaid to WANG Yongchao (AUD80,000)”

    ·Ledger entry in relation to Topmate International, Bank of China account, which shows the withdrawal on 25 February 2014 as “Withdrawal-Wang Yongchao” in the amount of $72,016.

    ·Letter from Hong Kong Accountant Choy, Hung Lin dated 19 May 2016 which states;

    “This is to certify that, Topmate International Limited (‘the Company’), Hong Kong Company registration number 0840941, has transferred AUD80,000.00 to Topmate Australia Pty Ltd on 24^th February, 2014.

    The aforesaid AUD80,000 was sourced from Mr WANG Yongchao …and was initially transferred from Topmate International Limited in USD72,016.00.

    The amounts stated above are purely based on the books of accounts and information provided by the Company and Mr WANG Yongchao…”

    ·I place less reliance on the following but there is statement[12] , apparently signed by a director of Topmate International, certifying that the “$80000 remitted from our company’s account is Ms Ren Guiying and Mr wang yongchao’s personal asset. We remitted the $80000to Topmate Australia under instruction of them.”

    [12] Folio 25 of the Tribunal file

21. Based on the following information and documentary evidence, I find that the $80,000 received by Topmate Australia on 25 February 2014, can be categorised as Ms Ren’s loan to Topmate Australia:

    ·In the accountant’s letter dated 27 May 2016[13], Mr Rex Li states that “The Hong Kong company …transferred funds belonging to its shareholder Yongchao Wang to his wife’s Australia company account. Technically, the funds should be transferred from Hong Kong company to Yongchao’s personal account as repayment of shareholder’s loan, Yongchao then should transfer the funds to Guiying’s Australia personal account as his gift to his wife, then Guiying should transfer from her Australia personal account to Topmate Australia Pty Ltd as her shareholder’s contribution. Instead middle transfers were cut off and the funds were transferred directly from the Hong Kong company’s account to Australia company bank account. Effectively, that was still Guiying’s shareholder contribution to her Australia company.”

    ·In the accountant’s letter dated 8 March 2017[14] the accountant stated that based on the reasons and supporting documents in the letter, “we believe that it is appropriate to deem the $80,000 as shareholders contribution from Guiying Ren.”

    ·Loan agreement dated 25 February 2014[15] between Ms Ren and Topmate Australia reflecting the $80,000 as a loan to Topmate Australia.

    [13] Folio 35 of the Tribunal file

    [14]  Bundle of documents on Tribunal file marked “A” at item 9

    [15] Folio 27B departmental file BCC2015/1760380 marked Pt.11

    CONCLUSION

22. I had some concerns about whether the amount of $80,000 was a loan to the Australian company. Ultimately I am satisfied that there is a legitimate company in China in which the second named applicant has a significant shareholding. Whilst funds have been transferred direct from the Chinese company to the Australian company ultimately I accept that they can be attributed as a loan by Ms Ren to the Australian company.

23. There was another amount which may also amount to a loan. I have to be satisfied of assets with a net value of at least $75,000AUD and I am so satisfied. I find that Ms Ren has an asset namely a loan in the main business to the value of $80,000AUD. Consequently, I have not dealt with the other deposit amount of $52,276 referred to in the departmental decision.

24. Based on the details in the Topmate Australia ‘Shareholders Loan Account Transaction Details’[16], I find that the loan was in existence throughout the period of 12 months ending immediately before the application was made on 18 June 2015. I also find that the loan asset has been lawfully acquired.

    [16] Departmental file BCC2015/1760378 marked Pt 10

25. Consequently, I find that the assets owned by the main applicant and the applicant’s spouse in the main business in Australia have a net value of at least $75,000 and had a net value of at least $75,000 throughout the period of 12 months ending immediately before the application was made and have been lawfully acquired by the applicant and her spouse. I find that cl.892.212(c) is satisfied.

26. I find that cl.892.212(a) is not satisfied.

27. For clause 892.212 to be satisfied subclause 892.212(b) would also have to be satisfied. This is because two of the three requirements need to be satisfied. Subclause 892.212(b) has not been considered by the departmental delegate in their decision as they did not need to do so. In light of my findings in relation to cl.892.212(c) the matter will be remitted to the Department for it  to consider cl.892.212(b) and any other criteria for the grant of the visa which remain to be assessed.

    DECISION

    The Tribunal has no jurisdiction in relation to the application of the second-named applicant.

    In respect of each of the first-named and third-named applicants, the Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 892 State/Territory Sponsored Business Owner (Residence) visa:

    ·     cl. 892.212(c) of Schedule 2 of the Regulations.

    Sue Raymond
    Senior Member