Shackell (Migration)

[2019] AATA 5342

Shackell (Migration) [2019] AATA 5342 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Stuart Gordon Shackell
Mrs Heidi Jessica Shackell
Mr Kylan Sean Shackell
Mr Connor Nathaniel Shackell

CASE NUMBER:  1620668

DIBP REFERENCE(S):  BCC/2017/653106 BCC2015/3648879 BCC2015/3669656

MEMBER:Susan Hoffman

DATE:26 November 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

`Statement made on 26 November 2019 at 9:58am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) – ownership interest in actively operating main business for two years prior to application – operating as sole trader as well as through businesses – Business Activity Statements not included with visa application – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 55, 65

Migration Regulations 1994 (Cth), r 1.11, Schedule 2, cl 892.211

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 on 5 December 2016 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958 (the Act).

2.    The visa applicant applied for the visa on 3 December 2015. At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor).

3. The main applicant (henceforth the applicant) in this case is seeking to satisfy the criteria for grant of a Subclass 892 (State/Territory Business Owner) visa, as set out in Part 892 of Scheduled 2 to the Migration Regulations 1994 (the Regulations).

4.    The delegate in this case refused to grant the visa on the basis that she was not satisfied that the applicant met clause 892.211; that is, she was not satisfied that the applicant had an ownership interest in one or more actively operating main businesses in Australia for at least 2 years immediately before the application was made.

5.    The applicant was invited to provide relevant information prior to the hearing.

6.    The applicant appeared before the Tribunal on 14 November 2019 to give evidence and present arguments. The other applicants were present but did not give evidence at the hearing.

7.    The applicants were represented in relation to the review by their registered migration agent, who attended the hearing as well.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

9.    The issue in the present case is whether the applicant meets clause 892.211 which sets out that the applicant has had, and continues to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application was made. Also relevant is whether or not Business Activity Statements (BAS) were lodged at the time the visa application was made.

1. As the application was made 3 December 2015, the relevant two year period is 3 December 2013 to 3 December 2015.

2. Regulation 1.11 defines a main business in relation to an applicant. One of the criteria is that for a business to be a main business, where it is a private company with an annual turnover of less than $400,000, the person (or the person and their spouse or de facto), have to have at least a 51% share of the business.

3. According to the delegate’s decision record, for the purpose of meeting clause 892.211, the applicant nominated two business, as follows:

   ·Stuart G Shackell Pty Ltd (ABN 64 601 047 134) trading as Signarama Morley

   ·Rockwood Feature Walls Pty Ltd (ABN 84 160 166 281).

4. The applicant claimed 100% ownership of Stuart G Shackell Pty Ltd from1 September 2014. According to ASIC records, the applicant owned 100% of the shares in this company from 4 August 2014.

5. The applicant provided financial statements for the year ended 30 September 2015 which showed a turnover of $266,952.

6. The Tribunal is satisfied, as was the delegate, that the applicant had an ownership interest in an actively operating main business - Stuart G Shackell Pty Ltd - in Australia for the period 1 September 2014 to the date of application which was 3 December 2015. However that does not cover the two years before the application was lodged, from 3 December 2013.

7. With regard to Rockwood Feature Walls Pty Ltd, the annual turnovers for the years ending 30 September 2013 and 30 September 2014 were $11,250 and $45,920 respectively. The applicant owned 50% of this business. The other 50% was not owned by the applicant’s spouse or de facto. On this basis the Tribunal finds that Rockwood Feature Walls Pty Ltd does not meet the criteria to be found to be a main business.

8. This means that the applicant has not met the criteria set out in clause 892.211 based on the two companies included in his visa application form.

9. At hearing the applicant said that he understands that now but did not realise it when he lodged his application for a visa with the Department. He did it on his own, without advice from a migration agent. He said that it was his understanding that you could only nominate two businesses and he used what he thought were the two main businesses, Rockwood and Signarama. He had not seen the legal definition.

10. In response to an invitation by the Tribunal for the applicant to provide further information prior to the hearing, his representative submitted that the applicant had also operated as a sole trader, trading as Wall Zone Australia, during the relevant period.

11. It was acknowledged by the representative that given the information before the delegate, the delegate’s decision was correct.

12. The following claims were made in the written submission:

    ·     Rockwood traded from early 2013 until deregistration on 22 August 2018. The business was formed to sell prefabricated feature walls.

    ·     Rockwood customers asked for the products to be installed. Rather than subcontract this to another business, the applicant did the installation as a sole trader through Wall Zone Australia and customers were billed by Wall Zone Australia. That business continues to operate today.

    ·     The applicant has never openly promoted Wall Zone Australia. The applicant, operating as a sole trader (Wall Zone Australia) registered for GST from 1 April 2014.

13. The documents include evidence of the applicant being registered as a sole trader from 31 August 2012 with an ABN of 92 722 901 770 and an ANZSIC Industry Code of 32440 which is the code for house painting, decorating and related trades.

14. An ASIC search on that ABN shows that although the ABN was active from 31 August 2012, it was not registered for GST until 1 April 2014. According to information on the Department’s file, the applicant “ran installation, wallpaper and painting jobs” using this ABN, and it was a labour only business with no assets.

15. According to financial statements for the applicant trading as Wall Zone Australia, the turnover for the period from 1 November 2013 to 30 June 2014 was $26,857 and for 2014/15 was $20,146. The business made a profit of $8,994 in 2013/14 and a loss of $19,079 in 2014/15.

16. Examples of Wall Zone Australia invoices dated from 20 November 2013 to 9 June 2014 were submitted in values from $620 to $3,148.

17. Also submitted were BAS statements for periods from 1 April 2014 to 30 June 2014, 1 July 2014 to 30 September 2014 and 1 October 2014 to 31 December 2014. According to the statements, they were lodged with the  Australian Taxation Office (ATO) on 31 July 2014, 17 September 2015 and 17 September 2015 respectively.

18. The applicant said that having arrived in Australia, the primary aim was to develop or find a business. He and his wife had run a successful business in South Africa for twelve years which was a fitout company, including painting, wallpapering and putting up partitions.

19. The man he went into partnership with to establish Rockwood was someone he knew from South Africa. The accountant suggested that he set up as a sole trader at the same time as Rockwood was set up, which was what happened. As a sole trader he could respond to whatever opportunities came up.

20. The applicant said that his Rockwood partner was not very active in the business, which had two elements to it; purchasing the product and then installing it. He ran the installation side through Wall Zone. He agreed that installing the feature walls could lead to other work, such as customers asking for other walls to be painted. 

21. The applicant said that he realised that Rockwood would not generate enough business to sustain them, and he looked around for another business he could link that with. He said it became apparent that partnering with his Rockwood partner in other enterprises was not going to work and he ended up buying the Signarama franchise.

22. The written submission dated 16 October 2019 stated that the Wall Zone business continues today and installs signage for customers of Stuart G Shackell Pty Ltd trading as Signarama.

23. The Tribunal put it to the applicant that the installation and decorating work done through Wall Zone appeared to be part of the building and construction industry whereas the work undertaken by Wall Zone for Signarama work seemed to fit better with the printing and graphic design industry.

24. The applicant contended that some of the work done by Signarama was related to building and construction, and had to comply with, for example, building regulations.  

25. The applicant said that Signarama had around 1,000 active customers and they were other businesses. Many businesses who were customers were involved in rebranding, such as Helloworld Travel. Signarama would do the graphics on windows, external pylons, vehicles and internal signage. Other customers wanted refits of their premises and the applicant referred to the coat of arms on the wall of the hearing room as an example of the type of work undertaken.

26. The Tribunal accepts that at least part of the work undertaken by Signarama was related to the building and construction industry, in particular the work related to refits.

27. The representative submitted that the sole proprietorship should not be seen as part of either Rockwood or Signarama but as a business in its own right, as (amongst other things) it provides repeated and continuous services, keeps its own records and provides services to customers for a fee.

28. The Tribunal accepts that the work undertaken by the applicant as a sole proprietorship meets the definition of qualifying business since it started operating on 31 August 2012 until today, even though the nature of the work undertaken has changed somewhat; there is some overlap.

29. Having accepted that the applicant trading as Wall Zone Australia meets the definition of a main business from 3 December 2013 through to today, the Tribunal then has to consider whether clause 892.211(2) has been met.

30. This requires the business to have obtained an Australian Business Number (ABN) and that all Business Activity Statements required by the ATO for the two-year period before the application was made, were submitted to the ATO and were included in the visa application.

31. As noted, BAS statements for periods from 1 April 2014 to 30 June 2014, 1 July 2014 to 30 September 2014 and 1 October 2014 to 31 December 2014, which were submitted to the Tribunal, had been lodged with the ATO. However as the sole proprietorship was not included in the original visa application, the BAS statements were not included in that application. On that basis the Tribunal finds that clause 892.211(2) was not met.   

32. The representative submitted that with regards to the BAS statement for Wall Zone not being submitted at the time of the visa application, it was covered by section 55 of the Migration Act 1958. That states as follows:

    Section 55

    Further information may be given

    (1)  Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

(2)  Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

1. The Tribunal observes that the decision to grant or refuse to grant a visa was made on 3 December 2015. The application made to the AAT was to review a decision made by the Department, and was not an application for a visa. The Tribunal has no jurisdiction to grant a visa. With regard to the visa class relevant to this review, the Tribunal can either affirm a decision made by a delegate or remit the application for reconsideration with a particular direction. The decision to grant a visa remains with the Department. The additional information provided in this case – the BAS returns for the sole proprietorship - have been submitted many years after the visa application was made.

2. The representative also submitted that he did not believe that the legislation was intended to bring about the situation the applicant has found himself in. He argued that the applicant came to Australia in good faith, entered into business in good faith and lodged his visa application in good faith. He contended that if the Tribunal was to find that Wall Zone was conducting a main business, and that the applicant met the other relevant criteria, it was absurd that not putting in a BAS statement tripped him up.

3. The representative said that it was grotesque that the applicant and his family would have to leave the country because of the failure to lodge a BAS statement. He said that subclass 888 is today’s equivalent of subclass 892, and the requirement to lodge a BAS statement is no longer required; and that there is nothing in the explanatory statement that explains this revision.

4. The representative requested that if the Tribunal could not make a decision favourable to the applicant, then the Tribunal make a referral to the Minister.

5. The Tribunal considers the applicant to be honest in giving his evidence. However it does not consider that there are sufficient grounds for the Tribunal to request the Minister intervene in this case. Making such a request is open to the applicant.

6. With regards to the three secondary applicants, they applied for Business Skills (Residence) (Class DF) Subclass 892 visas on the basis of being members of the same family unit as an applicant who meets the primary criteria for this visa.

7. There was no evidence before the Tribunal that any of the three secondary applicants could meet the primary criteria in their own right. As the Tribunal has found that the primary applicant does not meet the primary criteria, the visa applications made by the secondary applicants cannot be granted.

DECISION

1. The decision under review is affirmed.

Susan Hoffman
Member