Shao (Migration) - [2023] AATA 909

Shao (Migration) [2023] AATA 909 (28 March 2023)

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Caiying Shao
Ms Jiayu Gao
Mr Jiasheng Gao
Mr Song Gao
REPRESENTATIVE:  Mr Yunfei Wu (MARN: 1460724)
CASE NUMBER:  1929581
HOME AFFAIRS REFERENCE(S):          BCC2018/8577
MEMBER:Peter Ranson
DATE:28 March 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Residence) (Class DF) visas.

Statement made on 28 March 2023 at 12:46pm

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) visa – turnover of main business – Business Activity Statements included in the application – close temporal connection – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 892.211, 892.221, 892.321

CASES

Nasirzadeh & Ors v Minister for Immigration & Anor [2019] FCCA 1115
Niasar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 213

STATEMENT OF DECISION AND REASONS

BACKGROUND

Mrs Caiying Shao visited Australia many times from 2011 to 2014. In October 2014, she purchased a 1/3^rd interest in a company called Cube Office Furniture Pty Ltd, which operates a retail business selling office furniture. In December 2017 she applied for Subclass 892 visas for herself and her family.
Mrs Shao needed to comply with many criteria to be granted a Subclass 892 visa. Two of which require (i) providing business activity statements with the application, and (ii) the business turnover must reach a certain level.
An application must Include the requisite BAS in the application, which is fundamental to the grant of an 892 visa. The courts have clarified this means there must be a close temporal connection between the lodging of the application and providing the BAS to the delegate.
Mr Wu is adamant a bundle of documents, including the BAS, were sent to the department soon after Mrs Shao lodged her application, yet the department file and the delegate comments suggest they were not lodged until sometime later.
If a close temporal connection can be established that criterion can be satisfied, and the turnover of the business can be considered.
The Tribunal provided several extensions of time for Mr Wu to duly evidence the BAS were included in the application. In response, he provided documents which were not persuasive. Accordingly, the application must fail and there is no utility in considering the business turnover.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

PROCEDURAL HISTORY

Mrs Shao and her family applied for Subclass 892 (State/Territory Business Owner) Business Skills (Residence) (Class DF) visas on 29 December 2017. As the primary visa applicant, Mrs Shao must satisfy the primary criteria set out in Subdivision 892.2. The secondary applicants applied as members of the family unit of Mrs Shao and need only satisfy the secondary criteria set out in Subdivision 892.3.
On 18 October 2019, a delegate of the Minister for Home Affairs refused to grant the visas under s 65 of the Migration Act 1958 (Cth) on the basis Mrs Shao did not satisfy the requirements of cl.892.211 of Schedule 2 to the Migration Regulations as no supporting evidence was provided to accurately determine the turnover of the business for the purpose of the main business definition. Further, the delegate said Mrs Shao did not provide any BAS with her application rather supplying them later.
The delegate found the secondary applicants could not be granted Subclass 892 visas as they did not meet the primary criteria, nor did they meet the secondary visa criterion (cl.892.321) requiring them to be members of the family unit of a person who met the primary visa criteria. Mrs Shao and her family then applied to this Tribunal for review of a decision.
The first issue to decide in this case is whether the BAS were included in the application. If so, the second issue is whether the turnover, net of GST, of the nominated main business was high enough to meet the requirements of the main business definition.

CONSIDERATION OF CLAIMS AND EVIDENCE

A note about departmental policy

Where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[1]
[1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).
To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the policy is consistent with the requirements as set out in the legislation as it would be an error of law for the Tribunal to state it must (emphasis added) follow what policy says concerning the scope or meaning of a provision in the Act or Regulations.

Why did the delegate refuse the application?

Clause 892.211(2)(b) requires the BAS for the two years immediately before the time of application to be included in the application. The meaning of the words ‘included in the application’ has been clarified by the courts to mean there must be a close temporal connection between the time of application and the provision of the BAS to the department.
The first issue is whether there was a close temporal connection between the lodgment of the BAS and the time of application as required by cl.892.211(2)(b). If the application succeeds on this issue, this decision will proceed to the second issue described below.
The second issue in this case requires a determination of the period to be tested and the turnover, being sales net of GST, for that period as part of satisfying the main business definition. Satisfaction of the main business definition forms part of the requirements of cl.892.211(1), which means the nominated business must satisfy that definition at some time prior to the time of application. The Tribunal considers any period of 12 months prior to the time of application during which the applicant held an ownership interest in the nominated main business is sufficient for the purpose of the main business definition.

Australian Business Number and Business Activity Statements

The delegate’s decision made references to the documents which accompanied the application as follows:
‘A range of documentation was provided with this application …’
‘The applicant did not include any BAS statements with their application.’
‘As no BAS statements were provided with your application, I provided the applicant with the opportunity to provide the required BAS statements.’
Clause 892.211(2) must be satisfied as at the time of visa application. It requires for each business to which cl.892.211(1) applies:
a.an Australian Business Number has been obtained, and
b.all Business Activity Statements required by the Australian Taxation Office (ATO) for the two years immediately before the visa application was made have been submitted to the ATO and have been included in the application.
On 24 November 2022, the Tribunal conducted a search of the Australian Business Register on ABN 56 602 495 027 and confirmed the entity is Cube Office Furniture Pty Ltd. The ABN and Goods & Service Tax registration has been current since 23 October 2014. Having regard to these findings, the Tribunal is satisfied Ms Shao satisfies cl.892.211(2)(a).
The Regulations do not provide a definition of the words ‘included in the application’ as used in cl.892.211(2)(b) nor does departmental policy. In Nasirzadeh at [45] Judge Driver said in relation to cl.892.211(2):[2]
‘… clause 892.221(2) [should be 892.211(2)] imposes a “time of application” criterion requiring, among other things, that BAS “have been included in the application”. This, too, imports an “objective temporal test”.
[2] Nasirzadeh & Ors v Minister for Immigration & Anor [2019] FCCA 1115
Nasirzadeh imposes a time of application requirement on criterion which include the words ‘included in the application’ such as cl.892.211(2) regardless of what headings may or may not appear in the regulations. When considering a time of application criterion, the objective temporal test referred to in Nasirzadeh means there must be a close connection in time between the action required by the criterion and the time of application.
The textual aspects of cl.892.211(2) point strongly to the conclusion an application will be unsuccessful if it failed to contain evidence:
(a) each BAS required by the Commissioner of Taxation during the 2 years immediately before the application was made has been submitted to the Commissioner, and
(b) copies of those BAS have been included in the application.
The requirements in cl.892.211(2) are expressed in imperative or obligatory terms. The use of the imperative ‘has been’ naturally indicates the requirements to which they relate are necessary constituent elements of a Subclass 892 visa application. In the ordinary course, the natural meaning of the words ‘has been’ means the matter to which they relate are obligatory.
Clause 892.211(2) is not expressed in indeterminate language rather it imposes a requirement which can be easily identified and applied. Where BAS are not included in the application [for a Subclass 892 visa], and are first provided at some later time, the regulation is not satisfied, and the application cannot succeed.
An application which did not include copies of the required BAS as lodged could be perfected provided there is a close connection in time between the action required by the criterion and the time of application. The words ‘included in’ and ‘accompanied by’ both import an objective temporal test and the courts have identified a period of more than five months stretched even the term ‘accompanied by’ beyond the intended temporal connection required for this purpose.[3]
[3] Niasar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 213 at [31].
Mr Wu was adamant the BAS for Cube had been provided with the application amongst a bundle of other documents. He explained the application was lodged by him when he was with another firm and the file had not been transferred. Mr Wu provided a copy of a letter of authority dated 6 March 2023 signed by Ms Shao and addressed to the previous firm.
Mr Wu and Ms Shao were on notice there was an issue with the apparent non-lodgment of the BAS with the application when the delegate’s decision issued on 18 October 2019. The Tribunal is at a loss to understand why it took until 6 March 2023 for Mr Wu to obtain the authority to release the file from his previous firm given his insistence the BAS were included in the application and the contents of that file would prove that. This decision does not turn on the reason for that delay.
The Department file includes an e-mail from Mr Wu dated 3 October 2019, which includes: ‘BAS - July 2016 to Sept 2017.pdf, BAS - Oct 2017 to June 2019.PDF, BAS - Jun 2019.PDF’. The ‘Applicants Outline of Submissions’ dated 12 December 2022, says: ‘The said BAS report (October 2015 to December 2017) is now (emphasis added) attached for the tribunal’s record.’
Given the date of application (29 December 2017), the Tribunal considers the BAS required to satisfy cl.892.211(2)(b) are from 1 October 2015 to 30 September 2017 and they have been provided. The question is whether they were ‘included in the application’ as required by cl.892.211(2)(b).
The 12 December 2022 submission also says at paragraph 10:
‘At the time of providing further information, various business supporting documents and records were submitted by way of email. The Applicant submits that it is not reasonable for the officer to conclude that there is no such BAS report while the Applicant has submitted the full financial statement prepared by her accountant for financial year 2016 and 2017.’
The Tribunal is at a loss to understand the above comment because providing accountant prepared financial statements for the 2016 and 2017 financial years is not the same as providing business activity statements.
Numerous requests were made and granted for extensions of time to provide the evidence Mr Wu assured the Tribunal was in the file of the previous firm. On 21 March 2023 Mr Wu provided a copy of a letter dated 5 July 2018 from Pentana Stanton Lawyers addressed to the department. His said this letter confirms the documents, in particular the BAS for the period required for the application, were provided to the department. This letter says:
‘We refer to the above matter and confirm we act for Ms Caiying Shao, the applicant.
Please find attached supporting document for the visa application of the applicant.
Should you have any queries, please do not hesitate to contact the writer.’
This letter does not do what Mr Wu says it does. Firstly, it makes no specific reference to the nature of the documents it says are attached and specifically no reference to BAS. Secondly, it is dated 5 July 2018 and appears to confirm the comment of the delegate in the decision, that is, the application did not include the BAS. Even if the BAS were provided with the letter 5 July 2018 letter, which has not been established, that is more than six months after the time of application. The more likely scenario is the requisite BAS were first provided by e-mail on 3 October 2019. This decision does not turn on whether the BAS were provided in July 2018 or October 2019.
Applying Niasar, the Tribunal finds there is no close temporal connection between the time of application and the lodging of the BAS assuming the attachments to the letter dated 5 July 2018 included the BAS, which is unknown, because the application is dated 29 December 2017, which means the time delay was more than six months and possibly closer to 21 months.
Given the findings above, the Tribunal is not satisfied cl.892.211(2)(b) is met. As one of the essential requirements for the visa is not met, the decision under review must be affirmed. As the application cannot succeed there is no utility in considering cl.892.211(1) being the other criterion on which the delegate refused the application.

The Tribunal must also affirm the decision not to grant the secondary applicants Subclass 892 visas as they do not meet the secondary visa criterion (cl.892.321) requiring them to be members of the family unit of a person who holds a Subclass 892 visa, and there is no evidence they meet the primary visa criteria for this subclass.

DECISION

The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Peter Ranson
Member

Date of hearing:	14 December 2022
Type of hearing:	Microsoft Teams video
Solicitors for the Applicant:	Mr Yunfei Wu (MARN: 1460724)
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