Singh (Migration)

[2023] AATA 2210

Singh (Migration) [2023] AATA 2210 (12 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sonia Singh
Mr Gurpreet Singh
Master Jaskaran Singh
Miss Brisheen Kaur

REPRESENTATIVE:  Mrs Divya Jaggi (MARN: 1807587)

CASE NUMBER:  2103820

HOME AFFAIRS REFERENCE(S):          BCC2018/2855926

MEMBER:Peter Ranson

DATE:12 July 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Business Skills (Provisional) (Class EB) visas for reconsideration, with the direction the first named visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:

·cl 188.226 of Schedule 2 to the Regulations.

Statement made on 12 July 2023 at 8:37am

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – net business and personal assets – little to no supporting documentation included with visa application – further and better evidence and submissions provided to tribunal – business assets and net value of property included in calculation – bank accounts, insurance and jewellery excluded and decision does not turn on their value – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cls 188.226, 188.311

CASE
Drake v MIEA (No 2) (1979) 2 ALD 634

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mrs Sonia Singh and her husband, Mr Gurpreet Singh, are from India where the owned various businesses. She was invited to apply for a Subclass 188 visa on 1 June 2018, which she did on 30 July 2018. On 9 March 2021, a delegate of the Minister for Home Affairs refused to grant Sonia Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act). She then applied for review of that decision.

2. 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 primary criteria must be satisfied by at least one applicant. The primary criteria include common criteria, and criteria set out in streams. Sonia is seeking to satisfy the primary criteria for a Subclass 188 visa in the Business Innovation stream which include the criteria in Subdivisions 188.21 and 188.22 of Schedule 2 to the Regulations.

3. Other members of the family unit, being the secondary applicants, only need to satisfy the secondary criteria. They applied based on being members of the family unit of Sonia. The delegate found they could not be granted Subclass 188 visas, as they did not meet the primary criteria, nor did they meet the secondary visa criterion (cl.188.311) requiring them to be members of the family unit of a person who met the primary visa criteria.

1. There are two businesses involved in this application. They are a food packaging business operated by S M Foods based in India of which Sonia was a 50% partner with Gurpreet until it was transferred on 31 March 2018 to SSMS Enterprises which is owned 100% by Gurpreet.

2. The delegate refused to grant the visas on the basis Sonia did not satisfy the requirements of cl.188.226 of Schedule 2 to the Regulations because there was insufficient information provided to assess she and Gurpreet had net business and personal assets of at least A$800,000.

3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

A note about policy

1. 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).

2. 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.

What is this case about?

1. Sonia and Gurpreet came to Australia in 2017. They have businesses and properties in Chandigarh in India. They also have many insurance policies, some of which are managed funds with surrender values, cash in bank accounts and various items of personal gold and jewellery.

2. The delegate’s decision indicated little to no supporting documentation was included with the application or in the submissions made in response to requests from the delegate. Further and better submissions were made prior to the hearing and in response to matters identified at the hearing.

3. The issue in the present case is whether Sonia meets cl.188.226. That means the net business and personal assets of her, and her husband together, had to be at least $800,000 at the time of invitation, that is, 1 June 2018.

Net value of assets that can be applied to business – cl.188.226

1. At the time of invitation, cl.188.226 requires the business and personal assets of Sonia, Gurpreet, or Sonia and Gurpreet together, that can be applied to the establishment or conduct of a business in Australia have a net value of at least $800,000.

Business assets

1. The business known as SM Foods was operated by a partnership of Mrs Sonia Singh and Mr Gurpreet Singh. The Department file includes a copy of the deed of the partnership dated 16 July 2012. The head office is operated from a property described as Plot F-188 and there is a branch office operated a property described as Plot 992. These properties are discussed later.

2. Gurpreet explained at the hearing the business of SM foods was transferred to his business on 31 March 2018. The dissolution of the partnership firm of SM Foods and its transfer to SSMS Enterprises was confirmed by Mr Atul Goyal, who is a chartered accountant in Chandigarh. On 28 April 2023, he issued a statement in which he says:

   ‘This is to certify that, upon the dissolution of partnership firm SM foods (permanent account number – ACCFS4668Q) under the joint partnership of Sonia Singh and Gurpreet Singh on 31/03/2018, the land and building assets (Property number F-188, Industrial Area, Phase 8, Mohali, Punjab) was transferred under the joint personal assets of Gurpreet Singh and Sonia Singh. The remaining assets and liabilities were transferred to SSMS Enterprises under the sole proprietorship of Gurpreet Singh.’

3. The statement by Mr Goyal includes a copy of the final financial statements for the fiscal year ended 31 March 2018 for SM Foods. The Tribunal has reviewed those financial statements and concluded the net assets can be accepted at book value as they contain no unremarkable items. The net assets on 31 March 2018 were INR7,568,280 comprising the closing cash on hand and at bank balances, less final accounts payable.

4. The business known as SSMS Enterprises, which includes SM Infotech and from 1 April 2018 SM Foods, are operated by Gurpreet from Plot 992. Audited financial statements were provided and the balance sheet reveals Plot 992 does not form part of the assets of the business. The Tribunal has reviewed those financial statements and concluded the net assets can be accepted at book value as they contain no unremarkable items. The net assets on 31 March 2018 were INR23,339,948.

5. The Tribunal is satisfied the net business assets of Sonia and Gurpreet on 31 March 2018 were INR23,339,948 which equates to $451,974.

Bank accounts:

1. PNB is a reference to Punjab National Bank. PNB #0694 is in the name of S M Foods and so the balance is included in the assets of that business. PNB #1893 is an account in the name of Gurpreet. A statement of that account has been provided and shows a credit balance on 1 June 2018 of INR10,995.97. PNB #1886 is an account in the name of Sonia. A statement of that account has been provided and shows a credit balance on 24 May 2018 of INR317,275 being the closest balance to 1 June 2018.

2. The balances of the three nominated bank accounts, which the Tribunal estimates has a combined value of $6,353, has been excluded from the calculation of net business and personal assets on the grounds of materiality. This decision does not turn on that value being included.

Property:

1. Valuations of the three properties claimed by Sonia and her husband were prepared by Engineers Services Consultants of Chandigarh, India. Their letterhead describes them as ‘Approved Valuer of Institution of Valuers, Income Tax Dept, Banks, Financial Institutions.’ The valuations of the three properties are dated 22 May 2018 as follows:

Description	Owner	Value (INR)
Property 1: Plot No F-188	Mrs Sonia Singh & Mr Gurpreet Singh	41,500,000
Property 2: Plot No 708-E	Mrs Sonia Singh & Mr Gurpreet Singh	15,000,000
Property 3: Plot No 992	Mr Gurpreet Singh	17,500,000
Total	74,000,000

1. The valuations include extracts from the contracts by which properties 1 and 2 were acquired and confirm the purchasers are as shown above. Plot F-188 is the residential address in India of Sonia and Gurpreet.[2]

   [2] Net worth statement dated 1 May 2018 by Mr Atul Goyal, Chartered Accountant.

2. Mr Hardayal Mishra, who is a lawyer in Chandigarh, issued a legal opinion dated 28 April 2023 about the ownership of Plot 992. Plot 992 was the business address of S M Foods. The financial statements reveal it was not recorded as an asset of that business.

3. In his report Mr Mishra lists the history of ownership of the property from 1987 and how it was acquired by Gurpreet and his brother, Mr Ajit Singh, in 2000 from the estate of their late mother. He further reports on 10 January 2018, Ajit transferred his share of the property to Gurpreet who then became the sole owner. The report includes a copy of an affidavit from Ajit dated 10 January 2018 confirming the transfer. The Tribunal is satisfied Gurpreet is the sole owner of Plot 992.

1. The post-hearing submissions include statements for two loans in the name of S M Foods in respect of the properties. The loans are with Bajaj Housing Finance Ltd and the balance owing on 2 June 2018 are:

Loan number	Balance (INR)
424CFP34393933	9,646,487
424CFP34393728	9,694,729
Total	19,341,216

1. The Tribunal is satisfied the net equity in the 3 properties owned by Mrs Sonia Singh and Mr Gurpreet Singh on 1 June 2018 is INR54,658,784 (being INR74,000,000 less INR19,341,216) which equates to $1,079,360.

Insurance policies

1. The post-hearing submissions included a list of insurance policies, some of which are in the names of Sonia and Gurpreet, and some in the names of their children. The supporting documentation suggests some policies have a surrender value whereas some appear to be life cover only and not all show dates on or around 1 June 2018.

2. The policies in the names of the children cannot be counted as cl.188.226 refers only to the assets of the applicant and their spouse, not their children, and the life policies with no surrender value self-evidently cannot be counted.

3. The remaining surrender value appears to be small and as this decision does not turn on that value being included, the value ascribed to the insurances for this decision is nil.

Gold & Jewellery

1. Departmental policy regarding personal items including golden jewellery says: ‘If ownership, recognition and valuation of an asset cannot be reasonably established, that asset would not normally be considered for inclusion (this might include personal items such as clothing and personal jewellery or household items such as china, furniture, blankets or cutlery unless the officer is reasonably satisfied).’

2. The pre-hearing submissions include a valuation dated 25 May 2018 of the jewellery said to be owned by Sonia and Gurpreet, conducted by Jewellers Rajsons of Chandigarh, India. The valuation lists various items with the total value of INR917,620. The author of the valuation refers to the gold jewellery as shown to the valuer by Sonia and Gurpreet. The valuation makes no mention of the ownership of the items listed.

3. Whilst the valuation of the items has been established, the ownership of them has not. As this decision does not turn on the value of the jewellery being included and in accordance with departmental policy the value ascribed to the gold and jewellery for this decision is nil.

1. Based on the above, and using foreign exchange rates obtained from the Reserve Bank of Australia, the net business and personal assets of Sonia and her husband are as follows:

INR	Date	Rate	AUD
Business:
S M Foods	7,568,280	31-03-2018	49.96	151,487
SSMS Enterprises	23,339,948	31-03-2018	49.96	467,173
Total Business	30,908,228	618,659
Personal:
Property 1: Plot No F-188	41,500,000	01-06-2018	50.64	819,510
Property 2: Plot No 708-E	15,000,000	01-06-2018	50.64	296,209
Property 3: Plot No 992	17,500,000	01-06-2018	50.64	345,577
Less: Loans	(19,341,216)	01-06-2018	50.64	(381,936)
Total Personal	54,658,784	1,079,360
Overall Total	85,567,784	1,698,019

1. For these reasons, the Tribunal is satisfied the net business and personal assets of Sonia and Gurpreet well exceed $800,000 at the time of invitation to apply for the Subclass 188 visas and therefore Sonia meets the requirements of cl.188.226.

CONCLUSION

1. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa.

2. The secondary visa applicants are remitted for reconsideration by the Department based on the outcome of the application by the primary visa applicant.

DECISION

The Tribunal remits the applications for Business Skills (Provisional) (Class EB) visas for reconsideration, with the direction the first named visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:

·cl 188.226 of Schedule 2 to the Regulations.

Peter Ranson

Member

Date of hearing:	24 April 2023
Type of hearing:	Teams video
Solicitors for Sonia:	Mrs Divya Jaggi (MARN 1807587) of Auscan Consultants Pty Ltd