Star (Migration)

[2022] AATA 2040

Star (Migration) [2022] AATA 2040 (21 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Alexander Star
Mrs Alexandra Star
Ms Sofiya Star
Ms Avily Maria Star
Ms Lei Alexandra Star

REPRESENTATIVE:  Mr Harbir Singh N Durgadev Singh (MARN: 0004151)

CASE NUMBER:  1930763

HOME AFFAIRS REFERENCE(S): BCC2018/620103 BCC2018/654196

MEMBER:Peter Ranson

DATE:21 June 2022

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 21 June 2022 at 9:41am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – ownership interest in main business – active operation at all relevant times – ‘main business’ definition – failure to include Business Activity Statements (BAS) in the visa application – ‘time of application’ criterion – objective temporal test – contemporaneous evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 54, 55, 65, 134
Migration Regulations 1994 (Cth), r 1.03, 1.11A; Schedule 2, cls 892.211, 892.321

CASES
Nasirzadeh & Ors v Minister for Immigration & Anor [2019] FCCA 1115

STATEMENT OF DECISION AND REASONS

INTRODUCTION

1. Mr Alexander Star and his family are from Russia. They came to Australia progressively from 2009 to 2014 and Mr Star started a business sourcing fresh fruit and vegetables as well as herbs and spices exporting them to various counties including their native Russia. They were granted Subclass 163 visas which were due to expire on 13 February 2018 and they sought and obtained sponsorship from Business & Skilled Migration Queensland (BSMQ). Armed with that sponsorship they applied for Subclass 892 visas on 5 February 2018. On 25 October 2019, a delegate of the Minister for Home Affairs refused to grant them Business Skills (Residence) (Class DF) visas under s 65 of the Migration Act 1958 (Cth) (the Act). Mr Star then applied on 30 October 2019 for review of that decision.

2. At the time of application, Class DF contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and Subclass 893 (State/Territory Sponsored Investor). Mr Star and his family are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.

3. The delegate in this case refused to grant the visas on the basis Mr Star did not satisfy the requirements of cl.892.211 of Schedule 2 to the Regulations because there was an absence of information with the application to establish his ownership interest in the export business and BAS for the two years immediately before the time of application were not included in the application.

4. The issue in this case centres around what documents were submitted with the application and whether the requirement to include BAS in the application is a time of application criterion or a time of decision criterion.

5. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

BACKGOUUND

1. Mr Star appeared before the Tribunal on 16 June 2022 to give evidence and present arguments (the Hearing). The Tribunal also received oral evidence from Mr Star’s former business partner, Mr Georgiy Hleborodov (known as George). The Hearing was conducted with the assistance of an interpreter in the Russian and English languages. The applicants were represented in relation to the review by Mr Harbir Singh (known as Harry) who also attended the Hearing.

2. All parties attended the Hearing by video link facilitated by the Tribunal utilising Microsoft Teams. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of Mr Star, Mr Singh and Mr Hleborodov. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied all parties were given a fair opportunity to give evidence and present arguments.

1. The secondary applicants applied based on being members of the family unit of the Applicant. 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.

2. Certain criteria must be satisfied during the two-year period ending immediately before the date of application, that is, 5 February 2016 to 4 February 2018 (the Application Period).

10.  In accordance with the President’s Direction,[1] the Tribunal will only address those elements of the criteria on which the delegate made an adverse finding, being the satisfaction of cl.892.211.

CONSIDERATION OF CLAIMS AND EVIDENCE

[1] Presidents Direction for Conducting Migration and Refugee Reviews dated 1 August 2018.

What evidence was considered by the Tribunal?

11.  The Tribunal had before it the following evidence:

Department File	Digitised file of 477 pages provided by the Department of Home Affairs.
Tribunal File	Digitised file of 447 pages comprising various documents provided to the Tribunal.
ASIC Search	Search of the records of the Australian Securities & Investments Commission (ASIC) in relation to Alimpex Pty Ltd ACN 147 660 928 conducted by the Tribunal on 2 February 2022.
Movement Records	Search of the records of the Department of Home Affairs in relation to Mr Alexander Star conducted by the Tribunal on 8 March 2022 to ascertain the days onshore and offshore during the Application Period.
Pre-hearing Submission	Received on 28 March 2022 including financial statements and BAS for Alimpex and various other documents in support of the visa application.
Post-hearing Submission	Submission of 43 pages dated 18 June 2022 including copies of Business Activity Statements.

12.  The Tribunal has considered all the material supplied to it and the evidence produced by the Applicant and the witnesses. Not all the evidence is referred to at length, or at all, in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes impractical or unnecessary to canvass all aspects, arguments, and history of a case in the decision record.

13.  The Tribunal notes, 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”.[2]

[2] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).

14.  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.

Does Mr Star have an ownership interest in main business?

15.  The delegate found there was no evidence provided with the application to ascertain the ownership interest of Mr Star in the nominated business. The issue then is what ownership interest does Mr Star have and what evidence is now available to support that.

16.  Clause 892.211(1) requires the applicant had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made and continued to have that interest at the time the visa application was made. No more than two businesses can be nominated for this purpose.[3]

[3] Reg 1.11(2).

17.  Case law has established a business is not a legal entity but rather an enterprise or undertaking.[4] It is therefore important for the Tribunal to identify the business to which the definition of main business must be applied. It is also important to note one business can be owned by multiple entities and conversely, multiple businesses can be owned by one entity. For the avoidance of doubt, an Australian Business Number attaches to an entity, not to a business.

[4] Ibrahim v MIAC [2009] FCA 1328 at [30].

18.  The business relied on by Mr Star to satisfy these requirements exports fresh fruit and vegetables plus herbs and spices (the Export Business), which is conducted by Alimpex Pty Ltd ACN 147 660 928 (Alimpex). Accordingly, the Tribunal must consider the nature of Mr Star’s interest in this business, whether the business was actively operating and whether it met the definition of ‘main business’ in the period commencing two years immediately prior to the date of application and as at the date of application.

Does the applicant have an ownership interest in each business relied on at all relevant times?

19.  An ‘ownership interest’, in relation to a business, means an interest in the business as:

·a shareholder in a company that carries on the business, or

·a partner in a partnership that carries on the business, or

·the sole proprietor of the business.

including such an interest held indirectly through one or more interposed companies, partnerships or trusts (reg 1.03 of the Regulations and s 134(10) of the Act). Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of reg 1.11A of the Regulations, set out in the attachment to this decision.[5]

[5] Reg 1.11A(1).

20.  George gave evidence first at the Hearing. He explained he had been a shareholder in Alimpex until 2015. He said the Export Business was started by Mr Star because he already had an extensive network of suppliers of fresh fruit and vegetables in Australia and Alimpex was formed for the purpose of operating the business.

21.  The ASIC Search revealed Alimpex was registered on 2 December 2010. Mr Star and George were the initial directors and George was the secretary. George ceased to be a director and secretary on 22 June 2015 and Mr Star was appointed secretary on that date.

22.  The Share capital of Alimpex is divided into 99 A class shares of $1.00 fully paid and 1 B class share of $1.00 fully paid. Mr Star has held the 99 A class shares since registration and George held the 1 B class share from registration until 22 June 2015 when he exited the company, at which time his share was transferred to Mr Star. That means Mr Star has held 99% of the shares in Alimpex from 2 December 2010 and 100% of the shares since 22 May 2015. According to the ASIC Search, all issued shares are beneficially owned.

23.  Accordingly, the Tribunal is satisfied Mr Star did have and does have an ownership interest in the Export Business at all relevant points in time because he has held first 99% and then 100% of the shares in Alimpex, which owns and operates the Export Business.

Was the Export Business actively operating at all relevant times?

24.  Having established the ownership interest of Mr Star in the Export Business the Tribunal turns its attention to the issue of whether that business was actively operating.

25.  To meet cl.892.211(1) the Tribunal must be satisfied the relevant business or businesses were actively operating both at the time of making the visa application and during the two years immediately before.

26.  The term ‘actively operating’ is not defined in the Act or Regulations. In considering whether this requirement is met, the Tribunal may consider whether the business exhibited activity of a ‘repetitive, continuous and permanent character’ at the relevant times, in which the business actively sought to generate business, in fact generated trade and custom and derived some financial gain for its activities in the relevant period.[6]

[6] Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513 at [71].

27.  Mr Star provided copies of the financial statements for Alimpex, the operator of the Export Business, for the years ended 30 June 2016 to 30 June 2021.[7] The financial statements cover the Application Period and reveal the following:

[7] Financial statements for the year ended 30 June 2015 were provided and are not relevant to this decision as they pre-date the Application Period.

Year ended	30-06-2021	30-06-2020	30-06-2019	30-06-2018	30-06-2017	30-06-2016
Sales	19,988	234,928	460,635	250,414	353,596	195,731
Cost of sales	0	(234,928)	(460,635)	(250,414)	(353,596)	(195,731)
Commission	0	11,746	23,032	12,521	17,680	9,787
Other income	9,032	8,615	8,628	8,545	187	0
Expenses	(5,889)	(9,598)	(23,500)	(21,476)	(22,817)	(2,320)
Pre-tax profit	$23,131	$10,763	$8,160	($ 410)	($4,950)	$7,467

28.  It is immediately obvious from the above table the Export Business does not make any profit from the sale of produce rather from commission on those sales. Given the amounts shown for cost of sales equals the amount of sales, the Tribunal has considered whether the turnover of the Export Business is the amount shown as sales or the amount shown as commission.

29.  Whilst this may be a strange way of accounting for the income of the Export Business, the Tribunal considers the commission income is effectively the gross profit on sales and finds the turnover of the business to be the amounts described above as sales. The other income mostly comprises an employee contribution towards the cost of the business’s motor vehicle.

30.  In any event, during the six financial years shown above, the Export Business results can be summarised as follows:

(a)  Average annual turnover of $252,549,

(b)  Average annual commission income of $12,461 (including nil in 2021), and

(c)   Average annual pre-tax profit of $7,360.

31.  Both Mr Star and George confirmed one hundred percent of the sales of the Export Business are to overseas customers in Asia, the Middle East and Russia. Unsurprisingly, the Tribunal was unable to find a website for the Export Business because its customers are not in Australia.

32.  Nonetheless the Tribunal is satisfied the Export Business exhibited activity of a ‘repetitive, continuous and permanent character’ during the Application Period, in which it actively sought to generate business, in fact generated trade and custom and derived some financial gain for its activities in the relevant period because of the annual sales (average sales of ~ $250,000) and pre-tax profits (average pre-tax profit ~ $7,000) as shown above.

33.  Accordingly, the Tribunal is satisfied the Export Business was and is actively operating at all relevant points in time.

Does the Export Business satisfy the ‘main business’ definition at all relevant points in time?

34.  The next issue to consider is whether the Export Business meets the main business definition.

35.  To satisfy the requirements of cl.892.211(1), the business or businesses relied on by the applicant must meet the ‘main business’ definition at the time of application and during the two years immediately before. The term ‘main business’ is defined in reg 1.11 of the Regulations and is set out in full in the attachment to this decision. There are four elements to the definition, each of which must be satisfied for a business to be a main business.

36.  Firstly, the applicant must have or have had an ownership interest in the business. In considering this issue, the ownership interest does not need to be continuous or exist at a particular time.[8] ‘Ownership interest’ is defined in s 134(10) of the Act.[9] If a beneficial interest is relied on for these purposes, certain evidentiary requirements must also be met.[10] These provisions are set out in full in the attachment to this decision.

[8] Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328 at [32], considering similarly worded criteria in cls 845.213 and 845.221.

[9]  Reg 1.03.

[10] Reg 1.11A.

37.  Secondly, the applicant must maintain or have maintained direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business.

38.  Thirdly, the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business must meet certain thresholds:

·if the business is operated by a publicly listed company, the value of the ownership interest must be at least 10% of the total value of the business,

·if the business is not operated by a publicly listed company and the annual turnover of the business is at least AUD400 000, the value of the ownership interest must be at least 30% of the total value of the business,

·if the business is not operated by a publicly listed company and the annual turnover of the business is less than AUD400 000; the value of the ownership interest must be at least 51% of the total value of the business.

39.  Finally, the business must be a qualifying business. ‘Qualifying business’ is defined as an enterprise that is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public and is not operated primarily or substantially for the purpose of speculative or passive investment.[11]

[11] Reg 1.03.

40.  The Tribunal is satisfied the first and third elements of the main business definition are met because it has already found Mr Star has held a 99% ownership interest in Alimpex since registration and since 2015 a 100% ownership interest. Alimpex is the operator of the Export Business, is not a public company and has annual turnover during the Application Period of less than $400,000.

41.  Mr Star and George both confirmed the Export Business has no employees other than its directors. Accordingly, all the functions of managing the day-to-day activities of it must be carried out by the directors. George ceased to be a director of Alimpex in 2015, which means Mr Star was the only director during the Application Period, and so all the management and organisational functions of the Export Business could only be carried out by him.

42.  The Tribunal is satisfied Mr Star alone has maintained direct and continuous involvement in management of the Export Business from day to day and in making decisions affecting the overall direction and performance of the business since at least 2015 when George ceased to be a director. As such, the second element of the main business definition is met.

43.  The financial statements of Alimpex as the operator of the Export Business reveals no property or investment assets. It provides goods in the form of fresh fruit and vegetable plus herbs and spices on a seasonal basis to overseas customers and has generated modest pre-tax profits.

44.  The Tribunal is satisfied the Export Business is an enterprise operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public and is not operated primarily or substantially for the purpose of speculative or passive investment.

45.  Accordingly, the Tribunal is satisfied the Export Business does meet the definition of main business at all relevant points in time. Given the findings above, the Tribunal is satisfied cl.892.211(1) is met. The Tribunal has then considered cl.892.211(2).

Australian Business Number and Business Activity Statements

46.  One of the issues on which the delegate refused the Subclass 892 application was the apparent failure of Mr Star to provided copies of Business Activity Statements (BAS) as lodged with the Australian Taxation Office (ATO) for the two years immediately before the time of application. This issue turns on the difference between a time of application criterion and a time of decision criterion and what evidence a decision maker must consider before deciding an application.

47.  In deciding whether to grant or refuse to grant a visa, Section 54 of the Act requires the Minister to have regard to all the information in the application including information set out in the application or in a document attached to the application when it is made or given under s 55 of the Act.

48.  Section 55 of the Act says further information may be given until the Minister has decided whether to grant or refuse to grant a visa. An applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. The Minister is not required to delay deciding a case because the applicant might give or has told the Minister the applicant intends to give further information.

49.  Clause 892.211(2) must be satisfied as at the time of visa application. It requires each business to which cl.892.211(1) applies:

(a)  an Australian Business Number has been obtained, and

(b)  all BAS required by the 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.

50.  The Tribunal conducted a search of the ABN Lookup and has confirmed the ABN for Alimpex is 31 147 660 928 which has been current with GST registration since 23 February 2011. Accordingly, the Tribunal finds cl.892.211(2)(a) is met.

51.  The Subclass 892 visa application for Mr Star and his family was lodged on 5 February 2018. That is the time of application. Clause 892.211(2)(b) requires all BAS required by the ATO for the two years immediately before the visa application have been submitted to the ATO and (emphasis added) have been included in the application. It is an objective temporal test for the BAS to be included in the application. Lodgment before the time of application, say to the BSMQ for the state nomination, does not meet this requirement. Lodgment after the time of application, say at the request of a delegate of the Department of Home Affairs, does not meet this requirement.

52.  The meaning of the words ‘have been included in the application’ has been settled in Nasirzadeh & Ors v Minister for Immigration & Anor [2019] FCCA 1115. As Driver J said at [45]:

‘… clause 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”.

53.  Harry argued at the Hearing cl.892.211(2)(b) was a time of decision test. In his view the decision maker, first the delegate and now the Tribunal, had to consider all the evidence before making the decision as required by ss 54 and 55 of the Act. As the BAS were provided to the delegate on or about 10 October 2019, in any event before the decision was made on 25 October 2019, Harry says they were provided and so cl.892.211(2)(b) is satisfied.

54.  Whilst it is correct to say the decision maker must consider all evidence provided by an applicant before a decision made, it is also the case the law must be correctly applied to that evidence. This was made clear in the Member’s opening comments at the Hearing.

55.  It is not in dispute all BAS for the two years immediately before the time of application were provided to the delegate and are in the files and submissions provided to the Tribunal. The question is whether those BAS were included in the application?

56.  The was much discussion about this point at the Hearing. Mr Star confirmed he fully understood the issue and its importance. Harry at first said he could not be sure what had been included with the application. Then, after a further exchange he said he was sure the BAS had been included. The Tribunal asked him to provide evidence of that given the delegate was clear they were not on file at the time of decision and not included with the application.

57.  Harry referred many times to an e-mail on 11 October 2019 to him from the delegate as proof the BAS had been included with the application and had been temporarily misplaced (perhaps by the original delegate), then found. The e-mail exchanges between Harry and the delegate between 6 October 2019 and 16 October 2019, are reproduced below.

6 October 2019: Harry sends an e-mail to the delegate attaching Financial Statements including BAS for the financial year ended 30 June 2019.

10 October 2019: The delegate sends an e-mail to Harry stating the following, which was read out in part at the Hearing:

Dear Sir,

I note that you believe the documents have been sent.

The only documents on file are personal documents that are mentioned in the cover letter that is attached. These are not sufficient for me to assess the application.

None of the required business or personal asset documents have been supplied. None of the evidence in relation to an actual business being operated have been supplied. None of the ASIC documents, evidence of purchase of the business etcetera have been supplied.

This cover letter on file is exactly the same as the attached letter except the date has not [now] been replaced 5 February 2018 [previously 5 January 2018].

There is no indication on the file that any further documents other than various applications for BVB’s [Bridging Visa B] have been received at this office.

The net result is that the documents are not on file.

You must supply the business and related documents to me.

10 October 2019: Harry replies to the above with the following:

Dear Mr Mark

Thank you most kindly for your continued patience and advice.

I am attaching herewith the following documents:

1.     BSMQ (Business & skilled Migration Queensland) successful sponsorship approval. This was obtained after the following documents had been supplied to the Senior Case Officer - Cynthia Chen [at BSMQ] (i) Evidence of Business Management (ii) Form 1217 (iii) Form 949 (iv) 892 Application form (v) Copy of Australian Visa (vi) Business Ownership (vii) BAS Statements (viii) Evidence of Nett Assets (ix) Financial Documents (x) Business Registration Documents.

2.     ASIC Certificate of Registration of Company

3.     Company Search extracted from ASIC's Data Base

4.     Form 1217-Business Skills Profile

5.     Organisational Chart

Sir, once again I most humbly apologise for any inconvenience caused.

11 October 2019: The delegate replies to above email:

Dear Sir,

Thank you for those documents, I need you to supply the actual State/Territory Sponsorship Form 949 not the e-mail confirming Queensland support.

16 October 2019: The delegate sends an e-mail to Harry stating:

Dear Sir,

Thank you, I confirm that the State sponsorship form 949 is on the file. Sorry for my confusion.

58.  The e-mail of 11 October 2019 only refers to the Form 949 and not to the BAS. Harry’s submission originally dated 5 January 2018 and then redated 5 February 2018, which is included in the Department File and referred to by the delegate in the e-mail exchange above, states the Form 949 is enclosed with the submission together with various other documents relevant to the Subclass 892 visa application of Mr Star. None of the documents listed in this submission are BAS.

59.  Harry interprets the above exchange as confirmation the BAS were included in the application because the Form 949 was eventually located in the records of the Department. The Tribunal agreed with Harry at the Hearing the Form 949 was in the Department File and date stamped 6 February 2018. It is uncontroversial the Form 949 was included in the application. Just because the Form 949 was included in the application doesn’t mean the BAS were. The Tribunal’s interpretation of the above exchange is the Form 949 was with the Department and included in the application whereas the BAS were not. The above exchange shows the BAS were first provided to the Department on 10 October 2019 at the continued request of the delegate.

60.  Harry’s argument cl.892.211(2)(b) is a time of decision criterion is misconceived and cannot make it permissible to give that regulation a construction on its text which is not reasonably open to the decision maker especially given the decision in Nasirzadeh. The terms of cl.892.211(2)(b) are clear and not open to the construction preferred by Harry on behalf of the Applicant.

Harry’s post-hearing submission

61.  At the Hearing the Tribunal requested Harry provide evidence the relevant BAS were included in the application lodged on 5 February 2018. Harry was asked if he had a complete copy of all documents lodged at that time. He said he had that. It was suggested he provide a complete copy of what was lodged to substantiate his claim the BAS were included.

62.  In response Harry sent a submission of 43 pages dated 18 June 2022 beginning with an e-mail to the Tribunal which reads in part:

‘In the Australia Post Express Post Satchel a large number of relevant and critical documents in support of the Application were enclosed (Please see scanned copy of the Postal Receipt with the Original Sender to Keep Sticker). Among the documents there was a stack of numerous BAS statements covering the two-year period prior to the date of lodgment of the Application. Attached herewith are copies of the relevant documents BAS statements covering the relevant two-year period prior to lodgment of the Application. (Please refer to attachments).’

63.  The Australia Post Express receipt and sticker were already in the Department File and the BAS were included in the Pre-hearing Submission. Harry states in the e-mail of 18 June 2022: ‘Among the documents [lodged with the application] there was a stack of numerous BAS statements covering the two-year period prior to the date of lodgment of the Application.’ This statement contradicts the statement he made in his covering letter dated 5 February 2018 (redated from 5 January 2018) where he lists the documents he is including with the application. For completeness, below is an extract from that letter showing the entirety of the contents of the application:

‘We act for the above-named visa applicants. Form 956 duly signed is attached We enclose herewith the following documents:

1.Completed Queensland State sponsorship FORM 949 bearing the Agency seal.

2.Completed FORM 47BU providing the required Visa Application Fees of A$5094.00 (A$5000 + 0.98 % Credit Card charges) payable by Master Card. Also attached are the following Checklist documents:

•Certified copies of identity pages of passports of all the above visa applicants

•4 recent passport sized photographs of the above with the name of the person printed on the back of each photograph

•Certified copy of Marriage Certificate

•Certified copies of the divorce decree nisi of the Primary Applicant and that of his spouse Alexandra STAR

•Certified copy of Name Change of the Principal Applicant

•Certified copies of birth certificates of dependent children included in the Application

•Completed Forms 47A of2 NON-MIGRATING members of the family aged 18 years and above

3.Completed Form 1217 - Business Skills Profile: Business Owner (Residence). Attached is a Letter of Certification from Kate Bruce (Accountant) for Alexander STAR's Company Alimpex Pty Ltd certifying that the total amount of funds transferred since the grant of the subclass 163 Visa to date equals A$2. l million.

4.A letter from Dr Nisarat Chanupanich, MD, Senior Coordination Physician, Bumrungrad International Hospital, Bangkok Thailand stating that Alexandra Star - Principal Applicant's spouse, has undergone major surgery for the removal of her right breast implant advising that she should remain in Thailand for at least till the end of February 2018 before flying home.

64.  The e-mail of 18 June 2022 is not contemporaneous evidence. The letter of 5 February 2018 is the only contemporaneous evidence of what was included in the application and there is no refence to BAS. Accordingly, the Tribunal finds the BAS were not included in the application as required by cl.892.211(1)(b).

65.  Given the findings above, the Tribunal is not satisfied cl.892.211(2) is met. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

66.  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 met the primary visa criteria.

DECISION

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

Peter Ranson
Member

ATTACHMENT - LEGISLATION

Migration Regulations 1994

1.03Definitions

In these Regulations, unless the contrary intention appears:

…

ownership interest has the meaning given to it in subsection 134(10) of the Act.

…

qualifying business means an enterprise that:

(a)     is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and

(b)     is not operated primarily or substantially for the purpose of speculative or passive investment.

…

1.11Main business

(1)For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:

(a)the applicant has, or has had, an ownership interest in the business; and

(b)the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and

(c)the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:

(i)if the business is operated by a publicly listed company—at least 10% of the total value of the business; or

(ii)if:

(A)the business is not operated by a publicly listed company; and

(B)the annual turnover of the business is at least AUD400 000;

at least 30% of the total value of the business; or

(iii)if:

(A)the business is not operated by a publicly listed company; and

(B)the annual turnover of the business is less than AUD400 000;

at least 51% of the total value of the business; and

(d)the business is a qualifying business.

(2)If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.

1.11AOwnership for the purposes of certain Parts of Schedule 2

(1)Subject to subregulation (4), for Parts 132, 188, 888, 890, 891, 892 and 893 of Schedule 2, ownership by an applicant, or the applicant’s spouse or de facto partner, of an asset, an eligible investment or an ownership interest, includes beneficial ownership only if the beneficial ownership is evidenced in accordance with subregulation (2).

(2)To evidence beneficial ownership of an asset, eligible investment or ownership interest, the applicant must show to the Minister:

(a)a trust instrument; or

(b)a contract; or

(c)any other document capable of being used to enforce the rights of the applicant, or the applicant’s spouse or de facto partner, as the case requires, in relation to the asset, eligible investment or ownership interest;

stamped or registered by an appropriate authority under the law of the jurisdiction where the asset, eligible investment or ownership interest is located.

(3)A document shown under subregulation (2) does not evidence beneficial ownership, for subregulation (1), for any period earlier than the date of registration or stamping by the appropriate authority.

(4)Beneficial ownership is not required to be evidenced in accordance with subregulation (2) if the person who has legal ownership of the asset, eligible investment or ownership interest in relation to which the applicant, or the applicant’s spouse or de facto partner, has beneficial ownership:

(a)is a dependent child of the applicant; and

(b)made a combined application with the applicant; and

(c)has not reached the age at which, in the jurisdiction where the asset, eligible investment or ownership interest is located, he or she can claim the benefits of ownership of the asset, eligible investment or ownership interest.

Migration Act 1958

1. Cancellation of business visas

….

1. In this section:

….

ownership interest, in relation to a business, means an interest in the business as:

(a) a shareholder in a company that carries on the business; or

(b) a partner in a partnership that carries on the business; or

(c) the sole proprietor of the business;

including such an interest held indirectly through one or more interposed companies, partnerships or trusts.