Suwadie (Migration)

[2023] AATA 2035

Suwadie (Migration) [2023] AATA 2035 (20 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Budi Suwadie
Mrs Supeiny Tjong
Miss Regine Bellicia Zhang
Mr Benedict Rexcell Zhang

REPRESENTATIVE:  Mr Gary Louis Maserow (MARN: 1173762)

CASE NUMBER:  2111769

HOME AFFAIRS REFERENCE(S):          BSS2019/5796539

MEMBER:Susan Hoffman

DATE:20 June 2023

PLACE OF DECISION:  Perth

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

·cls188.225 and 188.229 of Schedule 2 to the Regulations.

Statement made on 20 June 2023 at 8:19am

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – Business Innovation stream – ownership interest in main business – annual turnover requirement – travel agency – income received on behalf of airlines – direct and continuous involvement in management – genuine realistic commitment – shareholding in the company – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134
Migration Regulations 1994 (Cth), rr 1.03, 1.11, 1.11A; Schedule 2, cls 188.225, 188.229

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 Home Affairs on 19 August 2021 to refuse to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 15 November 2019. 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 Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. The primary criteria include common criteria, and criteria set out in streams. In this case, the first named visa applicant (‘the applicant’) applied for the visa in the Business Innovation stream.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 188.225 of Schedule 2 to the Regulations because the delegate was not satisfied that the turnover of the nominated business was at least AUD 500,000 for two of the four years prior to when the invitation to apply for the visa was made.

4. Mr Suwadie and Mrs Tjong appeared before the Tribunal on 8 June 2023 to give evidence and present arguments. The two other applicants, their children, did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant 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. The issue in the present case is whether the applicant meets cl 188.225. The Tribunal also considered whether the applicant met cl 188.229 (see Issue Two).

   ISSUE ONE – cl 188.225

   Ownership interest in main business – cl 188.225(1)

7. Clause 188.225(1) requires that for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant had an ownership interest in one or more established main businesses that had an annual turnover, in each of those years, of at least AUD500,000 (if the time of invitation was before 1 July 2021) or at least AUD750,000 (if the time of invitation was on or after 1 July 2021). As the time of invitation was 18 October 2019, the figure of AUD500,000 applies in this case.

8. No more than two businesses can be nominated for this purpose (reg 1.11(2)). ‘Fiscal year’, in relation to a business or investment, means, if there is applicable to the business or investment by law an accounting period of 12 months – that period; or in any other case – a period of 12 months approved by the Minister in writing for that business or investment: reg 1.03.

9. The businesses relied on by the applicant to satisfy these requirements are PT Manunggal Wisata (travel agency) and PT Birawa Sukses Sampurna (hotel and restaurant). The businesses were both based in Indonesia.

10. Accordingly, the Tribunal must consider the nature of the applicant’s interest in these businesses and whether they met the definition of ‘main business’ for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, as well as the annual turnover of the businesses in the relevant year.

11. The Tribunal observes that in their decision, the delegate referenced only PT Manunggal Wisata. Both businesses are listed as being a main business in the visa application form. The two businesses are also included in the employment history section of the same form. According to a letter dated 8 April 2022 from Western Australia’s Small Business Development Corporation submitted to the Tribunal, the turnover requirement was found to be met by combining the turnover from both businesses, and that was submitted in the State Nomination application. 

    Did the applicant have an ownership interest in each business relied on for at least 2 of the 4 fiscal years immediately before the time of invitation?

12. 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 (s 134(10) of the Act and reg 1.03 of the Regulations). Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of reg 1.11A of the Regulations.

13. In order to meet cl 188.225(1) the Tribunal must be satisfied that the applicant had an interest of this kind in the relevant business or businesses for at least 2 of the 4 fiscal years immediately before the time of the invitation.

14. Documents show that the applicant was invited to apply for the Subclass 188 visa on 18 October 2019: this is not in contention.

15. Based on financial statements for each of the main businesses, the fiscal years used in the application are the same as calendar years. This is generally the case for companies in Indonesia.[1] The two fiscal years relied on were calendar years 2016 and 2017.

    [1] Acclime Indonesia (2023) An overview of the financial year-end in Indonesia, accessed 9 May 2023 at

16. In his visa application form, the applicant claimed he had 99% ownership interest in each of the two main businesses.

17. The documents include a deed of incorporation for PT Birawa Sukses Sampurna. The deed recorded that the entity’s purpose and objective was hospitality and business, by providing rooms in which to stay, providing food and drink, laundry services and accommodation. The founders of the company were the primary applicant who held 594 shares and a Mr Rusli Bukit who held six shares. The applicant held the title of commissioner and Mr Bukit was the director. The deed was signed and dated 8 November 2012.

18. Various documents show that the company operated the Fuxion Inn. An organisational chart named the applicant as owner and Chief Executive Commissioner, in charge of the director, Mr Bukit, who oversaw a general manager with responsibilities for a restaurant, a hotel and administration which together employed 31 named staff. 

19. Another document recorded the applicant as having the rights to use “Fuxion”. This document was dated 2 July 2012. Photographs were submitted of the hotel and restaurant.

20. The documents include a Certificate of Company Registration dated 17 January 2012 for PT Manunggal Wisata which identified the core business as being a travel agency service. It operated as Manta Tour.

21. The sale of a share in the company was recorded in a notarised deed dated 19 January 2016. This recorded that as a result of the sale, the applicant, as president-director of PT Manunggal Wisata, continued to hold 599 shares in the company from the 600 shares that had been issued, and a Mr Djoko Murtomo had sold his single share to a Miss Emilia Felisia Ali. Based on this document, the applicant owned 99.8% of the shares in PT Manunggal Wisata.

22. An organisational chart recorded the applicant as the most senior person in the company, as the president director. A general manager, Mr Lili Mujoko, reported to him. Mr Mujoko was in charge of various departments and responsible for about 20 employees, made up of managers and staff.

23. The departmental file includes a Certificate of Confirmation identifying the applicant as the person in charge of the company.

24. Photographs of the travel agency office were provided. There were also some emails dealing with enquiries about travel arrangements.

25. In light of the foregoing, the Tribunal is satisfied that the applicant had an ownership interest in each of the two businesses nominated in the visa application form for at least two of the four fiscal years immediately before the invitation to apply for the visa was issued.

    Did each business relied on together have sufficient annual turnover?

26. In order to meet cl 188.225(1) the Tribunal must be satisfied that the relevant business or businesses had an annual turnover, in each of the two fiscal years identified above, of at least AUD500,000. This threshold figure applies as the invitation to apply for the visa was issued on 18 October 2019.

27. Financial statements were provided for each business for calendar years 2016 and 2017.

28. The income for the travel agency business (PT Manunggal Wisata) was IDR 31,197,895,210 for 2016 and IDR 23,959,445,150 for 2017.

29. Based on exchange rates of 9,717 and 10,604 used by the applicant, the AUD equivalents are AUD 3,210,651 and AUD 2,259,472. However, these amounts included income received by the travel agency which should not be included as turnover for the purpose of this visa application. This is because some of this income was received on behalf of, for example, airlines and was passed onto them.

30. In relation to airfares, the turnover of the business is better reflected by commission earned on sales of airline fares, rather than the value of those fares.

31. The applicant also submitted documents showing total income which recorded the value of commissions earned on selling plane tickets rather than the value of those airfares.

32. In addition to commission earned, the travel agency purchased tour packages, hotel rooms and similar which it then onsold to customers. The revenue from these types of sale was not commission and therefore can properly be included as income for the purpose of this visa application.

33. Audited financial statements were provided which were translated. These recorded the following turnover (income/revenue) for the travel agency:

Revenue type	IDR 2016	IDR 2017
Commission on sale of air tickets	1,138,220,579	1,035,555,292
Domestic tour packages	778,554,658	nil
Other tour packages	3,204,010,900	1,636,314,190
Domestic and international hotel rooms	3,084,026,700	1,563,500,000
Travel documents	270,009,400	nil
Other sales	20,093,750	27,998,000
Less refunds on sales	(186,097,301)
Total IDR	8,308,818,686	4,263,367,482
AUD equivalent	855,081	402,053

1. Turning now to the hotel business, its turnover was IDR 1,113,308,505 for 2016 and IDR 1,630,961,876 for 2017. The AUD equivalents are AUD 114,573 and AUD 154,097.

2. Adding together the turnover from each business in Australian dollars as submitted by the applicant is as follows:

Business	AUD 2016	AUD 2017
PT Manunggal Wisata (travel agency)	855,081	402,053
PT Birawa Sukses Sampurna (Fuxion Inn)	114,573	153,806
Total	969,654	555,859

1. As noted, the applicant used exchange rates of 9,717 and 10,604 for 2016 and 2017 respectively. The Tribunal applied exchange rates from which resulted in total turnover of AUD 968,585 for 2016 and AUD 556,909 for 2017. Whichever exchange rates are used, the threshold amount of AUD 500,000 is exceeded for each year.

2. Accordingly, the Tribunal is satisfied that the nominated businesses together had an annual turnover, in each relevant year, of at least AUD500,000.

   Did each business relied on satisfy the definition of ‘main business’?

3. The business or businesses relied on by the applicant to satisfy cl 188.225(1) must also have been an established ‘main business’ for the relevant two fiscal years identified above. The term ‘main business’ is defined in reg 1.11 of the Regulations. There are four elements to the definition, each of which must be satisfied for a business to be a main business.

4. Firstly, the applicant must have or have had an ownership interest in the business. ‘Ownership interest’ is defined in s 134(10) of the Act: reg 1.03. If a beneficial interest is relied on for these purposes, certain evidentiary requirements must also be met: reg 1.11A.

5. 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.

6. 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 businesses 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.

7. 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: reg 1.03.

8. As set out above, the applicant stated in his application form that he had a 99% ownership interest in each of the two main businesses, both from 2012. At the hearing he said his shareholding in those businesses was 90%. He said that in Indonesia, a single person cannot hold 100% of the shares in a company which was why there was a second, minority, shareholder. The documents referred to earlier recorded that the applicant held 99% and 99.8% of the shareholding in those businesses. The Tribunal is of the view the applicant made a mistake, perhaps misremembering his shareholdings in the Indonesian companies, and draws no adverse inference from this. The Tribunal finds that the first and third criteria just set out are met.

9. The evidence before the Tribunal includes various documents, including financial documents, for each company as well as photographs of each business, being a travel agency and a hotel. As referred to earlier, the applicant provided organisational charts for each of the businesses, showing him as the chief executive/commissioner for the Fuxion Inn and president/director of Mantra Travel.

10. In his application for a visa, the applicant stated in relation to the travel agency that his duties included the following:

    Managing the whole operation of the company in terms of growth and revenue of the business. Developed the strategic business direction and plan to meet short term and long term objectives. Developed high performing managerial team.

11. In relation to the hotel and restaurant business, the applicant wrote:

    Overseeing the overall performance and direction of the company, including planning its objectives and strategic decision making that affect overall growth and performance of the business.

12. Other information gleaned from the visa application form is that the Fuxion Inn was trademarked on 27 February 2015.

13. The applicant’s evidence at the hearing was that he was the owner of these businesses and he managed them on a day-to-day basis. The hotel employed about 20 people and the travel agency about 15 people. He said that they took over the travel agency business from the previous owner and wanted to open up a market between Indonesia and China, to have a tourist exchange. They had a good team and a good customer base and there was a business to sustain, which was mainly the ticketing business for which they received commission on a high-volume turnover.

14. The applicant said that some of the income of the travel business was derived from processing documents such as preparing visas and arranging travel insurance. He said the business was based in Jakarta. He said they had mostly corporate clients, often big companies with ex-pats from all over the world. They had domestic customers as well. The business was started in about 1996. At that time only the applicant and not his wife was involved.

15. The applicant said the second business was a small hotel with around 20 rooms which had a restaurant/café. He said it started in about 2014. The Tribunal asked why he started that business. The applicant said that was his background and he had previously had a big Chinese restaurant. He said his passion was in the food business. That was why his business in Australia was a food business.

16. Based on the documentary evidence including photographs, the Tribunal is satisfied that the applicant maintained direct and continuous involvement in the management of each the two main businesses from day to day and in making decisions affecting the overall direction and performance of the businesses. Therefore, the second criterion is met.

17. Given the nature of those businesses, the Tribunal is satisfied that they were qualifying businesses, operated for the purpose of making a profit and that, as a hotel/restaurant and travel agency, they each provided goods and/or services to the general public. Neither was operated for the purpose of speculative or passive investment.

18. Accordingly, the Tribunal is satisfied that the nominated businesses do meet the definition of main business for at least two of the four fiscal years immediately before the time of invitation to apply for the visa.

19. Given the findings above, the Tribunal is satisfied that cl 188.225(1) is met. The Tribunal has also considered cl 188.225(2).

    Direct engagement in provision of services – cl 188.225(2)

20. Clause 188.225(2) provides that if the applicant was engaged in one or more businesses providing professional, technical or trade services for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant was directly engaged in the provision of the services, as distinct from the general direction of the operation of the business, for no more than half the time spent by the applicant from day to day in the conduct of the business.

21. Having regard to the above findings, the relevant businesses are the Fuxion Inn and Mantra Travel.

22. As the two businesses were respectively a hotel/restaurant and a travel agency, they cannot be found to have been providing professional, technical or trade services.

23. Given that the applicant was not engaged in one or more businesses providing professional, technical or trade services, cl 188.225(2) does not apply.

    Concluding finding on cl 188.225

1. Given the findings above, the Tribunal is satisfied that cl 188.225 is met.

   ISSUE TWO – cl 188.229

   Genuinely has a realistic commitment – cl 188.229(1)

2. Clause 188.229(1) requires that the applicant genuinely has a realistic commitment to:

   (a) establish a qualifying business in Australia; or

   (b) participate in an existing qualifying business in Australia.

3. ‘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: reg 1.03.

4. Based on the visa application form, the applicant established a third business in Indonesia in 2015 called PT Bariuma Ramindo Indonesia which, he stated, has a joint venture agreement with a Japanese company, Bari-Uma Ramen.

5. According to the visa application form, the applicant registered a company in Western Australia in 2018 called Bariuma Australia Pty Ltd. The applicant said that was under franchise with the Japanese company. In the form he stated that he owned 52% of the shares in Bariuma Australia Pty Ltd. At the hearing the applicant said he had owned 53% of the shares, not 52%, but had since reduced his shareholding to 48%. The Tribunal obtained an ASIC report which showed that the applicant had owned 52% of the shares and reduced his shareholding to 47%; that change was made on 9 August 2022.

6. Currently, of the 100 shares issued by Bariuma Australia Pty Ltd, 47 are owned by the applicant, 48 are owned by five individuals resident in Indonesia or Japan and the remaining five by a person resident in Australia.

7. The Tribunal observes that the difference between owning 48% of the shares rather than 47% is a minor discrepancy. It noted earlier in this Statement of Reasons that the applicant said he owned 90% of the shares in his two Indonesian businesses whereas he owned 99% and 99.8% of the shares in them. The Tribunal is of the view that the applicant’s focus has not been on his exact shareholdings and he has made mistakes when referring to them. As noted earlier, the Tribunal does not draw any adverse inference from these mistakes.

8. A submission dated 19 April 2022 referred to the Australian Business Register. This showed that on 31 March 2022, a new company was registered called Bariuma Pty Ltd. The applicant owns 682 from 100 shares in this company; that is, 68%. Of the remaining 318, 288 are owned by people resident in Japan or Indonesia whom the applicant described as his Japanese and Indonesian partners. The remaining 30 shares are owned by a person with a Perth address.

9. Based on Bariuma’s website, there are currently two Bariuma restaurants/cafes in Perth, one in Barrack Steet, Perth and the other in the suburb of East Victoria Park. The applicant said that Bariuma Australia Pty Ltd operated the Barrack Street restaurant/cafe and Bariuma WA Pty Ltd operated the East Victoria Park one.

10. The applicant registered a third company, Bariuma Australia Enterprise Pty Ltd, on 11 November 2022. This company issued 100 shares, 50 of which are owned by him and 50 are owned by his wife, Mrs Supiney Tjong. Mrs Tjong is director and secretary of Bariuma WA Pty Ltd and of Bariuma Australia Pty Ltd. She is not a shareholder in either of those companies.

11. The applicant said that Bariuma Enterprise Pty Ltd was set up to support the other two companies. Stock such as soup and other ingredients used by the restaurants was imported into Australia by a Japanese supplier called Nippon. Bariuma Enterprise Pty Ltd has an agreement with Nippon. Based on its website at nipponfood.com.au, Nippon Food Distributors Pty Ltd is an importer and wholesaler of Japanese foods. Its main office is in Cheltenham, Victoria and it distributes from there to elsewhere in Australia.

12. The applicant said that the intention was for Bariuma Enterprise Pty Ltd to manage future Bariuma stores. The applicant said that he hopes to open stores across Australia including in Melbourne early next year but the flagship store will be the one in Barrack Street, Perth.

13. The Tribunal is satisfied that the applicant has demonstrated that he genuinely had, and has, a realistic commitment to establish a qualifying business in Australia through his ownership interest in the two café/restaurants in Perth and in Bariuma Enterprise Pty Ltd.

14. According to the financial statements for 2020/21 and 2021/22, the restaurant/café or cafes are franchise operations. They are self-evidently operated for the purpose of making a profit and provide goods and/or services to the general public.

15. Given the findings above, the Tribunal is satisfied that cl 188.229(1) is met. The Tribunal has also considered cl 188.229(2).

    Genuinely has a realistic commitment - 188.229(2)

16. Clause 188.229(2) requires that the applicant genuinely has a realistic commitment to:

    (a) maintain a substantial ownership interest in the qualifying business mentioned in subclause (1); and

    (b) maintain a direct and continuous involvement in the managing of the qualifying business from day to day, and in the making of decisions that affect the overall direction and performance of the qualifying business, in a manner that benefits the Australian economy.

17. 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 (s 134(10) of the Act and reg 1.03 of the Regulations). Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of reg 1.11A of the Regulations.

18. As already set out, the Perth-based restaurant/café business opened in 2018. According to the submission dated 19 April 2022, the business had been operating from early 2018.

19. Financial statements were submitted for Bariuma Australia Pty Ltd for the year ended 30 June 2019, which show sales of AUD 1,472,743 and profit of AUD 37,658. There were nil sales recorded for the year ended 30 June 2018 but expenses recorded amounting to AUD 251,960. This indicates the business was being set up in 2017/18. The claim that the business was operating from early 2018 makes sense, given those figures.

20. It is now five years later and there is sufficient evidence for the Tribunal to be satisfied that the business continues to operate. This evidence includes the website and financial statements to 30 June 2022 which were submitted to the Tribunal on or around 28 February 2023.

21. The applicant submitted financial statements and the company tax return for year ending 30 June 2022 for Bariuma Australia Pty Ltd. The profit and loss statement recorded revenue of AUD 1,897,135 for 2020/21 and AUD 1,943,011 for 2021/22. The profit for each year was AUD 104,725 and AUD 59,475 respectively.

22. The applicant said that the first restaurant’s current turnover was AUD 300,00 a month, over AUD 3,000,000 a year. According to the tax return for 2022, the annual turnover was about AUD 2,000,000. The applicant said that turnover had been increasing over time.

23. The financial statements also recorded that the applicant made a shareholder loan of AUD 223,600 to the company. There were other shareholders who made loans. These were between AUD 12,900 and AUD 43,000 per person, significantly less than the loan made by the applicant.

24. The applicant confirmed at hearing that the Barrack Street restaurant/cafe continues to operate and is the flagship store.

25. As noted earlier, in about November 2022, the applicant opened a second restaurant/café with the same name, Bariuma, operated through a different company in which the applicant has a 68% ownership. In August 2022 the applicant reduced his shareholding in Bariuma Australia Pty Ltd from 52% to 47%.

26. The Tribunal notes that both restaurants are featured on the same website. The Tribunal concludes they are part of the same business, being Bariuma restaurants, even though each has a different ownership structure. Bariuma Enterprise Pty Ltd has been set up as an adjunct to the restaurants, and is linked to them in a practical sense, by virtue of its name and that it sources and supplies product to the two restaurants.

27. The Tribunal notes the following findings:

    ·     The applicant currently has a 47% ownership share in the company which operates the first restaurant.

    ·     The applicant has a 68% shareholding in the company through which the second restaurant operates.

    ·     The two restaurants are part of the same business – Bariuma restaurant/cafes – despite a difference in ownership structure,

28. In light of the above, the Tribunal finds that the applicant has demonstrated that he has maintained a substantial ownership interest in the qualifying business mentioned in subclause (1). There was no evidence before the Tribunal to suggest that the applicant was not committed to maintaining his level of ownership. Indeed, the applicant spoke of his intention to open more Bariuma stores across Australia.

29. The Tribunal is satisfied that the applicant genuinely has a realistic commitment to maintain a substantial ownership interest in the qualifying business and that he satisfies cl 188.229(2)(a).

30. The Tribunal asked the applicant about his day to day role in the business as well as his future plans for it.

31. The applicant said that he and wife managed the restaurants and dealt with suppliers. He said that he dealt with the principal, based in Japan. The Tribunal understands this to be a reference to the franchisor. The applicant said each restaurant had a manager who reported to the applicant and his wife. The applicant and his wife confirmed that they together managed the business. The Tribunal asked how their responsibilities were split.

32. The applicant said they covered each other. His wife did the paperwork, such as the invoices and the inventories. The applicant said he had to be in the kitchen but his role is changing as his focus is on growing the business and opening more stores. The plan is to open stores in Melbourne and Sydney, and in the north and south of Western Australia. He wants to grow the brand.

33. The Tribunal asked the applicant what he did on a typical day in relation to the restaurants. He said he had to make sure the operation was running smoothly, draw up and monitor the roster to make sure there is the right number of staff at any time. They employee about 15 people at the Barrack Street store and seven to eight at the East Victoria Park store.

34. The applicant said he had to make sure the finances were healthy and payments were made smoothly, such as to the principal in Japan, and GST. The applicant said that he was also on standby. If any of the team was sick, then he would fill in. His wife was better at service but he could do anything. The applicant said that if there were any urgent needs such as running out of stock, they would do that. There were also tasks like banking.

35. The Tribunal asked about the decisions to expand the business. The applicant said that they both did the business planning and he did the marketing.

36. The applicant was one of the two directors who made a declaration that the financial statements fairly presented the company’s financial position as at 30 June 2022.

37. The tax return recorded the applicant as being the public officer making a declaration that the information in the tax return was true and correct.

38. Given the evidence before it, the Tribunal is satisfied that the primary applicant does maintain, and has maintained, a direct and continuous involvement in the managing of the qualifying business from day to day, and in the making of decisions that affect the overall direction and performance of the qualifying business.

39. As to whether this is done in a manner that benefits the Australian economy, the Tribunal had regard to departmental policy which lists some potential outcomes that would, according to policy, satisfy this criterion. The Tribunal is of the view that the policy is consistent with the legislation on this point and provides a useful guide as to what to take into account. The list of potential outcomes includes the following:  

    ·     development of links with international markets

    ·     creation or maintenance of employment

    ·     adding to commercial activity and competitiveness within the Australian economy.

40. The Tribunal notes that the Bariuma stores are part of the Bariuma franchise operation, which is headquartered in Japan; the applicant’s links to his Japanese and Indonesian partners; and that the Bariuma companies source goods from Japan via Nippon. In addition, the restaurant/cafes provide local employment and add to commercial activity and competitiveness within the Australian economy.

41. The Tribunal is satisfied that the applicant meets cl 188.229(2).

    Concluding finding on cl 188.229

100.   Given the findings above, the Tribunal is satisfied that the applicant meets cl 188.229.

OVERALL CONCLUSION

101.   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 in relation to the primary applicant.

102.   As the second, third and fourth named applicants applied on the basis that they are members of the family unit of the applicant, their applications will be determined by reference to the outcome of his application on remittal to the Department for reconsideration.

DECISION

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

·cls 188.225 and 188.229 of Schedule 2 to the Regulations.