Tessier (Migration)

[2023] AATA 3154

Tessier (Migration) [2023] AATA 3154 (27 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nicolas Patrick Tessier
Mrs Delphine Nicole Pieux Tessier
Mr Antoine Patrice Jacques Tessier
Mr Paul Patrick Tessier

REPRESENTATIVE:  Ms Nicola Ann Howell

CASE NUMBER:  2016347

HOME AFFAIRS REFERENCE(S):          BCC2018/5522918

MEMBER:Namoi Dougall

DATE:27 September 2023

PLACE OF DECISION:  Sydney

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:

·cl 188.223 of Schedule 2 to the Regulations.

Statement made on 27 September 2023 at 12:49pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) – Subclass 188 (Business Innovation and Investment (Provisional)) – demonstrated need to reside in Australia – oyster farming – no supporting documentation provided to department – submissions and extensive documentation provided to tribunal – established family business and international experience – regulatory, managerial and day-to-day tasks – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 188.223

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 6 November 2020 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 8 December 2018. 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 188.223 of Schedule 2 to the Regulations because no supporting documentation was provided to the Department that the delegate was unable to assess the need for the applicant to reside in Australia.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 188.223.

2. Clause 188.223 requires:

   The applicant demonstrates that there is a need for the applicant to be resident in Australia to establish or conduct the proposed business activity.

3. On 11 October 2018, the applicant applied for a NSW nomination for a Business/Investor visa. In the applicant’s NSW nomination application Business Innovation visa 188A (the nomination application) the applicant stated in relation to his successful career as follows:

   Oyster Farmer with more than 25 years of experience in France and Ireland. I am the 4th generation of oyster farmer. I worked in the family business in France from 1990 to 2006, as the managing director from 2001. I moved to Ireland in 2007 where I was a founder of an oyster farm operating as Sofi Shellfish Ltd (aka SOFI). Our turnover was €1,677 million (A$2,486 million) in 2016,€1,473 million (A$2,085 million) in 2015 and €1,309 million (A$1,944 million) in 2014. Most of our production was exported to France. I have an experience of producing oysters for an overseas market. I was the Managing Director of the company and owner of 33.60% of it through a fully owned (with my spouse) French holding company SC Aulanes that owned 48% of NP Holding, owner of 70% of Sofi Shellfish. We employed 7 persons plus myself, my spouse and another Director.

4. On 2 June 2022, a submission of the applicant’s representative was provided to the Tribunal (the submission). Provided with the submission was a large number of supporting documentation including in relation to the applicant’s ownership and management of SC Aulanes in France and Sofi Shellfish Ltd (Sofi) in Ireland. Aulanes is a family company where the applicant worked from 1990 to 2006 and was the Managing Director from 2001. SOFI was founded by the applicant in 2007 and he and his spouse maintained their interest in the company until the applicant sold his interest in March 2017.

5. Provided with the submission in relation to Aulanes are the following documents: registration documents; financial statements for the year ending 31 December 2017 and bank statements. Provided in relation to SOFI includes: an incorporation application; financial statements for the years ending 30 April 2015 and 2016; receipts and remittances; meeting reports; bank statements; attestation from another director as to the duties performed by the applicant and other references; and cessation as director forms

6. The applicant also stated in the nomination application in relation to the proposed business activity as follows:

   During our exploratory visits, we were able to assess that the region around Port Macquarie is highly suitable to oyster farming. We decided to set up a business there. We founded a company, Aussanes Growers Pty Ltd, that holds our funds allocated for the investment: A$1.020 million. We are experienced oyster farmers in France and in Ireland and we believe that we would able to repeat our Irish success in Australia. We will initially aim at selling within Australia. Once the business is established, we will look at export opportunities. This time, we have the advantage of fluency in English as well as having ample funds for the investment. While we plan for an investment of A$500k, we have twice that amount in case cash injection is needed. We have chosen Australia for our new venture for its economic opportunities and quality of life for ourselves and our children. We want to settle near Port Macquarie for its potential in oyster farming and facilities for our family.

7. In the submission it was stated in relation to the need for the applicant to be resident in Australia to establish or conduct the proposed business activity as follows:

   The proposed business activity is an Oyster Farm. The establishment and day to day management of the Oyster Farm requires the Applicant to be physically present in Australia. To operate an aquaculture farm in NSW the business must obtain certain licences and must have a Commercial Farm Development Plan and Biosecurity Plan. All of these permits will require the Applicant to be in Australia to apply for and to manage and comply with. In addition, the establishment of the farm will require the expertise of an experienced oyster farmer, such as the Applicant.

8. It was further submitted in the submission that the applicant has a realistic commitment to establishing a qualifying buisness in Australia and in support of that has incorporated Aussanes Growers Pty Ltd (Aussanes). Provided to the Tribunal were ASIC documents indicating that Aussanes was registered in New South Wales on 29 June 2017 with the applicant and his spouse being the directors and the shares being held by Aulanes. An up to date historical search of Aussanes indicated that the above details remain the same. Also provided was a title search indicating that Aussanes had purchased a property in Gumma, NSW, 2447 which the ASIC historical search indicates is the registered office of Aussanes.

9. On the above the Tribunal is satisfied that the applicant has the managerial and buisness experience in oyster farming which is his proposed business. The Tribunal accepts the submission that to establish and manage an Oyster Farm in Australia would require the applicant to be present in Australia not just to obtain licences and develop operational plans but due to the expertise but also the intensity of the farming, marketing and potentially exporting of oysters. Further, the applicant has established a presence in Australia by establishing a company and purchasing a registered office.

10. On the above the Tribunal is satisfied that the applicant has demonstrated that there is a need for the applicant to be resident in Australia to establish or conduct the proposed business activity.

11. Therefore, the requirements of cl.188.223 are met.

12. The Tribunal finds that as the second, third and fourth named applicants applied on the basis of being family unit members of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

13. 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.

DECISION

1. 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:

   ·cl 188.223 of Schedule 2 to the Regulations.

Namoi Dougall
Member