Thom (Migration)

[2020] AATA 6117

Thom (Migration) [2020] AATA 6117 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Gordon Grant Thom

Ms Karen Stoop

CASE NUMBER:  2002219

HOME AFFAIRS REFERENCE(S): BCC2016/1505907 BCC2017/2635200

MEMBER:Robyn Anderson

DATE:13 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:

·cl.892.212 of Schedule 2 to the Regulations and

·cl.892.221(b) of Schedule 2 to the Regulations.

Statement made on 13 July 2020 at 9.30am.

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) visa – main business – goodwill – business and personal assets in Australia – ownership interest in the main business – net business assets lawfully acquired – day-to-day management of the business – net value of assets – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 134
Migration Regulations 1994, Schedule 2, cls 892.211, 892.212, 892. 221; rr 1.03, 1.11

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 30 January 2020 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 April 2016. At the time of application, Class DF contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Sponsored Business Owner) and Subclass 893 (State/Territory Sponsored Investor). The applicants in this case are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Sponsored Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (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. On 4 July 2017, a delegate refused to grant the visas on the basis that the first named visa applicant (Mr Thom) did not satisfy the requirements of cl.892.211(1) of Schedule 2 to the Regulations because the delegate was not satisfied that SAB Storage Pty Ltd (the Business), as nominated by Mr Thom as the main business, met the definition of main business in r.1.11(1)(c) of the Regulations.

4. A differently constituted Tribunal remitted the application (1715321) to the Department on 22 October 2019, finding that Mr Thom met the requirements under cl.892.211(1) of Schedule 2 to the Regulations. This involved a finding that the Business met the definition of main business in accordance with r.1.11 of the Regulations and also that Mr Thom met the ownership interest criteria for the two years immediately before the application was made on 20 April 2016.

5. On 30 January 2020, the delegate refused to grant the visas on the basis that Mr Thom did not satisfy the requirements of cl.892.212 of Schedule 2 to the Regulations because two of the three criteria were not satisfied. The delegate determined that as two of the three criteria were not met, being cls.892.212(a) and 892.212(b) of Schedule 2 to the Regulations, there was no necessity to consider cl.892.212(c) of Schedule 2 to the Regulations.

6. Following an application to the Tribunal, Mr Thom’s representative lodged a submission on 30 March 2020, including further clarification in regard to balance sheet items of “goodwill” and the “loan account” , the latter in respect of the entity holding Mr Thom’s shareholding in the Business. On 14 May 2020, the Tribunal wrote to Mr Thom requesting further information. Additional evidence and submissions were provided by Mr Thom on 26 May 2020, 31 May 2020, 1 June 2020 and 26 June 2020.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. 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 telephone.

8. The applicants appeared before the Tribunal by conference telephone on 29 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence by conference telephone from Mr Paul Netto, Mr Thom’s business partner. The applicants were represented in relation to the review by their registered migration agent, Mr Chait, of IMC Migration. He was assisted by Mr Conyer, both of whom participated by conference telephone.

9. The Tribunal deferred making a decision in this matter to allow time for Mr Thom to provide further evidence. Further information was received by the Tribunal after the hearing on 29 June 2020 and 8 July 2020.

10. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Mr Thom gave oral evidence that he operated his own business in South Africa in advertising and marketing. He and Mr Netto had a long-term professional relationship in South Africa. Following Mr Netto’s relocation to Australia, Mr Thom was engaged to complete a project for Mr Netto. Upon completion, Mr Thom arranged for his own visit to Australia, in part to see the project fully implemented. While in Australia, Mr Thom found the lifestyle to resonate with his ideals. He was attracted to the climate, beauty and the civilisation itself. As such, he had no hesitation in taking up an opportunity to go into business with Mr Netto in 2011. 

12. Mr Thom and Mr Netto set up the Business, each registered with ASIC at the time as directors and holding equal shareholdings. Mr Thom’s shareholding was held through Blue Brick Investments Pty Ltd atf Thom Family Trust (the Trust). The Business purchased an existing business, Store A Box, in March 2011. Mr Thom told the Tribunal that some months after purchase of the existing business, the leased premises were sold. After discussions, the decision was made that Mr Netto would purchase new premises at Mt Kuring-Gai through a separate entity from whom the Business would lease the premises. Mr Thom had and has no connection to this entity and stated that he felt to do so would have stretched him financially at the time.

13. In July 2011, Mr Thom transferred 5% of his shareholding to PGNSRN Investments Pty Ltd (the entity through which Mr Netto holds his shareholding in the Business), resulting in Mr Thom’s shareholding through the Trust reducing to 45%. Mr Thom told the Tribunal that this was partly due to the visa requirements of Mr Netto at the time. Mr Netto added that this was also a way of reflecting his additional financial input into the Business in the period since incorporation. In mid-2014, the Business franchised a facility in Mt Druitt, Mr Netto again purchasing the premises through his own entity. In early 2016, as a result of family issues in respect of the franchisee and the franchise not resulting in the growth that the Business had hoped for, the Business bought back the franchise in Mt Druitt. The Business continues to operate the storage facilities at Mt Kuring-Gai and Mt Druitt.

14. Mr Thom gave oral evidence that while the Business has always offered secure offsite document storage and shredding, it has also branched out into what they call “Pick-Pack-Dispatch”, whereby the Business virtually takes on the role of the “middle-man”. In this role the Business receives goods on behalf of an online supplier, codes and labels the goods, packs them and ultimately delivers them to customers. While Mr Thom’s role is centred around advertising and marketing, including maintenance of the website and discussions and consulting with new clients (including international), Mr Netto told the Tribunal that his role is largely administrative and financial. It appears that the combined skills of Mr Netto and Mr Thom are well complemented and have served to establish a successful business.

15. The issue in the present case is whether the requirements of cl.892.212 of Schedule 2 to the Regulations are met by Mr Thom.

    Requirements in relation to cl.892.212

16. There is no evidence before the Tribunal that the appropriate regional authority has determined that there are exceptional circumstances in this case. Accordingly, the Tribunal has considered whether the substantive requirements of this criterion are met. That is, whether the applicant, the applicant’s spouse, or the applicant and his spouse, together in the main business or main businesses in Australia meet at least two of the three requirements under cls.892.212(a), 892.212(b) or 892.212(c) of Schedule 2 to the Regulations at the time of application and in the 12-month period immediately prior to the application date.

17. The application was lodged on 20 April 2016. As such, the 12 months ending immediately before the application was made is taken to mean 20 April 2015 to 19 April 2016 (the relevant period).

18. Clause 892.212(a) relates to the business providing employment to a person/s that is not a family member and is also an Australian citizen or Australian permanent resident or a New Zealand passport holder. It is clear from the documents and Mr Thom confirmed at hearing that he does not meet cl.892.212(a). Rather, he is relying on meeting the requirements as set out in cls.892.212(b) and 892.212(c) of Schedule 2 to the Regulations.

19. Both cls.892.212(b) and 892.212(c) relate to the financial assets held in Australia by the applicant, the applicant’s spouse, or the applicant and his spouse together. Herein lie the central issues in this case. That is, firstly whether the applicant, the applicant’s spouse, or the applicant and his spouse together, held business and personal assets in Australia at the time of application that have a net value of at least AUD250,000 and had a net value of at least AUD250,000 throughout the period of 12 months ending immediately before the application was made, and that these assets were legally acquired. Secondly, whether the applicant, the applicant’s spouse, or the applicant and his spouse together, held assets in the main business in Australia at the time of application that have a net value of at least AUD75,000 and had a net value of at least AUD75,000 throughout the period of 12 months ending immediately before the application was made, and that these assets were legally acquired.

20. If an applicant satisfies the requirements in cl.892.212(b), relating to their business and personal assets, then cl.892.221(b) must also be satisfied. Clause 892.221(b) requires that the applicant continues to meet the requirements of cl.892.212(b) at the time of decision.

21. The meaning of “main business” is set out in r.1.11(1) of the Regulations (as defined in r.1.03). As noted above, Mr Thom nominated the Business as “the main business”. In order for a business to be considered a “main business”, r.1.11(1) sets out four criteria. The criteria are not mutually exclusive and must all be met before a nominated business can be considered as the “main business”. On 22 October 2019, in relation to review 1715321 (as per above reference), a differently constituted Tribunal found that the Business met all four of the criteria under r.1.11 such that the Business was eligible to be considered the “main business” at the time of application. That is, that Mr Thom has an ownership interest in the Business, he has maintained direct and continuous involvement in the management of the Business including day-to-day operations and decisions affecting the overall direction of the Business, his shareholding in the Business with an annual turnover of more than AUD400,000 is at least 30% and the Business is a qualifying business. Consequently, there is no necessity for the Tribunal to consider these criteria again in this decision and it will move forward on the basis that the Business was found to qualify as the main business in respect of the relevant period.

22. The applicant has submitted that the requirements concerning assets in the main business and personal assets are met. Furthermore, the applicant has also submitted that the requirements concerning business and personal assets at the time of decision are also met.

    Net business assets – cl.892.212(c)

23. Clause 892.212(c) of Schedule 2 to the Regulations requires that the applicant, the applicant’s spouse, or the applicant and his spouse together, held assets in the main business in Australia at the time of application that have a net value of at least AUD75,000 and had a net value of at least AUD75,000 throughout the period of 12 months ending immediately before the application was made, and that these assets were legally acquired.

24. In relation to the calculation of the net business assets, departmental policy in PAM3 GenGuide M – Business Visas (PAM3) sets out a formula in relation to calculation of net business assets. Such a formula is notably absent from the Regulations. The Tribunal notes that whilst PAM3 may provide guidance, it is not bound to follow it. All in all, the Tribunal must satisfy itself that the assets and liabilities recorded in the respective balance sheets are correctly valued, including the unsecured loan accounts.

25. The Tribunal examined the balance sheets of the Business at 31 March 2015 and 31 March 2016. As the delegate’s decision was centred largely on the unsecured loan account to the Business from the Trust, Mr Thom submitted a detailed audit report from Mr Baskin, of the chartered accounting firm, Baskin Clarke Priest prior to hearing. He also included supporting evidence of all transfers in the form of his personal bank statements and those of the Business. The Tribunal is satisfied that the report from Mr Baskin has accurately assessed the true balance of the unsecured loan from the Trust at 31 March 2015 and 31 March 2016 of AUD176,084.63 and AUD136,084.63 respectively. It is evident from the general ledger account that the majority of the funds loaned to the Business by the Trust were transferred within the first three years of operation.

26. PAM3 allows such unsecured loans, in this case in respect of Mr Thom, from the Trust, to be taken into consideration when calculating the net assets of the business, recognising that it is common for businesses to initially be financed by loans from the owner/s that represent liabilities to the business that are later repaid. As noted above, the Tribunal is not bound to follow it. Nevertheless, the Tribunal considers the policy in regard to loans from directors/owners to be appropriate for the purposes of applying cl.892.212 of Schedule 2 to the Regulations. Accordingly, the loan from the Trust, as recorded in the general ledger accounts at 31 March 2015 and 31 March 2016, can be added to the calculation of Mr Thom’s share of the net assets of the Business.

27. Statements in relation to the various bank accounts of the Business, BBX and Bartercard were provided in support of the amounts recorded on the balance sheets. While it was acknowledged that the Visa card is held in the name of Mr Netto, the Tribunal accepts the oral evidence that it is used solely for business purposes. As such, it is of no consequence whether it is included in the loan from Mr Netto to the Business or isolated as the Visa card account.

28. The Tribunal considered the item of Goodwill, recorded in the balance sheets at 31 March 2015 and 31 March 2016 at AUD325,340 and AUD396,194 respectively. The purchase contract for Store A Box, dated 15 March 2011, clearly sets out the components of the purchase price as Goodwill (AUD306,300) and Equipment (AUD33,700). A submission from Mr Rod Norris of Trend Partners, a chartered accounting firm, broke down the components of Goodwill as follows:

Date	Particulars	AUD	Balance
Carried forward balance from Goodwill as per purchase contract 15 March 2011	01/07/11	306,300	306,300
Stamp duty on business purchase and interest expense due to late payment	10/10/13	10,790	317,090
Additional formation costs agreed to with vendor after purchase	28/01/14	8,250	325,340
Balance	31/03/15	325,340
Buy-back payments commenced in July 2016	70,854	396,194
Balance	31/03/16	396,194

1. Mr Netto gave oral evidence that the additional costs paid to the vendor in January 2014 consisted of various items of which he cannot recall, perhaps partially made up of some debtors. They are clearly not goodwill. However, the Tribunal is not satisfied that they necessarily equate to formation expenses. In any event, the Tribunal is satisfied that they do represent an asset, increasing the value of the Business.

2. It was evident from the general ledger account that payment for the buy-back of the franchise in early 2016 commenced in late July 2016 and continued in instalments until 29 August 2016. In response to questions from the Tribunal, Mr Netto explained that while a small client base was included in the original franchise agreement through “boxes”, the agreed price was based on the increase in the client base by the franchisee and the projected value of those additional boxes. The Tribunal is satisfied that in the circumstances it is correctly categorised as goodwill.

3. Other intangible assets recorded in the balance sheet at 31 March 2015 and 31 March 2016 consisted of preliminary expenses and setup costs of AUD5,703 and AUD22,720 respectively, amortised to AUD2,077 and AUD15,837 respectively. The Tribunal pointed out that the balance sheet is only the starting point for assessing the value of the net business assets held in Australia by the main business. The Australian Accounting Standards Board (AASB) defines an “asset” as something from which future economic benefits are expected to flow to the entity. The Tribunal must also be satisfied that each of the itemised assets truly represents an asset, or economic resource or benefit for the purposes of cl.892.212 of Schedule 2 to the Regulations. While setup/formation expenses are an “intangible asset” and represent a past expense that is gradually being amortised over time, it clearly does not represent future value or benefit to the Business for the purposes of cl.892.212. Rather it is an expense fully paid a number of years earlier that due to taxation and accounting rules cannot be fully expensed at the time of payment. Such costs do not represent something that can be sold to gain a benefit or resource, nor can it be used as security. Similarly, while the Tribunal does not question the capitalised treatment of stamp duty, the cost does not represent a benefit or economic resource. It is a prior expense that is unable to be written off at time of payment in accordance with tax and accounting rules. It is unclear why the interest was not expensed at the time. Regardless, the Tribunal finds it appropriate to ignore the preliminary and setup costs and stamp duty and interest expenses recorded as assets in the balance sheet for the purposes of cl.892.212(c) of Schedule 2 to the Regulations.

4. Mr Norris explained in his submission of 26 June 2020 that receivables also consisted of loans to related companies. Mr Netto confirmed that the related companies were connected to him. It was evident that the amounts had been repaid by 30 June 2019. Accordingly, the Tribunal is satisfied that they represented a recoverable asset to the Business at 31 March 2015 and 31 March 2016.

5. It was evident from the depreciation schedules provided that plant and equipment were depreciated under the taxation rules of the general pool. Mr Netto gave oral evidence that shelving equipment has a long life. The Tribunal accepts that this is so and therefore finds that a depreciation rate for tax purposes of 30% per annum, together with the ability for immediate write-off of certain items result in the plant and equipment value as recorded in the balance sheet at 31 March 2015 and 31 March 2016 being somewhat understated.

1. The remaining items in the balance sheet were largely unremarkable. Accordingly, after adjustments for preliminary and setup costs and stamp duty and interest expenses, the Tribunal calculates that Mr Thom held a 45% share in deficiency of assets held in the Business in Australia during the relevant period, of AUD24,962 and AUD21,814 respectively. After adding back the loan from the Trust, the net business assets in the Business attributed to Mr Thom at 31 March 2015 and 31 March 2016 are AUD151,122 and AUD114,270 respectively.

31 March 2015 AUD	31 March 2016 AUD
Net asset deficiency as per balance sheet provided	(42,605)	(21,848)
Less stamp duty and interest expense	(10,790)	(10,790)
Less preliminary and setup costs	(2,077)	(15,837)
Net business assets	(55,472)	(48,475)
45% attributable to Mr Thom	(24,962)	(21,814)
Plus Loan- the Trust	176,084	136,084
Net business assets	151,122	114,270

1. As can be seen from the table above, it is clear that the net assets in the main business in Australia of the applicant throughout the relevant period are at least AUD75,000. As such, the Tribunal found it unnecessary to pursue further detail in respect of the market value of the plant and equipment in the relevant period.

2. The bank statements before the Tribunal at hearing recorded transfers from South Africa to the personal account of Mr Thom in the period between 9 March 2011 and 3 October 2012 of almost AUD200,000, some of which referenced 5 Gary Street. Following the hearing, Mr Thom provided supporting evidence in the form of foreign transfer bank receipts for each of those transactions. Evidence was also provided of his sole ownership in Kennedy Creations Cc and its ownership of two properties, being 5 Gary Street and 66 Wessells Road in Johannesburg.

3. In addition, foreign transfer bank receipts were provided for further transfers of funds from Mr Thom’s South African account to his personal account in Australia both before and after the relevant period in excess of AUD175,000. Mr Thom also provided evidence of his financial investments in Allan Gray and Momentum Money Market Fund, including a recent sell-down from the latter in the amount of R700,000. Furthermore, evidence of Mr Thom’s 100% ownership of residential property in the United Kingdom was also before the Tribunal. Based on the oral and written evidence of Mr Thom, the Tribunal is satisfied that the net assets in the Business have been lawfully acquired. Consequently, the criteria under cl.892.212(c) of Schedule 2 to the Regulations are met. The Tribunal finds accordingly.

   Net business assets and personal assets – cl.892.212(b)

4. Clause 892.212(b) of Schedule 2 to the Regulations requires that the applicant, the applicant’s spouse, or the applicant and his spouse together, held business and personal assets in Australia at the time of application that have a net value of at least AUD250,000 and had a net value of at least AUD250,000 throughout the period of 12 months ending immediately before the application was made, and that these assets were legally acquired.

5. Evidence provided to the Department of Mr Thom’s National Australia Bank accounts record a combined total balance of AUD122,126 at 31 March 2015 and AUD184,912 at 31 March 2016.

6. As can be seen from the table below, the applicant, the applicant’s spouse, or the applicant and his spouse together, held business and personal assets in Australia at the time of application and throughout the period of 12 months ending immediately before the application that have a net value of at least AUD250,000. The Tribunal finds accordingly.

31 March 2015	31 March 2016
Net business assets attributed to Mr Thom at 45%	151,122	114,270
NAB Bank accounts- Mr Thom	122,126	184,912
Net business and personal assets	273,248	299,182

1. As discussed in paragraphs 36 and 37 above, Mr Thom has provided substantial evidence in support of the funds transferred into Australia being lawfully acquired and the Tribunal so finds in respect of cl.892.212(b) also.

2. As Mr Thom has relied on cl.892.212(b) as one of the two criteria to be met under cl.892.212, cl.892.221 of Schedule 2 to the Regulations provides that the applicant must continue to meet those requirements at the time of decision. That is, that the applicant, the applicant’s spouse, or the applicant and his spouse together continue to hold business and personal assets in Australia that have a net value of at least AUD250,000.

3. Since the previous Tribunal decision of 22 October 2019 there has been no change in the ownership interests in the Business, Mr Thom holding 45% through the Trust.  Nor has there been any change in the respective roles of Mr Thom and Mr Netto as they jointly operate the Business on a day-to-day basis and continue to discuss future opportunities for the Business within the market. Financial statements available to the Tribunal at hearing in respect of the Business were in respect of the financial years from 2013/2014 to 2018/2019. Mr Netto gave oral evidence that he expects a reduction in the June 2020 quarter sales of approximately 10% due to the impact of COVID-19. While the current climate has not affected the documents and storage agreements already in place, the expectation is that debtors will likely rise in the next period. It was clear from the annual financial statements to 30 June 2019 that the annual turnover of the Business has increased over time to in excess of AUD600,000. Business activity statements to 30 March 2020 record total sales (exclusive of GST) of AUD354,863. The Tribunal is satisfied that the Business is on track to exceed an annual turnover of AUD400,000 in the 2019/2020 year. Clearly, Mr Thom’s 45% shareholding in the Business with an annual turnover of more than AUD400,000 is at least 30%.  Furthermore, in 2018/2019 the net profit of the Business before tax was AUD84,334 and based on the business activity statements, appears to continue to be profitable. The Tribunal is satisfied that the Business continues to meet the definition of main business in accordance with the criteria under r.1.11 of the Regulations.

4. It is noteworthy that preliminary and setup costs have since been amortised to AUD1,612. Goodwill has increased by the remaining payments associated with the buy-back of the franchise in the amount of AUD40,873 to 29 August 2016 and remained at the same balance of AUD437,067 since. Furthermore, the plant and equipment, valued at nil in the balance sheet as a result of accelerated depreciation and instant asset write-off provisions available to small business in recent years, certainly remain understated. Supporting evidence in relation to BBX and the St George loan taken out by Mr Netto for the Business were before the Tribunal. It was also evident that the Business had commenced repayment of the loans from the Trust and from PGNSRN Investments Pty Ltd. The remaining items on the balance sheet are unremarkable.

5. Based on the discussion above in relation to preliminary and setup costs, stamp duty and interest expenses, the Tribunal calculates Mr Thom’s share of the net business assets to currently approximate AUD169,920, as set out in the table below. Furthermore, information from NAB records total funds held in the name of Mr Thom at 20 May 2020 in the amount of AUD299,363 and total funds held at NAB in the name of Ms Stoop in the amount of AUD20,503. When combined with the net business assets attributed to Mr Thom, the net business and personal assets of the applicant, the applicant’s spouse, or the applicant and his spouse together continue to well exceed AUD250,000. As such, the Tribunal found it unnecessary to pursue further detail in respect of the current market value of the plant and equipment.

Time of decision, AUD
Net assets as per balance sheet at 30 June 2019	51,393
Less stamp duty and interest expense	(10,790)
Less preliminary and setup costs	(1,612)
Net business assets	38,991
45% attributable to Mr Thom	17,546
Plus Loan – the Trust	133,981
Net business assets	151,527
NAB accounts- Mr Thom	299,363
NAB accounts- Ms Stoop	20,503
Net business and personal assets	471,393

1. As discussed in paragraphs 36 and 37 above, Mr Thom has provided substantial evidence in relation to the transfer of funds being lawfully acquired before, during and after the relevant period. It is also clear that Mr Thom has had access to continued income through rental of properties in the United Kingdom and Johannesburg and the sale of financial investments as a financial resource to enable the transfer of funds to Australia. Mr Thom and Ms Stoop continue to hold significant assets in South Africa and the United Kingdom. Accordingly, the Tribunal finds that the funds transferred into Australia by Mr Thom and Ms Stoop to date have been lawfully acquired. Consequently, the Tribunal finds that Mr Thom meets the criteria in respect of cl.892.221(b) of Schedule 2 to the Regulations.

   CONCLUSION

2. As the Tribunal has found that the criteria under cls.892.212 and 892.221(b) of Schedule 2 to the Regulations are both met by the applicant, it is therefore appropriate for the Tribunal to remit the matter to the Department to consider the remaining criteria for the grant of the Subclass 892 visa.

3. The Tribunal finds that as the second named applicant applied on the basis of being a family unit member of the first named applicant, her application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

   DECISION

4. The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:

   ·cl.892.212 of Schedule 2 to the Regulations and

   ·cl.892.221(b) of Schedule 2 to the Regulations.

   Robyn Anderson
   Member