Tjang (Migration) - [2020] AATA 408

Tjang (Migration) [2020] AATA 408 (20 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:
Mrs Herni Tjang

Mr Raymond Sutanto

Miss Nataniela Daniella Sutanto

Mr Nicholas Davin Sutanto
CASE NUMBER:  1607549
HOME AFFAIRS REFERENCE(S): BCC2015/2269283 BCC2015/2269583 BCC2015/2269585
MEMBER:R. Skaros
DATE:20 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Residence) (Class DF) visas.
Statement made on 20 February 2020 at 10:51am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) – ownership interest in actively operating main business at time of application and decision – original company deregistered – new company with same shareholders and director registered and operating new business – for visa purposes, must be the same business – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 1.11(2), Schedule 2, cll 892.211(1), 892.221(a)
CASES
Ko v MIBP [2019] FCCA 2176
Tung-Liang Liang v Minister for Immigration and Citizenship [2009] FCA 189
Yang v Minister for Immigration and Border Protection [2014] FCCA 1576
Zhu v MIBP [2016] FCCA 1874
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 May 2016 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 7 August 2015. At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor). The applicants in this case 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 (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.
The delegate in this case refused to grant the visas on the basis that the first named visa applicant (the applicant) did not satisfy the requirements of cl.892.213 of Schedule 2 to the Regulations because the delegate was not satisfied that in the 12 months immediately before the application was made that the applicant’s main business in Australia had an annual turnover of at least AUD 200,000.
The applicant provided a copy of the delegate’s decision record with the application for review.
On 11 July 2016, the applicant provided submissions, together with updated business activity statements for the period of 12 months before the application was made. The submissions were relevant to the issue of turnover in the relevant period and contended that there were errors in the original activity statements which did not take into account all the business’ sales for the relevant 12 month period.
During the processing of the review, the Tribunal received submissions from the applicant’s representative indicating that she has been operating a new company.
A search of the Australian Securities and Investment Commission (ASIC) database indicated that the business nominated by the applicant as their main business, namely, NDS Blessing Pty Ltd trading as Indomix was deregistered on 1 May 2017. The business’ Australian Business Number (ABN) was cancelled on 7 November 2017.
The above information was particularised in a letter to the applicants under s.359A of the Act dated 4 September 2019. In the letter, the Tribunal explained to the applicant that the information is relevant to the time of decision requirement in cl.892.221 which requires the applicant to continue to satisfy the requirement in cl.892.211 which requires the applicant to continue to have an ownership interest in the business that they had nominated as their main business.
The Tribunal received a written response from the representative, which the Tribunal has considered further below. At the request of the Tribunal, the applicant provided a current and historical company statement for NDS Blessing Pty Ltd.
The applicants appeared before the Tribunal on 13 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from a friend of the applicants, Ms Frida Tamei. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
The applicants were represented in relation to the review by their migration agent. The representative attended the hearing.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the time of decision requirements in cl.892.221.
Ownership interest in main business
Clause 892.211(1) requires that 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. The applicant must continue to satisfy this requirement at the time of this decision: cl.892.221(a).
No more than two businesses can be nominated for this purpose (r.1.11(2)) and only one or both of the businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion: Yang v Minister for Immigration and Border Protection [2014] FCCA 1576 (Yang).
The business relied on by the applicant to satisfy these requirements, as indicated in the application form and supporting documentation, is NDS Blessing Pty Ltd trading as Indomix. The Tribunal has considered the nature of the applicant’s interest in this business, whether the business was actively operating in the period commencing two years immediately prior to the date of application and as at the date of application. The Tribunal has also considered these issues as at the date of this decision and whether the applicant continues to satisfy cl.892.211(1).
The applicants applied for the visa on 7 August 2015. The ASIC extract for NDS Blessing Pty Ltd, being the company that carried on the business (Indomix), indicates that the applicant had been a shareholder in that company since its establishment in December 2012. The documents and activity statements that were lodged with the application, which included an activity statement for the quarter ending 30 June 2015, indicated that the business was actively operating at the time of application and in the two years preceding the application.
As noted above, the information currently before the Tribunal indicates that NDS Blessing Pty Ltd was deregistered in May 2017 and the ABN subsequently cancelled. This raised the concern that the business nominated by the applicant at the time of application may no longer be operating. In response to the Tribunal’s invitation to comment on the information, the representative submitted that the applicant established a new company, Sambal Hijau Pty Ltd (a restaurant business) from 2016 to August 2019 and that from May 2019 the applicant established Mighty Feller Pty Ltd trading as Restaurant Taste Indonesia. It was submitted that the new company has the same shareholders, director and that the investment by the applicants in a business continues. It was submitted that on this basis the applicant continues to have an ownership interest in one or more actively operating main businesses in Australia.
At the hearing the Tribunal took evidence from the applicants regarding their business activities in Australia. The applicant gave evidence that Indomix is an Asian grocery store that was trading in Carlton, Victoria. The applicant and her spouse were the only shareholders of NDS Blessing Pty Ltd. The applicant stated that they continued to run the grocery store in Carlton until the end of 2015. The Tribunal asked the applicant about information in the ASIC extract for NDS Blessing Pty Ltd which indicated that strike off action was in progress between February 2015 and April 2015. The applicants explained that there was an issue with the activity statement reporting. The Tribunal noted that strike off action commenced again in February 2017 until the company was deregistered in May 2017. The Tribunal asked the applicants if there were debts owned by NDS Blessing Pty Ltd, including to the ATO or other creditors. In response, the applicants indicated that this was not the case. The applicants indicated that it was a voluntary decision to wind down NDS Blessing Pty Ltd as they wanted to open a new business. The applicant stated that ASIC had sent them a reminder about the registration fee which they forgot to pay. They stated that they consulted with their accountant who advised them that it was not an issue. The applicant stated that because they had a business partner for the new business they decided to establish a new company. In August 2016 they started the new restaurant, Sambal Hijau, in South Melbourne.
The Tribunal discussed with the applicant and the representative Court decisions which held that the business nominated for the purpose of meeting the time of application criteria in cl.892.211 must be the same business used to satisfy cl.892.221 at the time of decision. The Tribunal noted that when applying for the visa, the applicant had relied on an Asian grocery store business that was operated by NDS Blessing Pty Ltd, whereas at the time of decision the business she is relying on is a restaurant business (Taste of Indonesia) which is being operated by Mighty Feller Pty Ltd. The Tribunal explained to the applicant that it appears that at the time of decision she did not continue to have an ownership interest in the business nominated at the time of application. In response, the applicant stated that she started the business as a grocery store but could not continue because of the issues with ASIC. She stated that they decided to establish another business, a restaurant business, and were not aware that it had to be the same business.
The representative submitted that the applicants had made a substantial investment and still maintained a business in Australia, that the shareholders and directors were the same and that the business employed locals. The applicant stated that she has tried to comply with the visa requirements and has been a genuine business operator.
The applicants’ friend, Ms Tamei, gave evidence that she has known the applicants since 2013, that they employ Australians in their business and that the business will grow in the future.
The Tribunal has carefully considered the evidence and submissions before it as follows.
While it is of no significance in the circumstances of this case, The Tribunal notes that the applicants have not provided any documents regarding their shareholding in Mighty Feller Pty Ltd or the previously established company Sambal Hijau Pty Ltd or any documents regarding the businesses operated by those companies. However, as noted, this is not significant in this case because even if the Tribunal accepts that the shareholding and directorship of those companies was the same as in NDS Blessing Pty Ltd, it still does not assist the applicants because those companies do not operate the Asian grocery business relied on by the applicants to meet the time of application criteria in cl.892.211(1).
In this case, the applicants relied on NDS Blessing Pty Ltd trading as Indomix, an Asian grocery store, as their main business at the time of application. The Tribunal notes that this was the only business in which the applicant had an ownership interest at the time of application. At the time of application the applicant did not have an ownership interest in the restaurant businesses operated by Sambal Hijau Pty Ltd, which was established in 2016, or Mighty Feller Pty Ltd, which was established in 2019. Accordingly, the applicant could not have relied on either of those businesses as their main business at the time of application. The Tribunal considers that the restaurant business currently operated by Mighty Feller Pty Ltd is a different business than the business relied on by the applicant as her main business at the time of application. The Tribunal considers therefore that the applicant cannot rely on her ownership interest in Mighty Feller Pty Ltd to meet the time of decision requirements in cl.892.221(a).
In the recent case of Ko v MIBP [2019] FCCA 2176, the Court held that cl.892.221 required the applicant to continue to have an ownership interest in the same main business nominated at the time of application.[1]
[1] See also Zhu v MIBP [2016] FCCA 1874 which relates to identically worded provisions, cl.890.211 and cl.890.221 and to the references made in that decision regarding the interpretation of ‘continue’ as discussed in the case of Liang (Tung-Liang Liang v Minister for Immigration and Citizenship [2009] FCA 189).
It is not in dispute that at the time of this decision the Asian grocery store business (Indomix), which the applicant nominated as her main business at the time of application, has ceased to actively operate and that the applicant no longer has an ownership interest in the company (NDS Blessing Pty Ltd) that carried on that business. It follows that at the time of this decision, the applicant does not continue to have an ownership interest in the business nominated as her main business when she applied for the visa. It follows that, at the time of this decision, the applicant does not satisfy cl.892.221(a).
As the applicant has not met one of the requirements for the grant of the visa, the decision under review must be affirmed.
The secondary applicants applied for the visa on the basis of being members of the family unit of the first named applicant. There is no evidence before the Tribunal, and the applicants have not claimed, that any of the secondary applicants meet the primary criteria for the visa. In the circumstances the Tribunal must also affirm the decision in respect of the secondary applicants.
DECISION
The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.
R. Skaros
Senior 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
134Cancellation of business visas
….
(10)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.