Tran (Migration)

[2023] AATA 4870

Tran (Migration) [2023] AATA 4870 (4 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thu Mai Tran
Mr Chi Hong Ma
Mr Tuan An Ma
Miss Gia An Ma

CASE NUMBER:  1935426

HOME AFFAIRS REFERENCE(S):          BCC2018/3898411 BCC2018/4084383

MEMBER:Andrew McLean Williams

DATE:4 August 2023

PLACE OF DECISION:  Brisbane

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:

·clause 188.222 of Schedule 2 to the Regulations.

Statement made on 04 August 2023 at 1:32pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – Business Innovation stream – 'points test’ criterion – Business Experience Qualifications – Financial Assets – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134
Migration Regulations 1994 (Cth), rr 1.03, 1.11A; Schedule 2, cl 188.222

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 9 December 2019 by a Delegate of the Minister for Home Affairs, refusing 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 23 June 2018.

3. 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 may also happen to be Applicants for the visa need only satisfy the secondary criteria. The primary criteria include common criteria, and criteria set out in streams. In this case, the first-named visa Applicant, as the primary Applicant (‘the Applicant’), has applied for the visa in the ‘Business Innovation’ stream.

4. The Delegate refused to grant the visas solely on the basis that the Applicant did not satisfy the requirements of clause 188.222 of Schedule 2 to the Regulations because of the Delegate having assessed, on the basis of the limited evidence that was available to the Delegate at the time of making the refusal decision that the Applicant was only eligible for 50 points against the requirements specified in Schedule 7A. Importantly, eligibility for this particular visa requires a minimum of 65 points.

5. The Applicants appeared before the Tribunal on 20 July 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. In the decision now under review, the Delegate had refused to grant the visa solely on the basis of an assessment against the criteria in clause 188.222. On that basis, the issue for determination on the hearing of this review application becomes confined to the question as to whether the Applicant now meets the requirements of clause 188.222, on the basis of fresh evidence.

9. Relevantly, for the purposes of the assessment now conducted by the Tribunal and as set out below, the Applicant had been invited to make application for this category of visa on 11 June 2018.

10. Clause 188.222 in Schedule Two of the Regulations provides:

    188.222

    (1)     the applicant’s score on the business innovation and investment points test is not less than the number of points specified by the Minister in an instrument in writing for this subclause

    (2)     For sub-clause (1):

    (a) an applicant’s score on the business innovation and investment points test is the sum of the applicant’s scores under Parts 7A.2, 7A .3, 7A .4, 7A .5, 7A .7, 7A .8, 7A.9, and 7A .10 of Schedule 7A; and

    (b) the Minister must not give the applicant the prescribed number of points for more than one prescribed qualification in Parts 7A .2, 7A .3, 7A .4, 7A .5, 7A .7, 7A .8 and 7A .10 of Schedule 7A; and

    (c) if the applicant’s circumstances satisfy more than one prescribed qualification in Parts 7A .2, 7A .3, 7A .4, 7A .5, 7A .7, 7A .8 and 7A .10 of Schedule 7A, the Minister must give the applicant points for the qualification that has been satisfied that attracts the highest number of points.

11. The minimum number of points specified by the Minister in the instrument an Applicant must attain to become eligible for a business innovation and investment (provisional) Visa is 65 points.

12. Schedule 7A of the Regulations specifies the following criteria for the purposes of an assessment against the criteria in clause 188.222:

    7A .2 Age

    7A .3 English language qualifications

    7A .4 Educational qualifications

    7A .5 Business experience

    7A .7 Financial assets

    7A .8 Business turnover

    7A .9 Business innovation

    7A .10 Special endorsement

    7A.2    Age

13. The Applicant was born on 29 November 1982.  As at the date of her being invited to apply for the Visa the Applicant was aged 36 years. On that basis, under Part 7A.2, the Applicant becomes entitled to 25 points.

    7A.3    English language proficiency.

14. The Applicant does not seek any points pursuant to criteria 7A.3.  Accordingly the Tribunal finds that the Applicant is entitled to nil points under this criteria.

    7A.4    Educational Qualifications.

15. Under this criteria the Applicant seeks five points, on the basis of her having been awarded either a trade qualification, diploma or bachelor degree from an Australian educational institution.

16. The Applicant made claims and provided evidence of a diploma of commerce having been issued in her name by the International Business College (AUS) Inc., thus meeting the educational qualification requirement to be eligible for five points. Accordingly, the Tribunal finds that the Applicant is now entitled to 5 points under this criteria.

    7A.5    Business Experience Qualifications

17. Under this criteria, the Applicant seeks 15 points on the basis of her having held one or more ‘main business’ for not less than seven years during the eight years immediately prior to the date of her being invited to apply for the visa.  As noted above, the Applicant was invited to apply for the Visa on 7 June 2018.

18. The Applicant works as a sales manager for her father’s company the Lien Thai Production – Commercial Company Limited (‘the company’).  The company conducts operations as a textile manufacturer in Ho Chi Minh City, Vietnam. The company is the ‘main business’ now relied upon by the Applicant for the purposes of this visa application.

19. The Applicant commenced her current role with the company in 2011 when aged 29, and has worked continuously in the same role since then and on a full-time, salaried basis. The Applicant also has a 30% ownership stake in the company.

20. At the conclusion of the hearing on 20 July 2023 the Applicant was afforded further leave by the Tribunal to submit further documentary material in demonstration of her business experience. On 25 July 2023 the Tribunal received further evidence from the Applicant in the form of a letter from the company, now confirming each of those things already said by the Applicant during the Tribunal hearing in relation to her employment and the roles performed by her within the company. That evidence is now accepted by the Tribunal as being sufficient confirmation.

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

22. 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.

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

24. 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 AUD$400 000, 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 AUD$400 000, the value of the ownership interest must be at least 51% of the total value of the business. 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

25. The Tribunal is satisfied that the company does meet all of the definitional requirements of a ‘main business’ for at least 2 of the 4 fiscal years immediately before the date of the Applicant’s invitation to apply for the visa.

26. Accordingly, the Tribunal finds that the Applicant is entitled to 15 points.

    7A.7    Financial Assets

27. As the Applicant was invited to apply the Visa before 1 July 2021, her asset position is to be demonstrated in the two fiscal years immediately before the time of invitation to apply for the visa which was in June, 2018.

28. Initially, the Delegate assessed the Applicant as being eligible for nil points under this criteria, on the basis that inadequate evidence in relation to financial asset ownership had been provided by the Applicant in support of her visa application.

29. On 12 July 2023 the Applicant provided the Tribunal with correspondence from her accountant, a Mr Joe Perrozzi, as well as a statement of assets and liabilities position (form 1139A), dated 31 December 2016 which indicates that the Applicant and her husband control assets amounting to $1,602,015 (AUD) as at 31 December 2016. Another statement of assets and liabilities position as at 31 December 2017 indicates that the Applicant had control over assets the equivalent of $3,560,823(AUD) as at 31 December 2017. This evidence is now accepted by the Tribunal. Accordingly, the Applicant becomes eligible for 15 points under criteria 7A.7.

    7A.8    Business Turnover  

30. As the Applicant was invited to apply for the Visa prior to 1 July 2021, the Applicant claims five points on the basis of her having an ownership interest in one or more main businesses that had an annual turnover of at least $500,000 (AUD) in at least two of the four fiscal years immediately prior to the date of her being invited to apply for the Visa.

31. The financial statements for the company show sales of $686,212 (AUD) for the year ending 31 December 2016, and $732,546 (AUD) for the year ended 31 December 2017.  Accordingly the Tribunal now finds that the Applicant is entitled to 5 points under this criteria.

    7A.9 & 7A.10  Business Innovation Qualification and Special Endorsement Qualification

32. No points have been claimed by the Applicant under either the Business Innovation Qualification or the Special Endorsement Qualification eligibility criteria.  Accordingly the Tribunal now attaches nil points to these criteria.

    DECISION

33. On the basis of the foregoing analysis the primary Applicant is entitled to 65 points and meets the eligibility criteria under clause 188.222 in Schedule 2 of the Regulations. In these circumstances the other named Applicants as family members of the first-named Applicant also now meet the secondary visa holder eligibility requirements in clause 188.311 in Schedule 2 of the Regulations.

34. 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 188.222 of Schedule 2 to the Regulations.