Varca Thomeu (Migration)

Varca Thomeu (Migration) [2022] AATA 4697 (12 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Fernando Varca Thomeu
Mrs Gabriela Vanossi Thomeu
Miss Helena Vanossi Thomeu
Miss Olivia Vanossi Thomeu
REPRESENTATIVE:  Mr Paul Taekhwan Kwon (MARN: 0701575)
CASE NUMBER:  1914754
HOME AFFAIRS REFERENCE(S):          BCC2018/1640619

MEMBER:K. Chapman
DATE:12 December 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Provisional) visas.

Statement made on 12 December 2022 at 5:52pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – points test criterion – IMMI 12/041 – Business experience qualification – two claimed ‘main businesses’ – divestment of shares in business – direct and continuous involvement in management – Financial asset qualifications – net value of business and personal assets – Business innovation qualifications – registered trademark – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.11; Schedule 2, cl 188.222

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 Home Affairs on 30 May 2019, to refuse to grant the applicants Business Skills (Provisional) Subclass 188 visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’). This is a points based visa designed for skilled applicants, who have submitted an expression of interest and received an invitation to apply.
The first named applicant, Mr Fernando Varca Thomeu, was invited to apply for the visa on 3 April 2018. He so applied on 12 April 2018, including the second, third and fourth named applicants in the visa application. The delegate refused to grant the visa on the basis that the points test in cl 188.222 was not satisfied by the first named applicant (hereafter ‘the applicant’).
On 10 June 2019, the applicant applied to the Tribunal for review of the visa refusal decision. He submitted a copy of the delegate’s decision with his application for review. On 28 July 2022, the Tribunal wrote to the applicant, pursuant to subsection 359(2) of the Act, inviting him to provide information to support his claim to satisfy the points test in cl 188.222. In response, the applicant submitted material including, but not limited to, written submissions, sales reports, marketing material, financial records, business email correspondence, trademark documentation, a Joint Venture Agreement and photographs. All submitted material has been duly considered by the Tribunal.
The applicant appeared by video conference before the Tribunal on 10 October 2022 to give evidence and present arguments. He confirmed he was comfortable participating in the hearing by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages. The applicant confirmed he understood the interpreting service. The applicant was represented by his registered migration agent (‘the representative’) who attended the review hearing by video and was permitted to make submissions.
The Tribunal afforded the applicant the opportunity to lodge post-hearing material until 31 October 2022. By that date final submissions were received including written supplementary submissions, financial records and trademark information. All material received has been duly considered by the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present matter is whether the applicant satisfies the points test criterion which requires that his score, when assessed in relation to the business innovation and investment points test, is not less than the score prescribed by the Minister in an instrument in writing. The relevant instrument is IMMI 12/041, with the required minimum number of points being 65. The delegate determined that the applicant was entitled to only 50 points. In the present matter, the applicant makes claims in relation to two ‘main businesses’ for the purposes of the points test.
At the time of application, the applicant claimed a total of 65 points. However, by the time of the review hearing he submitted he was entitled to 85 points. The Tribunal canvassed this matter at length with the applicant and the representative. In sum, the representative conceded that claims and evidence were not submitted at the time of application with respect to all relevant categories, as the representative held the opinion sufficient evidence had been submitted to obtain the minimum number of points at that time.
For the reasons outlined below, on balance, the Tribunal is satisfied that the applicant is entitled to only 60 points. Therefore, he does not satisfy the criteria for the Subclass 188 visa.
Part 7A.2 - Age qualifications
Points are available under this Part if the applicant was aged between 18 and 55 years at the time of invitation to apply for the visa.
At the time of invitation, the applicant was aged 35 years. Therefore, the applicant is entitled to 25 points under this Part.
Part 7A.3 – English language qualifications
Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa.
At the time of invitation, the applicant provided evidence of vocational English language ability. Therefore, the applicant is entitled to 5 points under this Part.
Part 7A.4 – Educational qualifications
An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard.
At the time of invitation, the applicant provided evidence of a Bachelor qualification in business, science or technology by an educational institution that is of a recognised standard. Therefore, the applicant is entitled to 10 points under this Part.
Part 7A.5 – Business experience qualifications – Business Innovation stream
Points are available under this Part for applicants who have held one or more main businesses for not less than 4 years in the 5 years immediately before the time of invitation to apply for the visa, or not less than 7 years in the 8 years immediately before the time of invitation to apply for the visa. The time of invitation for the visa, in the present matter, was 3 April 2018.
The applicant initially claimed points for business experience of not less than 7 years in the 8 years immediately before the time of invitation to apply for the visa. He subsequently revised this claim during the review, with the guidance of the representative, to seek points for business experience of not less than 4 years in the 5 years immediately before the time of invitation to apply for the visa. The applicant relies upon two claimed ‘main businesses’ in relation to the visa application. They are King Size Comercio de Roupas LTDA (‘King Size’) and Grand Comercio de Roupas LTDA (‘Grand’). These businesses are based in Brazil and specialise in retail fashion.
The delegate awarded no points to the applicant for business experience. This was because the applicant declared in submitted documentation that he divested his shares in both claimed main businesses in May 2016, prior to coming to Australia in September 2016 to study English. Furthermore, the delegate did not accept the applicant maintained an active role in either claimed main business once he was residing in Australia as a student.
At the review hearing, the Tribunal canvassed in detail the applicant’s business experience. It is apparent he has significant experience in the fashion industry through his involvement in family businesses in Brazil, including ‘King Size’ and ‘Grand’. However, the applicant confirmed to the Tribunal, in unambiguous terms, that he divested his shares in both businesses in May 2016 prior to travelling to Australia to study English. Indeed, the representative also conceded the applicant did not have an ownership interest in either main business at the time of invitation for the visa. The applicant also confirmed at hearing that he presently does not hold shares in either business.
The Tribunal has paid careful regard to the provisions of reg 1.11 in relation to whether the applicant held one or more main businesses at the relevant time. Of note, regarding the claimed main businesses, the applicant must demonstrate that he ‘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.’
During the review hearing, the Tribunal canvassed with the applicant his role in the main businesses after he divested his shares in them. The applicant advised that he planned to bring his family to Australia with him so he could study English. According to the applicant he divested all his shares as it would be difficult to sign legal documents pertinent to Brazil in Australia. He maintained he still had involvement in the businesses after arrival in Australia, utilising modern communications technology.
However, the applicant also advised the Tribunal that his studies in Australia were full time and lasted approximately two years, whilst he held a Student visa. He also informed the Tribunal that his work in the main businesses after arrival in Australia was mostly part time, to help his father by working for three of the family companies. The Tribunal canvassed with the applicant why in his visa application and Form 80 he indicated he ceased employment with each main business at various points in 2016. In response, the applicant contended he had only ceased work based on the documents but he continued to work in the main businesses and continues to do so today.
On balance, the Tribunal does not accept the applicant maintained direct and continuous involvement in management of any claimed main business, from day to day and in making decisions affecting the overall direction and performance of the business, after September 2016. This is because the applicant gave clear indications in his visa application and Form 80 of ceasing employment in the claimed main businesses in 2016, he divested his shares in them in May 2016 and he studied full time in Australia for approximately two years from September 2016. Whilst the Tribunal is prepared to accept the applicant provided some sporadic assistance to his father to manage three of the family businesses after his arrival in Australia, by utilising modern communications technology, it does not accept he maintained direct and continuous involvement in management of any claimed main business from September 2016 until he resumed residence in Brazil following his studies.
Therefore, the Tribunal is not satisfied that the applicant held a main business after September 2016, having regard to the requirements in reg 1.11. On balance, the Tribunal is not satisfied the applicant held one or more main businesses for not less than 4 years in the 5 years immediately before the time of invitation to apply for the visa, or for not less than 7 years in the 8 years immediately before the time of invitation to apply for the visa. It follows that the applicant is unable to claim points for business experience qualifications, given the time of invitation to apply for the visa was 3 April 2018.
Accordingly, the applicant is not entitled to any points under the Part. The Tribunal so finds.
Part 7A.7 – Financial asset qualifications
Points may be awarded under this Part if the net value of the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, was not less than AUD 800,000 to not less than AUD 2,250,000 in each of the two fiscal years immediately before the time of invitation to apply for the visa.
Initially, at the time of application for the visa, the applicant claimed business and personal assets of not less than AUD 800,000 and less than AUD 1,300,000 in each of the two fiscal years immediately before the time of invitation to apply for the visa. He provided documentary evidence such as financial reports, property valuations and banking records. The applicant’s claim was accepted by the delegate and 5 points were awarded at the time of the primary decision.
However, by the time of the review hearing, the applicant claimed his relevant assets in the years concerned were in fact AUD 1,479,860.50 and AUD 1,315,443.21 respectively. Accordingly, he now claims 15 points under the Schedule 7A points test. When asked by the Tribunal why he did not make these claims when he applied for the visa, the applicant advised he didn’t check his assets thoroughly then because he was under the impression he had enough points to obtain the visa. On balance, the Tribunal is satisfied the applicant gave truthful evidence regarding this matter. Furthermore, the Tribunal has carefully considered the latest documentary evidence regarding the applicant’s business and personal assets at the relevant times. Such evidence, including Brazilian taxation records, property valuations and Australian asset documentation supports the applicant’s claims.
Therefore, on balance, the Tribunal is satisfied that the applicant is entitled to 15 points under this Part.
Part 7A.8 – Business turnover qualifications
Points may be awarded under this Part if the applicant had an ownership interest in one or more main businesses that had an annual turnover of not less than AUD 500,00 to not less than AUD 2,0000 in at least 2 of the 4 years immediately before the time of invitation to apply for the visa.
The Tribunal accepts the applicant’s ownership interests in the two main businesses up until May 2016, as did the delegate. Having regard to the submitted evidence, the Tribunal is satisfied that the relevant main businesses had annual turnover of not less than AUD 500,000 and less than AUD 1,000,000 in at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa. Accordingly, as with the delegate, the Tribunal is satisfied that the applicant is entitled to 5 points under this Part. The Tribunal so finds.
Part 7A.9 – Business innovation qualifications
Points are available under this Part for applicants whose main business has registered patents, designs, or trade marks within certain time periods, or whose main business derived certain annual turnover from export trade, or whose main business demonstrated certain growth levels over a specified time, or whose main business entered into certain types of joint venture agreements or had qualified for certain government grants. The applicant made no claims in relation to this Part at the time of application for the visa. However, by the time of the review hearing, he submitted claims totalling 15 points.
The applicant now claims 10 points for having a relevant registered trade mark pursuant to Item 7A92 of Schedule 7A. He has submitted evidence to the Tribunal, including documentation issued in May 2015 by The National Institute of Industrial Property in Brazil, demonstrating that King Size Comercio de Roupas LTDA (‘King Size’) owns the ‘Broward’ trademark. According to the certificate, dated 14 August 2007, issued by The National Institute of Industrial Property in Brazil, this trademark is owned by Camisaria Varca LTDA.
Item 7A92 requires that, at the time of invitation to apply for the visa, the applicant or a main business of the applicant had one of more registered trademarks that were registered not less than one year before that time and were used in the day to day activities of the main business. Given the submitted trademarks, ‘Broward’ and ‘King Size’, are owned by companies in Brazil, it is necessary for the applicant to demonstrate that at the time of the invitation to apply for the visa at least one of these entities was a ‘main business’ pursuant to reg 1.11. As has been previously outlined, the Tribunal is not satisfied that the applicant held a main business after September 2016. Additionally, there is no persuasive evidence before the Tribunal indicating the applicant held any other ‘main business’ at the time of invitation to apply for the visa.
Therefore, the Tribunal is not satisfied that the applicant, or a main business of the applicant, had any trade mark at the time of invitation to apply for the visa. The applicant is therefore not entitled to any points with regard to the trade mark criterion. The Tribunal so finds.
The applicant also claimed during the review that he is entitled to 5 points regarding a main business, in which he held an ownership interest, operating in accordance with a formal joint venture agreement entered into with another business pursuant to Item 7A93 of Schedule 7A. He has submitted evidence to the Tribunal, including a copy of the joint venture agreement between King Size Comercio de Roupas LTDA (‘King Size’) and Thom-mem Comercio De Roupas LTDA dated 14 August 2007. The latter company is one held by a member of the applicant’s family.
As previously outlined, the applicant did not hold a main business after September 2016, nor at the time of the invitation to apply for the visa. Accordingly, the applicant is not entitled to any points with respect to the joint venture criterion. The Tribunal so finds.
Therefore, the Tribunal is satisfied that the applicant is not entitled to any points under this Part.
Part 7A.10 – Special endorsement qualifications
Ten points may be awarded under this Part if the nominating State or Territory government agency had determined, at the time of invitation to apply for the visa, that the business proposed by the applicant was of unique and important benefit to the State or Territory where the nominating government agency is located. The applicant makes no claims under this Part and accordingly he is not entitled to any points respectively.
Conclusion on points
Based on the above assessment, having regard to the applicable legislation, the number of points to be awarded to the applicant under Schedule 7A is:
7A.2 - Age  25 points
7A.3 - English language  5 points
7A.4 – Educational  10 points
7A.5 – Business experience  0 points
7A.7 – Financial assets  15 points
7A.8 – Business turnover  5 points
7A.9 – Business innovation  0 points
7A.10 – Special endorsement  0 points
Total points  60 points
The applicant’s assessed score under the points system is, therefore, 60 points.
At the time of application for the visa, the pass mark was 65 points: IMMI 12/041. The applicant has therefore not achieved the qualifying score to pass the points test.
For the above reasons, the applicant is entitled to a maximum of 60 points under the points test. As the applicant’s score is less than the score required under IMMI 12/041, the applicant does not satisfy cl 188.222, which is a prescribed criterion for the grant of the visa.
For the reasons expressed above, the Tribunal finds that the requirements for the Subclass 188 visa in the Business Innovation stream have not been satisfied. No claims have been made in respect of the other streams for the visa and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams. Accordingly, the decision under review must be affirmed.
Given the applicant has not satisfied the requirements for the grant of a Subclass 188 visa, it follows that the second, third and fourth named applicants do not satisfy the requirements of cl 188.311. The Tribunal so finds.
DECISION
The Tribunal affirms the decision not to grant the applicants Business Skills (Provisional) visas.
K. Chapman
Member

[2022] AATA 4697

12 December 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction