Weng (Migration)

[2022] AATA 1946

Weng (Migration) [2022] AATA 1946 (9 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zusheng Weng
Ms Chunying Wang
Ms Caiping Weng
Ms Lisa Weng
Mr Leonel Weng

REPRESENTATIVE:  Ms Karen Wong (MARN: 0213269)

CASE NUMBER:  1901355

HOME AFFAIRS REFERENCE(S):          BCC2018/4516466

MEMBER:Danielle Galvin

DATE:9 May 2022

PLACE OF DECISION:  Melbourne

DECISION:  The decision under review is affirmed.

Statement made on 09 May 2022 at 2:27pm

CATCHWORDS
MIGRATION – Business Innovation and Investment (Class EB) visa – Subclass 188 (Business Skills (Provisional)) – whether ‘actively operating’ in Australia – Policy guidelines – Retail Trade in liquor products – no liquor licence – sales figures – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 188.232, 188.311

CASES
Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513

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 2 January 2019 to refuse to grant the visa applicant a Business Skills (Provisional) Subclass 188 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant, Mr Zusheng Weng, applied for the visa on 16 October 2018. The remaining applicants are members of the applicant’s family unit. The applicant had applied for a Business Skills (Provisional)(class EB) Business Innovation and Investment (Provisional)(Extension)(subclass 188) visa under the Business Innovation Extension stream. The applicant must therefore meet the legal requirements specified under the Migration Act and Regulations.

3. The delegate refused to grant the visa on the basis that the applicant did not meet the legal requirement in clause 188.232 in Schedule 2 of the Regulations on the date of the delegate’s decision.

4. At the time of the application clause 188.232 stated that:

   (1)For at least the 2 years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia.

   (2)The applicant continues to have the ownership interest mentioned in subclause (1).

5. The delegate referred to Policy guidelines to determine how a business is “actively operating in Australia’. For a business to be considered to be in Australia it must supply goods and/or services connected with Australia, such as:

   ·Supply goods and/or services wholly within Australia-for example, sale of goods to a customer where those goods are delivered, or made available, in Australia

   ·Supply goods and/or services from Australia-for example a sale that involves goods being exported from Australia

   ·Supply goods and/or services to Australia-for example, a sale of goods that involves the goods being brought to Australia and importing the goods into Australia or installing or assembling the goods in Australia

   ·Supply rights or services within Australia through a business based in Australia-for example, consultancy services that are carried out in Australia or entertainment events that are performed in Australia.

   The delegate further stated that when assessing direct and continuous management the following may be taken into account:

   ·Whether the applicant has the authority to manage the business (for example, majority ownership)

   ·Whether the applicant is the sole director, proprietor or manager of the business

   ·Whether the applicant has spent significant periods of time absent from the business location (for example, overseas)

   ·Whether there are any other individuals (other than the applicant’s spouse or de facto partner) who might have a management role in the business

   ·Whether the activities of the business are regular and ongoing.

   PAM3:GenGuideM states that:

   The business must also have been actively operating. Officers are to consider if the business activity was of a repetitive, continuous and permanent nature.

6. The delegate concluded, having assessed the information before them, that in the absence of information that any purchases and sales for approximately 15 months prior to the making of the application, the business was not of a repetitive, continuous and permanent nature. The remaining applicants were also unsuccessful as the delegate found that they were not members of the family unit of the holder of a subclass 188 visa under clause 188.311.

7. The delegate had access to the following information:

   ·The application which states that the main business is Martin & Mari Pty Ltd t/a Crown on the Hill Cellars. The industry type is stated as Retail Trade in liquor products. The applicant is described as the Manager since 13/2/15 and has a 100% share of the business in 2018 and 2017;

   ·An undated letter to the Department from the applicant’s agent claiming that the applicant holds 100% shares in the company and attaching the following documents:

   ·ASIC company search of Martin & Mari Pty Ltd (ACN:606 358 632) as at 19/10/18 showing that the sole director is the applicant

   ·Letter to the applicant’s company dated 4/5/16 from Australian Business Register confirming its ABN as 30 606 358 632 effective from 27/4/16

   ·Contract of the sale of Business between L&J TRADING PTY LTD and MARTIN & MARI PTY LTD signed by the applicant and undated describing the business as Crown on the Hill, licensed bottle shop for $468,000 and transfer of lease for 717 Mountain Highway Bayswater dated 3/9/13 transferred to Martin &Mari PTY LTD on 30/1/18;

   ·certificate of registration for Martin & Mari Pty Ltd 11/6/15;

   ·applicant’s statement dated 11/12/18 stating that he has managed and controlled his company by being in Australia since April 2016;

   ·bundle of letters in relation to the applicant’s search to purchase a business;

   ·open letter dated 5/10/18 from Jason Tan of WTT Global Trading stating that he has known the applicant since 29/1/18 and has supplied liquor products for his business;

   ·open letter from PG Accountants Pty Ltd stating that they act for the applicant

   ·tax invoice from Xinghai Trade Pty Ltd to applicant’s company dated 13/4/18 for  cigarette purchases for $1340.50;

   ·tax invoice from Original Sales Pty Ltd for alcohol $1,052 dated 6/5/18;

   ·statement from Phoenix Beers issued to Crown on the Hills Cellars dated 31/7/18 for $721.92;

   ·bundle of applicant’s bank statements;

   ·BAS for Martin &Mari Pty Ltd 1/7-30/9/16 showing sales as $0 and capital purchases as $45,324, 1/10-31/12/16 showing sales as $0, Jan-Mar 2017 showing sales as $0, Apr-Jun 2017 showing sales as $9,289, Jul-Sep 2017 showing sales as $0, Oct-Dec 2017 showing sales as $0, Jan-Mar 2018 showing sales as $167,512, Apr-Jun 2018 showing sales as $219,470;

   ·Itemised Tax account for Martin & Mari Pty Ltd 15/3/17-12/12/18;

   ·Financial statements for Martin & Mari Pty Ltd FYE 30/6/18 showing income as $372,515.55 and business suffered a loss of $8,025.62 and loans from directors in the amount of $750,006;

   ·Business transaction bank statements for Martin &Mari Pty Ltd from December 2016-Dec 2017 showing little movement;

   ·Email from MELMAL lawyers to applicant dated 6/12/18 advising that he cannot trade in the sale of liquor without a licence and cannot trade under the vendor’s licence attaching an email from the Victorian Commission fro Gambling and Liquor Regulation in relation to premises in Carlton which is not the address for the business the applicant claims to operate the lawyers dated 23/3/17 acknowledging the application for the transfer of a liquor licence;

   ·ASIC company search of Martin & Mari Pty Ltd as at 19/10/18 showing sole director as the applicant and an Australian business Register letter dated 4/5/16 confirms the ABN for Martin &Mari Pty Ltd;

   ·Contract for sale of business for Crown on the Hill Cellars-licensed bottle shop;

   ·Bundle of photos of a Cellarbrations shop with a drive thru

   ·Bundle of references about business dealings.

8. On 8 February 2022 the Tribunal wrote to the applicant requesting information in support of the review application and in particular sought information that for at least 2 years immediately before the application to the Department (from 16/10/16-15/10/18), the applicant had an ownership interest in one or more businesses that were actively operating in Australia and continue(s) to do so (cl.188.232). The applicant was also advised that information before the Tribunal indicated that Martin & Mari Pty Ltd was not actively operating a main business for approximately 15 months during the relevant period. The applicant was advised that it was a requirement of clause 188.232 that for at least 2 years immediately before the application was made the applicant had an ownership interest in one or more businesses that were actively operating in Australia and continues to do so. A written response was required by 22 February 2022.

9. The applicants were represented in relation to the review.

10. On 18 February 2022 the agent for the applicant wrote to the Tribunal advising that the applicant was unable to provide any documents to support the review application and waived his right to a hearing requesting that a decision be made as the applicant intends to request Ministerial Intervention to remain in Australia.

11. Department records indicate that the applicant’s movements in and out of Australia are as follows:

    ·Arrived 21 March 2015 (EB 188P)

    ·Departed 1 April 2015 (EB 188P) -a stay of 11 days in 2015

    ·Arrived 26 April 2016 (EB 188P)

    ·Departed 7 April 2017 (EB 188P)- a stay of approximately 1 year

    ·Arrived 27 September 2017 (EB188P)

    ·Departed 5 May 2021-WB-020- a stay of approximately 7-8 months

    ·Arrived 11 November 2021-WB 020- to date

12. These records show that the applicant was not in Australia for approximately 7 months of 2017 in the year preceding the application.

13. On 30 March 2022 the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on or respond to the information as to the movements of the applicant and required a response in writing by 13 April 2022.

14. On 7 April 2022 the applicants’ agent wrote to the Tribunal stating that the applicant was unable to meet clause 188.232(1) and requested that a decision be made.

15. In these circumstances the Tribunal has determined to proceed to make a decision based on the information currently before it.

16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant meets the required criteria to be met under Clause 188.232.

    Clause 188.232(1)-For at least the 2 years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia.

18. In order for the applicant to meet cl.188.232(1) the Tribunal must be satisfied that the relevant business or businesses were actively operating in the period commencing two years immediately prior to the date of the application.

19. The term “actively operating” is not defined in the Act or Regulations. In considering whether the requirement is met, the Tribunal may consider whether the business exhibited activity of a “repetitive, continuous and permanent character” at the relevant times, in which the business actively sought to generate business, in fact generated trade and custom and derived some financial gain for its activities in the relevant period: Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513 at 71.

20. Given that the subclass 188 Provisional Business Innovation & Investment visa application was made on 16 October 2018, the relevant 2 year period for ownership in a main business by the applicant is from 16 October 2016 to 15 October 2018.

21. The application to the Department identified the main business as Martin & Mari Pty Ltd (the Company) t/a Crown on the Hill Cellars (the Business). The industry type is stated to be Retail Trade in liquor products. The applicant is described as the Manager since 13 February 2015 and had a 100% share of the business in 2018 and 2017. The provided ASIC search for the Company identifies that the applicant is the sole director and shareholder. No ABN search for the Business was provided although the Tribunal notes that an ABN was granted to the Company.

22. The Tribunal notes that this Business was not purchased by the Company until some time in 2018. The contract of the purchase of the Business is undated however, the lease transfer for the site from which the Business operates is dated 30 January 2018. In the applicant’s statement of 11 December 2018 he stated that he has managed and controlled his Company since April 2016. However, the Company is the claimed owner of the Business and the Tribunal has no information as to what business if any the Company undertook prior to the purchase of the Business. There is no evidence before the Tribunal that the Company had been involved in the retail of liquor prior to the purchase of the Business and the letters of support refer to involvement with the applicant in business from 2018. Further, the history provided indicates that the applicant had tried but failed to secure a business prior to the purchase of the Business.

23. The applicant has not provided a copy of a liquor licence entitling the Business to operate legally. The most recent email from the applicant’s solicitor indicates that as at 6 December 2018 there was no licence in place which would entitle the applicant to legally sell alcohol in the State of Victoria.

24. The submitted BAS for the Company for the period July 2016 to March 2017 show that the company made no income from sales nor did it make income from sales from July to December 2017. This information indicates that the Company was not operating a business that was actively operating for these periods. However, from January to June 2018 sales figures were recorded. The Tribunal did not receive any information as to what the sales were for or whether they related to the sale of liquor as part of the Business save for 2 invoices from Xinghai Trade Pty Ltd for $1,340.50 and from Original Sales Pty Ltd for alcohol for $1,052. Further, the Tribunal notes that the applicant was not in Australia for the majority of 2017. The applicant has stated that he is the only named manager of the Business and in the absence of any information as to how or if the Business was operating in his absence the applicant has not demonstrated that the Business was actively operating in Australia for at least 2 years immediately before the application was made. This is despite the evidence that the applicant has established that they were the sole director and shareholder of the Company that owned the Business.

25. The applicant therefore has failed to demonstrate that the business was actively operating in the period commencing two years immediately prior to the date of the application and therefore does not meet the requirements of Clause 188.232(1).

    Clause 188.311- The applicant is a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa (the primary applicant).

26. Given that the applicant does not meet the criteria under clause 188.232 the remaining migrating family members have not demonstrated that they are members of the family unit of the holder of a Subclass 188 visa and therefore that they meet the criteria under clause 188.311.

    DECISION

27. The decision under review is affirmed.

    Danielle Galvin
    Member