Yeo (Migration)

[2019] AATA 3213

Yeo (Migration) [2019] AATA 3213 (31 July 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Ban Hun Yeo

Ms Susie Su Li Wong

Ms Wen Yi Chew

CASE NUMBER:  1611198

DIBP REFERENCE(S):  BCC2015/2193773 BCC2016/1564634

BCC2016/1886337 BCC2016/2552456

MEMBER:  Wan Shum

DATE:  31 July 2019

PLACE OF DECISION:  Sydney

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

·      cl.892.212 of Schedule 2 to the Regulations.

Statement made on 31 July 2019 at 4:26pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – no response to s 359 invitation – not entitled to appear before the Tribunal – minimum net value requirement – business and personal assets – value of business assets – director’s loan to the business – unsecured loan – value of personal assets – property valuation report – Australian employment – equivalent to at least one full-time position – employee also director of business – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 892.212

CASES
Hasran v MIAC [2010] FCAFC 40

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 Immigration on 8 July 2016 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 30 July 2015.

3. The delegate was not satisfied that the first named applicant (the applicant) met the requirements of cl.892.212. The delegate found that the net and personal assets of the applicant, and his spouse, did not meet the minimum net value required in the 12 month period prior to the application.

4. The applicants have sought review of that decision and were represented in relation to the review by a registered migration agent.

5. The Tribunal wrote to the review applicants pursuant to s.359 of the Act, inviting them to provide information about whether they met the requirements of cl.892.212 in writing.

6. The invitation was sent by email to the representative and advised that, if the information was not provided in writing by 17 April 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The Tribunal received a letter on 18 April 2019 advising that the Tribunal’s letter had been diverted to the representative’s junk mail folder and they had not read it until that date. They requested further time to provide evidence to demonstrate that the applicants met the requirement. As the response was received after the due date, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal agreed to the request from the representative to allow further time to provide evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant satisfies cl.892.212. This clause requires the applicant to meet certain requirements broadly relating to their assets. This provision does not need to be met if the appropriate regional authority has determined that there are exceptional circumstances. Otherwise, at least two of the following three criteria must be met:

   · Australian employment (cl.892.212(a)): in the 12 months ending immediately before the visa application was made, the main business(es) in Australia of the applicant, the applicant’s spouse or de facto partner, or the applicant and spouse or de facto partner together employed at least one full time employee over that 12 month period (or employed a number of employees for a total number of hours equivalent to that which would have been worked by one full time employee) who is not the applicant or

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a member of their family unit and who is an Australian citizen, Australian permanent resident or New Zealand passport holder;

·Business & personal assets (cl.892.212(b)): at the time of visa application and throughout the period of 12 months immediately before the time of application, the net value of the business and personal assets in Australia of the applicant, or the applicant’s spouse or de facto partner or their assets combined had a net value of at least AUD250 000. Further, these assets must have been lawfully acquired;

·Assets in main business (cl.892.221(c)): at the time of visa application and in the 12 months immediately before the time of application, the total value of the net assets in the main business(es) in Australia of the applicant, or the applicant’s spouse or de facto partner, or the applicant and his spouse or de facto partner together have a net value of at least AUD75 000. Further, these assets must have been lawfully acquired.

1. As part of the application, the applicant provided Form 949 which includes a section completed by an authorised officer of the NSW Department of Industry, being the appropriate regional authority. The officer indicated that she had determined that there were no exceptional circumstances in this case. Accordingly, the Tribunal has considered whether the substantive requirements of this criterion are met. The applicant had submitted that the requirements concerning Australian employment and business and personal assets were met.

2. On the application form 1217, the applicant claimed to hold 50% ownership in IMETAL Pty Ltd. The main business activity is ‘metal waste and scrap wholesaling’. According to the information provided on the application form, the applicant and his spouse claimed to have $164,991 worth of net assets in the business in 2013-2014 and $220,254 in 2012-13. This was calculated based on net assets of the business of $91,821 and ($7,194) respectively, and claimed loans of $64,991 and $215,254 to the business in those periods. The

   calculation appears incorrect. In any case, the delegate considered that the applicant’s total business and personal assets combined were $237,156 at 30 June 2015 and $210,606 at 30 June 2014. This is because the delegate did not accept the evidence provided of a director’s loan to the business and did not take into account the unsecured loan to Gearbox Masters Pty Ltd reflected on the balance sheet as assets of the main business. The delegate concluded that the applicant’s personal assets as at 30 June 2015 was $240,050 and $242,960 at 30 June 2014 and the net business assets of which the applicant claimed 50% share were ($2,894) and ($32,354) respectively.

3. On review, the applicant’s representative submitted that cl.892.212(a) and cl.892.212(b) are met.

4. In regard to the latter, being the value of the applicant and his spouse’s net personal and business assets, it was claimed that, accepting the delegate’s valuation of the net business assets, the applicant’s personal assets were such that he met the $250,000 minimum. The value of the applicant’s personal assets was based on his ownership of a property on Mowbray Road, Lane Cove NSW. The title search document obtained from NSW Land Registry Services has the applicant’s name listed under the First Schedule, with a mortgage to Westpac Banking Corporation. The Tribunal accepts that the applicant owns this property on the basis of this search and the additional documents provided of a recent council rates notice, settlement letter and copy of the first page of the contract for the sale of the land and settlement statement. The representative has obtained and submitted to the Tribunal a property valuation report prepared by Oracle Property which gives an estimated valuation of the property at the relevant dates of 31 July 2014, 31 July 2015 and 22 August 2019. Having regard to the detailed report and the valuation methodology, the Tribunal accepts the valuation of the property given at each point in time. The Tribunal has also had regard to the

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bank statements provided of the applicant’s loan with Westpac bank for this property for the period July 2014 to January 2019.

1. On the information before it, the Tribunal considers the net value of the asset to be as follows:

Date	Valuation	Mortgage (from bank statement at date indicated)	Net Value
31 July 2014	$720,000	$448,893 (8 July 2014)	$271,107
31 July 2015	$850,000	$441,160 (8 July 2015)	$408,840
22 August 2019	$890,000	$416,523 (8 August 2019)	$473,477

1. The submission is based on the net value of the property as personal assets only. The Tribunal notes that the applicant’s bank statements for his mortgage also show amounts contained in an offset account. The amounts in the offset account at the above dates were positive but not separately included.

2. In any case, the Tribunal accepts that the applicant held over $250,000 at the time of application and in the 12 month period immediately before as per the following calculations:

31 July 2014	31 July 2015
Personal assets (property only)	$271,107	$408,840
Net Business assets	($2,894)	($32,354)
Total business and personal assets combined	$268,213	$405,946

1. Based on the information presented on review, the Tribunal finds that the applicant satisfies the requirements in cl.892.212(b)(i) and (ii). There is nothing before the Tribunal which would indicate that these assets had not been lawfully acquired by the applicant and his spouse. The letter from the solicitor supports a view that it was a standard conveyance of a property purchase. The Tribunal finds that cl.892.212(b)(iii) is met, and that cl.892.212(b) is satisfied.

2. If an applicant satisfies the requirements in cl.892.212(b), then cl.892.221(b) must also be satisfied. Clause 892.221(b) requires that the applicant continues to meet those requirements at the time of decision.

3. The Tribunal has not calculated the total business and personal assets combined as at the date of this decision as the figures presented for net business assets were “assumed for the sake of the[se] submissions”. And, furthermore, the issue in dispute is whether the time of application criterion is met. It thus has not considered whether the criterion continues to be met.

4. In regards to cl.892.212(a), it was submitted that the nominated business employed two Australian citizens in the 12-month period prior to the application, and that this was

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equivalent to at least one full-time position. Details of the two employees have been provided, being Mr Danny Low, who it is submitted commenced full-time employment on 3 January 2012 and Mr Mohamed Ismail, who commenced part-time employment on 6 September 2013. Evidence has been provided that both continue to be employed by the business. The Tribunal was presented a summary of the wages paid for financial years 2013/14 to 2017/18, which indicate that Mr Low’s gross salary was $26,500 and Mr Ismail’s salary was $11,700 on commencement, increasing to $15,600 over that period. This reflects the PAYG records and superannuation documents provided.

1. The Tribunal had some concerns about the nature of Mr Low’s employment given the low salary of $26,500 for the claimed full-time work of 30 to 40 hours per week. The Tribunal had also had regard to the ASIC documents for the business and noted that Mr Low is a director of the business, and has been an officeholder since 2004. It also noted that the registered office address of the nominating business is Mr Low’s residential address. It is possible that the amount paid to him are fees as a director rather than wages for employment. However, having considered the additional documentation provided on 26 July 2019, the Tribunal is prepared to accept that he was employed full time during the 12 months prior to the visa application being made. These additional documents include a statutory declaration of Mr Low’s dated 25 July 2019 outlining his roles and responsibilities as an employee during this time to date, and a detailed outline of his contributions to the community to demonstrate his honesty. In this regard, the Tribunal notes that he has many years of service to Rotary International which was recognised by the Australian Government in 2016 with the award of an Order of Australia Medal. The Tribunal has also taken into account the letter from the external accountant, Genesis, confirming Mr Low’s employment and refers to income Mr Low receives from other sources. The Tribunal accepts that he is an Australian citizen on the basis of his Australian citizenship certificate. Based on the claim that his employment is full-time, the requirement in cl.892.212(a) would be met. The business has also provided evidence that it employs Mr Ismail on a part-time basis. The Tribunal accepts that he too is an Australian citizen on the basis of his Australian citizenship certificate.

2. The Tribunal thus finds that the business provided employees who are Australian citizens with a total number of hours of employment at least equivalent to the total number of hours that would have been worked by 1 full-time employee over the 12 month period ending immediately before the application is made. The Tribunal further finds that these employees were not the applicant or a member of his family unit. On the information provided, the Tribunal finds that cl.892.212(a) is satisfied.

3. As the requirements of cl.892.212(a) and (b) are met, the Tribunal is satisfied that cl.892.212 is met. The appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

   DECISION

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

• cl.892.212 of Schedule 2 to the Regulations.

  Wan Shum
  Member

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