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0803380 [2009] MRTA  2435  (9 November 2009)

Last Updated: 17 November 2009

0803380  [2009] MRTA 2435  (9 November 2009)


DECISION RECORD

APPLICANTS: Mr Jaswindar Singh H Mohan Singh
Mrs Kooi Hiang Tan
Mr Satnam Gabriel Singh Jaswindar Singh
Mr Harprith Jamie Singh Jaswindar Singh
Ms Shereen Candice Kaur Jaswindar Singh

MRT CASE NUMBER: 0803380

DIAC REFERENCE(S): CLF2008/83684; CLF2008/90365; T03/1E38

TRIBUNAL MEMBER: Richard Derewlany

DATE: 9 November 2009

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.


STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
  2. The applicants applied to the Department of Immigration and Citizenship for Temporary Business Entry (Class UC) visas on 10 October 2007. The delegate decided to refuse to grant the visas on 14 May 2008 and notified the applicants of the decisions and their review rights by letter dated 14 May 2008.
  3. The delegate refused to grant the visas on the basis that the first named applicant did not satisfy cl.457.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the first named applicant did not satisfy the requirements of cl.457.223(7A) or any of the alternative provisions.
  4. The applicants applied to the Tribunal on 2 June 2008 for review of the delegate’s decisions.
  5. The Tribunal finds that the delegate’s decisions are MRT-reviewable decisions under s.338(2) of the Act. The Tribunal finds that the applicants have made a valid application for review under s.347 of the Act.

RELEVANT LAW

  1. The Temporary Business Entry (Class UC) visa permits non-citizens with skills needed by Australian businesses to enter and work temporarily in Australia. Class UC contains two subclasses, Subclass 456 (Business (Short stay)) and Subclass 457 (Business (Long stay)). Subclass 456 visas permit stays of up to 3 months. Subclass 457 visas permit stays of not more than 4 years, and in the case of an Independent Executive proposing to maintain an ownership interest of a business in Australia, a further stay of 2 years is permitted. The Tribunal does not have jurisdiction in relation to a decision to refuse a Subclass 456 visa.
  2. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
  3. One of the primary criteria to be satisfied at time of decision is cl.457.223. Only one of the alternative requirements in cl.457.223 must be satisfied. These are:
  4. The applicant in the present case has made specific claims against cl.457.223(7A). No claims have been made in respect of the other alternative sub criteria to cl.457.223.
  5. Clause 457.223 was substantially amended on 14 September 2009, for all visa applications not finally determined before that date, and applications made on or after that date: Migration Amendment Regulations 2009 (No.9), r.3(6). Clause 457.223(7A), as it applies in the present case, provides:

(7A) The applicant meets the requirements of this subclause if:

(a) either:

(i) the applicant holds a Subclass 457 visa granted on the basis that:

(A) the applicant met the requirements of subclause (7) as in force immediately before 14 September 2009; or

(B) the applicant met the requirements of Subdivision 457.32 as the spouse or de facto partner of a person who held a Subclass 457 visa granted on the basis that he or she met the requirements of subclause (7) as in force immediately before 14 September 2009; or

(ii) the applicant does not hold a substantive visa, and the last substantive visa held by the applicant was of a kind mentioned in subparagraph (i); and

(b) on the day on which the application is made:

(i) the applicant had been conducting the business in Australia as a principal for at least 15 months; or

(ii) if the applicant had been conducting the business in Australia as a principal for less than 15 months — a government of a State or Territory had endorsed the business as beneficial to the State or Territory; and

(c) the Minister is satisfied that:

(i) the business is of benefit to Australia; and

(ii) the applicant has a genuine and realistic commitment:

(A) to maintain an ownership interest in the business; and

(B) to maintain a direct and continuous involvement in the management of the business; and

(C) to make decisions that affect the overall direction and performance of the business from day to day; and

(iii) either:

(A) there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or

(B) it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and

(iv) the applicant has net assets of:

(A) not less than AUD250,000; or

(B) a lesser amount that is adequate;

to conduct the business; and

(v) the applicant has demonstrated that there is need for the applicant to be temporarily resident in Australia to conduct the business.

  1. Relevantly to the review, cl.457.111(2) specifies that a business is of ‘benefit to Australia’ if:
• the conduct of the activity contributes to:
• the operator of the business:
  1. In the present case, the visa application was refused on the basis that the first named applicant did not meet cl.457.223(7A) as in force before 14 September 2009. However, as noted above, this application must be determined by reference to cl.457.223(7A) as now in force

CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Department’s files relating to the applicants. The visa application indicated that the first named applicant’s business in Australia on which the application was based, was Jathniel Jaswindar Pty Ltd (JJPL). Evidence provided to the Department included:
  2. In response to a request from the Department for further information, the first named applicant submitted a letter in January 2008 in which he stated, among other things:
• the creation or maintenance of employment for Australian citizens
• Australian permanent residents: or
• expansion of Australian trade in goods or services: or
• the improvement of Australian business links with international markets; or
• competitiveness within sectors of the Australian economy.
  1. The delegate refused to grant the visas as she was not satisfied that the first named applicant’s business was of benefit to Australia and also was not satisfied he had demonstrated he had net assets of at least AUD250,000.
  2. On 21 August 2009 the Tribunal sent a letter to the applicants inviting them to provide information in writing. The invitation was for information setting out the business activities of JJPL in the period from at least July 2006 to the date of application; financial information in respect of JJPL; BAS statements for the business; information to show how JJPL was of benefit to Australia; information regarding employees of the business; information to establish that the first named applicant (and spouse) had net assets of at least AUD250,000 to conduct the business, or a lesser amount they considered adequate to conduct the business.
  3. The Tribunal received a submission from the applicants’ then migration agent dated 11 September 2009 in which she stated the first and second named applicants had advised they were unable to provide the Tribunal with the information requested because they were not conducting the business JJPL in Australia, and had not done so in the period specified in the Tribunal’s letter; there were therefore no financial statements and no BAS statements that could be provided. In addition, they could not show that there was any benefit to Australia from JJPL, and they did not have the required assets and were not conducting any business in Australia The submission indicated that the family had met with some misfoirtune early in their time in Australia, that the first named applicant was driving a taxi, his wife was working in child care, and that the children were studying.
  4. The first and second named applicants appeared before the Tribunal on 4 November 2009 to give evidence and present arguments. The Tribunal explained the issue in the review and indicated that the submission received in September 2009 in response to the Tribunal’s letter dated 21 August 2009 indicated that crucial requirements of the Independent Executive provisions in cl.457.223(7A) could not be met.
  5. The first named applicant told the Tribunal that he could not satisfy the requirements in respect of JJPL because there was not much ‘turnover’ in the business, and he had been looking at other areas. He was currently concentrating on was the ‘cab’ business, as he had been driving a taxi in Canberra for about 16 months, and had been driving a Silver Service taxi from the beginning of this year. He had recently negotiated with a friend to go into a partnership for a taxi for about 6 months (in which he would hold a 75% share), after which the first named applicant would take over the operation completely. The Tribunal explained that this did not appear to relate to the business conducted by JJPL. The first named applicant stated he had been advised by his accountant not to put the taxi operations under JJPL and was advised to register as a sole trader, and that he could put the taxi operations under JJPL in the future when he actually owned his own taxi.
  6. The Tribunal explained again that it did not appear to satisfy the criteria in relation to the Independent Executive provisions in relation to JJPL, which is the business on which the first named applicant was initially granted the Independent Executive visa. The Tribunal explained the various requirements of cl.457.223(7A) and indicated that the future plans in relation to the taxi operation did not appear to satisfy the requirements of the criterion. The Tribunal referred again to the submission received in September 2009 in which the first named applicant acknowledged he could not provide the evidence to satisfy the requirements of the criterion.
  7. The Tribunal also explained that there did not appear to be any evidence that the applicants could satisfy the requirements of any of the alternative provisions in cl.457.223
  8. The first named applicant asked to make a statement, and told the Tribunal that he and his family had been in Australia for approximately 6 years and had not been a burden on the community. They had been engaged in work and business, and the children had undertaken study for which international student fees had been paid. The second named applicant had gained a Diploma (Level 4) in Child Care Services. The Tribunal explained that while it accepted this, it did not appear to assist in meeting the requirements of the relevant criterion.

FINDINGS AND REASONS

  1. The Tribunal is satisfied that the relevant business for consideration of whether the first named applicant satisfies cl.457.223(7A) is JJPL, as that is the business identified in the visa application as the business in Australia on which basis the applicants were originally granted their subclass 457 visas.
  2. The Tribunal finds on the first named applicant’s own evidence, set out in submissions to the Tribunal dated 11 September 2009, that he has not been conducting the business JJPL in Australia as a principal for at least the period of 15 months prior to the date of the visa application. At the hearing the first named applicant indicated there was not much ‘turnover’ in the business, however the Tribunal is not satisfied that the first named applicant has demonstrated that he conducted the business throughout the relevant period indicated above, and indeed his evidence in submissions to the Tribunal is that he had not been conducting the business JJPL during the relevant period and was not currently conducting it. There is also no evidence that a government of a State or Territory had endorsed the business as beneficial to the State or Territory. The Tribunal therefore is not satisfied that the first named applicant meets cl.457.223(7A)(b).
  3. The Tribunal invited the applicants to provide information as to how the business JJPL was of benefit to Australia. Their own evidence in the submission received in September 2009 is that they could not show that the business of JJPL is of benefit to Australia as they were not conducting the business. The Tribunal is not satisfied that they have demonstrated that the conduct of the business JJPL contributes to the creation or maintenance of employment for Australian citizens or permanent residents; or the expansion of Australian trade in goods or services; or improvement of Australian business links with international markets; or competitiveness within sectors of the Australian economy. The Tribunal thus is not satisfied that the business JJPL is of ‘benefit to Australia’, as that term is defined in cl.457.111(2). The Tribunal thus finds that the first named applicant does not satisfy cl.457.223(7A)(c)(i).
  4. Given the findings above it is not necessary for the Tribunal to determine the criterion in cl.457.223(c)(iv) relating to net assets, though the Tribunal notes that the applicants have acknowledged in their submission to the Tribunal that they do not have the required net assets.
  5. The Tribunal accordingly finds that the first named applicant does not satisfy cl.457.223(7A). The Tribunal has considered the evidence of the first named applicant’s future plans in respect of a taxi business, but is not satisfied that these plans establish that he meets the requirements of cl.457.223(7A) at the time of the Tribunal’s decision.
  6. No claims have been made in respect of other sub criteria in cl.457.223, however, the Tribunal has considered the other grounds as part of its determination of whether the applicant satisfies cl.457.223. There is no evidence that the first named applicant would be able to satisfy criteria in those clauses. This is because: there is no evidence of a Labour Agreement for the purposes of cl.457.223(2); there is no evidence that the first named applicant has specified a business activity or occupation in the visa application that is the subject of an approved nomination, and so does not meet the requirements of cl.457.223(4); there is no evidence that the first named applicant is a service seller or a person accorded diplomatic privileges, and thus cannot satisfy cl.457.223(8) or cl.457.223(9) respectively; and there is no IASS agreement so the first named applicant cannot satisfy cl.457.223(10). As such, the first named applicant does not meet cl.457.223. There is also no evidence that any other applicants are able to satisfy the criteria in cl.457.223.
  7. The Tribunal has considered the first named applicant’s statement at the hearing regarding the period of time he and his family have resided in Australia and the steps they have taken to be employed and to undertake education. The Tribunal accepts this is the case but considers these factors do not assist the first named applicant or any other applicant to satisfy the requirements of cl.4567.223.
  8. As the Tribunal has found that the first named applicant does not satisfy cl.457.223, the Tribunal accordingly finds that the other applicants do not satisfy relevant secondary criteria in cl.457.321, as they are not the members of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 457 visa.

CONCLUSIONS

  1. Given the findings made above, the Tribunal must affirm the decisions under review.

DECISION

  1. The Tribunal affirms the decisions not to grant the applicants Temporary Business Entry (Class UC) visas.

Richard Derewlany
Member


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