Dai, Ya Jun [2003] MRTA 2011 (31 March 2003)

DECISION: The Tribunal affirms the decisions under review, finding that the visa applicants are not entitled to the grant of Business Skills (Residence) (Class BH) visas.

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Multicultural Affairs (the delegate). Ya Jun DAI (the visa applicant), a male national of the People's Republic of China, born on 20 October 1953, applied for a Business Skills (Residence) (Class BH) visa on 12 March 1999 (D1, f.113-131). Included in the application were his wife Ai Ping YIN, born on 25 August 1955, and his son Ce DAI, born on 27 March 1984. The delegate's decision to refuse to grant the visas was made on 25 July 2001 (D1, f.45-51).

2. The visa applicants lodged a valid application for review to the Tribunal on 6 August 2001 (T1, f.2-9). The decision is reviewable by the Tribunal and the application for review has been properly made and combined at application by persons with standing to apply for review.

3. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

4. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

5. Regulation 1.07 prescribes that, to be granted a visa, a person must meet all the prescribed criteria for a subclass of visa as prescribed in the part of Schedule 2 which bears the number of the subclass. Applicants for a class or classes of visa must satisfy all the requirements relating to that class as set out in the Migration Act and regulations before the visa applied for could be granted. When an applicant fails to meet any one of the criteria for the grant of that visa the visa cannot be granted and the visa must be refused. The applicant must be considered against the criteria for all of the subclasses included in the class of visa applied for.

6. The criteria and policy immediately relevant to this review are:

Part 845 of Schedule 2

Procedures Advice Manual 3 (PAM3), Generic Guidelines K, Business Skills visas

PAM 3, Schedule 2 - Established Business in Australia - visa 845

7. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

D1 - Departmental case file N99/111182, folio numbered 1-263.

D2 - Departmental case file CLF2001/10068, folio numbered 1-63.

9. The visa applicant first entered Australia on 5 October 1996 on a Temporary Business Entry (Class UC) visa, subclass 456 (Business (Short Stay)) that was valid for stay until 5 January 1997. He departed Australia on 19 October 1996, and he returned on 22 March 1997 on a Temporary Business Entry (Class UC) visa, subclass 457 (Business (Long Stay) that was valid for stay until 20 February 2001. Whilst on his subclass 457 visa he made several trips out of Australia.

10. On 12 March 1999 the visa applicant lodged an application for a subclass 845 visa on the basis that he had an ownership interest and was involved in the management of two qualifying businesses, namely Ausaccord Pty Ltd and Ya Dan Li Pty Ltd. He provided documents relating to himself and his family, Bank of China term deposit certificates in his name, and details of his personal net assets. He stated that he had been involved in Ausaccord Pty Ltd since 3 October 1997 as a Managing Director, and that he had a 78.8% ownership interest in the business. He provided a number of documents in relation to the business, including details of his employees and wage record sheets, residency status of the employees, a financial statement for the period 31 December 1998, a profile of the business, and a business registration certificate.

11. The visa applicant stated that he had been involved in Ya Dan Li Pty Ltd since 25 October 1996 as a Managing Director, and that he had a 35% ownership interest in the business. He provided a number of documents in relation to the business, including a business registration certificate, a copy of the Memorandum and Articles of Association, and a financial statement for the year ended 31 December 1998.

12. In response to a request from the delegate, on 7 September 1999 the visa applicant's migration agent submitted additional information. On 22 January 2001 the delegate asked the visa applicant to provide further information, including evidence of the equivalent of three full-time employees for the 12 months preceding the application, and details of loans to each business.

13. The application was refused on 25 July 2001 because the delegate was not satisfied that the nominated businesses employed at least three full-time (or equivalent) employees who were Australian citizens or permanent residents, so the visa applicant was unable to meet the requirements of Division 1.4 of Schedule 7 to the Regulations in relation to the business skills points test. Consequently the visa applicant failed to satisfy clause 845.222 at the time of decision. On 6 August 2001 the visa applicants sought review of the decision.

14. According to international movement records maintained by the Department, the visa applicant departed Australia on 24 April 2002, and he had not returned by the time of preparation of this Statement of Decision and Reasons.

15. A search of the Australian Securities and Investments Commission (ASIC) database on 4 November 2002 revealed that an application for voluntary deregistration of Ya Dan Li Pty Ltd was lodged with ASIC on 4 September 2001, and it had subsequently been deregistered.

16. On 12 November 2002 the Tribunal sent a letter to the visa applicant's address for service asking him under section 359(2) of the Act to provide by 18 December 2002 further information, including wages records and group certificates for all employees of Ausaccord Pty Ltd for the period from 1 July 1998 to 30 June 1999, together with evidence of their migration status. The Tribunal also invited the visa applicant under section 359A of the Act to comment by the same date on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review, namely that Ya Dan Li Pty Ltd was deregistered on 4 September 2001.

17. As the visa applicant has not responded to the invitations within the specified time, and as the application for review appeared to have little prospect of success, the Tribunal has decided to make a decision on the review under sections 359C(1) and 359C(2) of the Act without taking any further action to obtain the additional information or comments and without holding a hearing.

18. At the time the visa application was lodged, Business Skills (Residence) (Class BH) contained the following subclasses: 840 (Business Owner), 841 (Senior Executive), 842 (State/Territory Sponsored Business Owner), 843 (State/Territory Sponsored Senior Executive), 844 (Investment-Linked), 845 (Established Business in Australia) and 846 (State/Territory Sponsored Regional Established Business in Australia). The only subclass in respect of which any claims have been advanced is subclass 845 (Established Business in Australia). There is no evidence to suggest that the visa applicants meet key criteria for any of the other subclasses.

19. In order to succeed in an application for a visa under the Regulations, it is necessary for an applicant to satisfy all of the criteria for the grant of a visa. The criteria for a subclass 845 visa are contained in Part 845 of Schedule 2 to the Regulations. Clause 845.222 provides that at the time of decision :

(1) The applicant's score on the business skills points test is not less than the number of points that is specified for the purposes of this subclause by Gazette Notice.

(a) an applicant's score on the business skills points test is the sum of the applicant's scores under:

(ii) Parts 2, 3 and 4 of that Schedule; and

(b) an applicant's score under a Subdivision or Part of Schedule 7 is the number of points specified in that Subdivision or Part in relation to the attribute described in the Subdivision or Part that relates to the applicant:

(i) in the case of an attribute specified in Division 1.3 of Schedule 7 - at the time when the application is decided; and

(ii) in the case of any other attribute - at the time when the application is made;

and if there is more than 1 attribute of either of those kinds, the highest single number of points so specified; and

(c) in determining the score of an applicant under Part 4 of Schedule 7, only:

(ii) assets available for transfer, and capable of being transferred, to Australia

within 2 years of grant of a business skills visa to the applicant;

20. Gazette Notice S238, 27 June 1997, Points Scores - Business Skills Test stipulates that the number of points for the `business skills points test' (as defined by regulation 1.03 of the Regulations) is 105 points. The applicant's score against the business skills point test must therefore not be less than 105 points.

21. To score 60 points under Item 7170 of Division 1.4 of Schedule 7, throughout the period of 12 months immediately preceding the making of the application the visa applicant's main business or businesses must have:

(a) employed not less than 3 full time employees (or a number of part time employees working an equivalent number of hours) each of whom:

(i) is not the applicant or a member of a family unit of the applicant; and

(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(i) had a turnover of not less than AUD 200,000; or

(ii) exported goods or services of a value not less than AUD 100,000

22. PAM3 guidelines define "full-time employees" as follows :

1. It is policy that this be regarded as referring to employees who normally work the agreed or award hours for employees in that occupation and/or in that country. Where agreed/award hours do not apply, it is policy that "full-time" is to be regarded as meaning "not less than 30 hours a week".

2. Pro-rata equivalent of the prescribed number of employees may be accepted for periods of less than a full fiscal year. For example, ten (full-time) workers employed for six months may be considered equivalent to five (full-time) workers employed for a full fiscal year. (Note that paid holidays may be counted as employment.)

3. Full-time may also include, for example, positions subject to part-time and/or job-sharing arrangements provided the position is a discrete, identified job and the total number of hours worked by occupants in that position is at least 30 hours a week.

23. PAM3 further states that employees could include Directors of the business if

`they receive a wage, salary, commission or fee (i.e. as opposed to a dividend or director's fee) for their (full-time) work there'.

24. To score 60 points under Item 7170 of Division 1.4 of Schedule 7, the visa applicant must demonstrate that from 12 March 1998 to 12 March 1999 there were at least 3 full-time employees in the businesses who were not members of the visa applicant's family unit. Unless the visa applicant receives a score of at least 60 points under Division 1.4, it will not be possible for him to achieve the pass mark of 105 points.

25. As evidence of the 3 full-time employees, the visa applicant submitted wage summary records for the period 1 December 1997 to 11 January 1999 (D1, f. 22-54). Aside from this information, no evidence of wages records from 18 January 1999 to 12 March 1999 or group certificates for the periods 1 July 1997 to 30 June 1998 and 1 July 1998 to 30 June 1999 have been provided. Consequently the Tribunal is unable to find that the visa applicant is entitled to 60 points under 7170, so he does not satisfy clause 845.222.

26. As the visa applicant does not meet the criteria for the grant of a Business Skills (Residence) (Class BH) visa, his wife and son also fail to meet clause 845.222.

27. The Tribunal concludes that the visa applicants do not meet the requirements for the grant of the visa sought in their application.

28. The Tribunal affirms the decisions under review, finding that the visa applicants are not entitled to the grant of Business Skills (Residence) (Class BH) visas.