Business Skills Visas: Getting Your Structure Right
Munro Doig was recently successful in the Administrative Appeals Tribunal (Migration and Refugee Division) in overturning the refusal of a Subclass 892 Business Skills visa.
Our client had originally lodged his Subclass 892 visa application in November 2015 and relied on a cleaning business which he had established shortly after he had arrived in Australia. However, in the two year period leading up to the lodgment of the application, the client restructured his business entity from a sole proprietorship, to a partnership and finally to a proprietary limited company.
Unfortunately, when lodging the application, our client (under the guidance of his former migration agent) completed a Form 1217, which on its face nominated just the company as his “main business”.
Whilst the client had provided materials in relation to all three entities in the application, the Immigration Department’s case officer took the view that only the business conducted in the company had been nominated and therefore ignored the rest of the materials pertaining to the sole proprietorship and the partnership.
On appeal to the AAT, much turned on technicalities.
We submitted that the cleaning business conducted by the sole proprietorship, the partnership and the company were in fact one and the same business albeit carried on by different entities at various points in time. Alternatively, the decision maker was not bound by what was contained in Form 1217 in that the fact that the applicant had provided materials for the businesses conducted in the various entities was itself a nomination of those “businesses”.
The Tribunal agreed.
The Tribunal found that the applicant operated the same business through three consecutive legal entities and that this should be considered his “main business” notwithstanding that there were different entities operating at different periods. The Tribunal also found that the fact that the applicant had only listed the company in Form 1217 was not fatal because the Form was just a starting point for a decision maker to determine what the applicant’s main business was, but was not, in and of itself, determinative.
The Tribunal’s decision was welcome relief to our client who had sold up his overseas assets and invested not only his financial resources but also his time and energy into building a business in Australia which continues to employ Australians.
Comment
- Business visa applications are often complex. Whilst the Tribunal had applied the correct law, the original decision maker in the Department felt bound by Form 1217. It is important in preparing a business skills application that forms are completely correctly (in the way required by the Immigration Department) and that materials are properly cross referenced;
- Many applicants after receiving their first stage business visa, often fail to take advice about what sort of business they should conduct to qualify for permanent residency. Further, they fail to obtain advice as to how their business should be structured. Business structuring is critical not only for asset protection and tax efficiency, but migration law can be unforgiving if the business entity is not correctly structured.
Munro Doig is able to assist clients not only in migration law, but also in business and taxation law.
If we can assist in any way, please do not hesitate to contact Lester Ong.
