Akhavannejad (Migration)
[2019] AATA 2223
•14 February 2019
Akhavannejad (Migration) [2019] AATA 2223 (14 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Alireza AKHAVANNEJAD
Mrs Ladan DEJDANI
Mr Shayan AKHAVANNEJADCASE NUMBER: 1701650
DIBP REFERENCE(S): BCC2014/3073620 BCC2015/1022179
MEMBER:Alison Mercer
DATE:14 February 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for Class EB subclass 188 (Business Skills) (Provisional) visas in the Business Innovation stream for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 188 visa:
· cl.188.222 of Schedule 2 to the Regulations.
Statement made on 14 February 2019 at 5:45pm
CATCHWORDS
MIGRATION – Business Skills (Provisional) visa – Subclass 188 Business Innovation and Investment (Provisional) visa – Business Innovation stream – business innovation and investment points test – minimum 65 points required – further evidence provided – entitled to 35 points for financial assets – entitled to 70 points overall – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 188.222, Schedule 7ASTATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 January 2017 to refuse to grant the visa applicants Business Skills (Provisional) subclass 188 visas in the Business Innovation stream under s.65 of the Migration Act 1958 (the Act).
The applicants were invited to apply for the visas on 11 November 2014 and applied for the visas on 17 November 2014. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy cl.188.222, which required that his score on the business innovation and investment points test was not less than the number specified by the Minister in a written instrument for that purpose. The delegate noted that the current minimum points required was 65 points, but found that the applicant was only entitled to 50 points, on the following basis:
· 7A.2 – Age 15 points (aged 49 at time of invitation to apply)
· 7A3 – English language 0 points (no evidence provided)
· 7A4 – Educational 0 points (no evidence provided of qualifications)
· 7A5 – Business Experience 15 points (7/8 years before invitation to apply)
· 7A7 – Financial Assets 15 points (less than $1.8 million in last 2 fiscal years)
· 7A8 – Business Turnover 5 points (not more than $1 million in last 2/4 fiscal years)
· 7A9 – Business Innovation 0 points (insufficient evidence provided)
· 7A10 – Special Endorsement 0 points (no evidence provided)
· TOTAL: 50 points
As a result, the delegate found that the applicant did not meet the criteria to be granted a subclass 188 visa. She also refused to grant subclass 188 visas to the second and third named applicants (the applicant’s wife and son) on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who satisfied the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.
The Tribunal received a review application from the applicants on 31 January 2017. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Sam Jazayeri, as their representative and authorised recipient for correspondence.
On 27 June 2017, the Tribunal received a submission from the applicants’ agent requesting priority processing on the following basis:
·the visa application was initially refused by the Department, then successful upon appeal to the Tribunal, which remitted it back to the Department. It was then refused again. That refusal was presently before the Tribunal;
·one of the main requirements of this application was the applicant’s direct involvement in the day to day management of the business, but he had now been away from his business in his country of origin for some time, and not able to focus on it: this might result in the business suffering from a lack of supervision and/or unsustainable results;
·this might impose unnecessary pressure on its staff in Iran;
·the applicant brought $200,000 into Australia and is awaiting confirmation of being able to establish a business here;
·one of the visa requirements is that the applicant should enter into a joint venture or agreement or take initial steps to set up a business. The applicant was awaiting a decision on his visa before opening his proposed business, ‘Surfgrill’, in relation to which it was intended that it would employ a number of Australians employed on a full time basis. Steps had already been taken towards this;
·the applicant was willing to purchase property should his visa be granted, but at the moment he did not know whether he should commit to such an investment;
·the applicants were currently uncertain regarding their future, both short and long term and found it hard to see a clear direction given their unresolved visa status; and
·the applicant required certainty regarding whether to prepare to transfer his business assets to Australia.
On 29 June 2017, the Tribunal decided to grant priority processing to the applicants.
On 22 September 2017, the Tribunal received a submission with accompanying documents from the applicant’s agent. He made the following points (in summary) in his submission:
·the applicant did not dispute the allocation of points to him in the Schedule 7A Points Test for age (15 points), business experience (at least 7 years – 15 points) or business turnover (at least $500,000 per annum – 5 points) (35 points in total);
·however, the applicant and agent believed that the applicant should be allocated additional points for his educational qualifications and his financial assets;
·in relation to his educational qualifications, a certified, translated copy of the applicant’s Diploma of Associate’s Degree Course Completion; Field of Study: Machine Tool, dated 6 April 2011, was provided. It was contended that the applicant should be entitled to 5 points for this qualification;
·in relation to his financial assets, certified and translated copies of Expert Reports of the applicant’s site and standing property dated 10 January 2013 and 6 June 2014 were provide. The Tribunal’s attention was drawn to the section which stipulated that these specific substrata of the applicant’s financial assets were valued at 66,000,000,000 Rials in 2013 and 73,900,000,000 Rials in 2014. In accordance with currency exchange rates, these figures were equivalent to AUD $2,466,319 in 2013 and AUD $2,761,530.52 in 2014;
·consequently, the applicant should be entitled to 35 points for this factor; and
·therefore, the applicant should in fact be entitled to 75 points in total for the Schedule 7A Points Test, which exceeded the pass mark of 65, and the matter should be remitted back to the Department on this basis.
The accompanying documents included the following:
·Expertise Licence for Mr Hossein Akhgar, for field of civil evaluation of constructional expenses, appraisal of residential buildings and determination of loss quantity (in Persian, with certified English translation);
·Expert Report prepared by Mr Hossein Akhgar, dated 10 January 2013 for the applicant (in Persian, with certified English translation);
·Expert Report prepared by Mr Hossein Akhgar, dated 2 June 2014 for the applicant (in Persian, with certified English translation);
·Google conversion rates between AUD and Iranian Rial between 2013 and 2017;
·Power of Attorney dated 17 June 2002 by which a number of named parties appointed the applicant as their attorney (in Persian, with certified English translation);
·Diploma of Associate’s Degree Course Completion; Field of Study: Machine Tool, awarded to the applicant by the Technical Institute of Tabriz on 6 April 2011 (in Persian, with certified English translation);
·Tax payment slip issued 20 January 2010 to the applicant and partner for a property transfer, issued by General Department of Finance (in Persian, with certified English translation); and
·Construction certificate, issued 28 December 2013 to the applicant (in Persian, with certified English translation).
The matter was constituted to a Tribunal Member on 7 December 2017.
On 22 February 2018, the Tribunal was advised that the applicants had appointed a new migration agent, Mr Alireza Amiri, as their representative and authorised recipient for correspondence.
On 28 February 2018, the Tribunal received a submission and accompanying documents from the applicants’ new agent. In summary, the agent made the following points:
·the delegate’s findings that the applicant was entitled to 35 points under the Schedule 7A Points Test for his age, business experience and business turnover was not disputed;
·however, it was strongly submitted that the applicant was entitled to a further 35 points for his financial assets under part 7A.7, on the basis that his (or his spouse, or his and his spouse’s) net value of business and personal assets was not less than AUD $2,250,000 in each of the 2 fiscal years immediately before the time that the applicants were invited to apply for the visas;
·the applicant met this, and an Expert Report (a valuation report provided by an official expert of the Judiciary of the Islamic Republic of Iran) was provided in relation to the applicant’s site and standing property (registered plate no. 88/98575) dated 2 June 2014, which had been in the applicant’s full possession prior to 27 August 2012; namely, more than 2 fiscal years before he was invited to apply for the visa;
·the above mentioned valuation stipulated that these specific substrata of the applicant’s financial assets were valued at IRR 73,900,000,000 in 2014. In accordance with exchange rates published by the Central Bank of Iran on the issue dates of the appraisal report, this was equivalent to AUD $3,117,485.76 as at 2 June 2014;
·alternatively, according to the ONANDA currency conversion website (approved in the Department’s Procedures Advice Manual, or PAM3), the same figure was equivalent to AUD $3,096,160 on 2 June 2014;
·in either case, the applicant was entitled to 35 points for his financial assets under part 7A.4 of Schedule 7A; and
·as a result, he was entitled to 70 points overall and thus exceeded the pass mark for the Points Test. This in turn meant he satisfied cl.188.222 and the case should be remitted to the Department on that basis.
On 4 December 2018, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 15 January 2019. They were asked to provide any further written submissions and/or documents in support of their case 1 week prior to the hearing.
On 5 December 2018, the applicants’ agent sent a hearing response indicating that he and the applicants would attend the hearing.
The applicants appeared before the Tribunal on 15 January 2019 to give evidence and present arguments. The applicants’ agent also attended and made legal submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.
The applicant told the Tribunal that he decided to make the subclass 188 visa application after visiting his children, who were studying in Australia. He said that he had been in the construction business in Iran for over 20 years at that time, mostly residential apartments but some commercial properties. Some projects were undertaken with business partners (such as property developers) and others he undertook by himself with his company. The applicant said that he saw himself as a businessman and a job creator, and felt that he could use these skills to create good opportunities for himself and his family in Australia. However, the enforced inactivity caused by his unresolved visa status had been difficult for him. Nevertheless, he had established 2 businesses in Australia since arriving. One was a burger café/restaurant in Brighton called the Surf Grill, and the other was a commercial painting business which had several property developers/builders as clients. He managed both businesses, and his sons worked at the Surf Grill. In response to the Tribunal’s query, the applicant said that he had to close his Iranian business about 2 years ago, as it was too difficult to keep it going from Australia and it was impractical for him to travel regularly back to Iran to keep it going.
The Tribunal asked the applicant about the circumstances in which he made the subclass 188 visa application. The applicant said that his son Shayan assisted him. Shayan was studying in Australia and found a Persian-speaking migration agent on the internet. This agent was based in Brisbane and Shayan was based in Melbourne, so they mainly communicated by email and telephone. The applicant said that his son would speak with the agent and then tell the applicant what documents and/or information was needed. The applicant then gathered the relevant material and had it translated into English, them emailed scanned copies to his son, who passed them on to the agent. This included things like property valuations, his company’s financial reports and other documents to do with his Iranian business.
The Tribunal noted that in the Expression of Interest (EOI) summary and the subclass 188 visa application on the Department’s file, in the parts related to the net value of the applicant and his spouse’s assets, they were listed as being worth between AUD $1.5 million and $1,799,999. It further noted that in another part of the visa application form, the net worth of their assets was estimated at AUD $1,990,776. The Tribunal asked the applicant if he could remember what these estimates and figures were based on. The applicant said that he could not. He did not complete the EOI summary or the visa application form, as he relied on the agent to do so on his behalf. He said that he assumed that the agent would have used the property valuation that the applicant provided to him for a block of apartments and land that he owned in Tehran. He had obtained an official valuation for that property from a valuer at the Iranian Ministry of Justice in June 2014 and had provided it, together with a certified English translation, to his son, who provided it to the agent. As far as he understood, the value of this property met the requirements that the agent had said needed to be met. In response to the Tribunal’s query, the applicant explained the process by which an official valuation was obtained in Iran. He stated that an official valuer could just value property/real estate, or could take into account other assets, such as shares or bank deposits: the scope of the valuation depended on what the person requesting it wanted it to cover. In his case, he understood that the value of his property alone would meet the net assets requirement so he did not ask the valuer to take any other assets into account, such as the goodwill in his business or any equipment. He just relied on the value of his apartment block and land. The applicant said that he still owns this, and derives rental income from it.
The Tribunal noted that the Iranian property valuation dated 2 June 2014, appeared to show that the net value of that property owned by the applicant in Tehran was 73,900,000,000 rials, and that (depending on the currency conversion website used) this was worth over AUD $3,000,000 at the time that the valuation was obtained. It also noted that this valuation appeared to have been submitted by the former agent with the visa application, yet a different – and lower – net asset value was used in the EOI summary and the visa application form. The applicant said that he could only assume that this was due to a mistake, or misunderstanding of the documents, by the former agent.
The applicants’ agent submitted that his instructions were that it appeared that the former agent was negligent in his advice to the applicants, and in what he prepared and submitted to the Department. He stated that the former agent had not properly explained concepts like a ‘joint venture’ to the applicants (but appeared to assume that they would be allocated points for this factor in the Business Skills Points test) and/or had incorrectly calculated the applicant’s net assets. He might have also overlooked the 2 June 2014 valuation.
The applicant said that the former agent told him and his son that the visa application was a simple one and that they clearly met the Business Skills Test requirements so they were shocked and dismayed when the visa application was rejected. As a result, they changed migration agents to their present agent. They had also lodged a complaint with the Migration Agents Registration Authority (MARA) about their former agent, but this had not yet been resolved. The applicant further stated that he trusted his former agent to handle the matter professionally and to advise him properly, but this had not occurred. He noted that nevertheless, he had transferred more than the minimum amount required to Australia and had set up 2 successful businesses. However, he still had $200,000 in a term deposit as he was reluctant to commit more funds to another Australian business while his visa situation was unresolved.
The Tribunal then took evidence from the applicant’s son, the third named applicant. He told the Tribunal that while studying in Australia, he found the former agent on the internet. He engaged him on behalf of his father and the family even though he was based in Brisbane and the third named applicant in Melbourne, because he appeared very professional and was a Persian speaker. To the best of his memory, the third named applicant said that the agent told him that his father needed to have land and property worth at least AUD $2.5 million, and he passed this onto his father. He was the liaison point for documents emailed between his father in Iran and the agent in Brisbane, and he was mainly the one who spoke or emailed the agent, although he recalled that the agent may have once spoken directly with his father by telephone. The third named applicant said that neither he nor his father were ever provided with a copy of the visa application or any of the agent’s submissions in connection with it. He showed the Tribunal email correspondence on his mobile telephone indicating that he and his father had provided all of the documents – including the property valuation of 2 June 2014 – to the agent before September 2015, when the EOI Summary was required. In relation to the latter document, the third named applicant said that he recalled that the agent emailed this to him but he was not really sure what it was, or its significance. He said that he did not pay that much attention to it, as he trusted his agent as ‘the professional’ in this matter. He and the agent undertook to print out the relevant correspondence after the hearing and provide hard copies to the Tribunal.
The Tribunal observed that it was not entirely clear whether the EOI summary prepared in September 2015 was prepared by the delegate or by the agent, or what it was based on. However, its significance appeared to be that it only allocated points to the applicant for his net assets on the basis that they were worth between AUD $1.5 million and $1,799,999, and allocated additional points for the applicant holding patents or trademarks, and for being part of a joint venture, when in fact this did not appear ever to have been the case. The applicants’ agent reiterated that it appeared that the former agent had an imperfect understanding of these concepts and appeared not to have checked carefully enough with the applicants (who could not be expected to appreciate the technicalities of these factors) before either making the EOI summary or not correcting the EOI summary prepared by the delegate. He reiterated that by September 2015, the agent was in possession of all the necessary documents from the applicant, including the property valuation of 2 June 2014 which clearly indicated that the applicant’s net assets in Iran exceeded AUD $2 million at that time.
The Tribunal then took evidence from the applicant’s wife, the second named applicant. She confirmed that she had little direct participation in the visa application process, but she confirmed that the former agent had assured them that their case was simple and should be approved quickly. She emphasised that it had been extremely stressful and distressing for them that this had not turned out to be the case, and that they had effectively been living in limbo since the refusal of the visas in early 2017.
At the conclusion of the hearing, the Tribunal agreed to defer its decision for a further period for the applicants to provide additional material.
On 24 January 2019, the Tribunal received the following additional material from the applicants via their agent:
·further submissions; and
·print out of email from former agent to the third named applicant, 2 September 2014, stating, ‘It’s all done and completed. Now, this information will be Victorian State for approval [sic], I’ll let you know as soon as I get an answer. There’s a tax invoice attached for your attention, it has been paid in full. We’ll talk soon. Cheers…’ The email has 2 attachments (which have not been printed out) with the titles ‘Tax invoice.1467.pdf’ and ‘EOI.pdf.’
The applicants’ agent makes the following points (in summary):
·the applicant instructed that he relied on the professional advice of his former representative who was a registered migration agent in calculating the minimum score required to satisfy the requirements, in particular cl.186.222 and 188.311 of Schedule 2, for the grant of the subclass 188 visas;
·the applicant noted that his then representative claimed 5 points for his education qualification under part 7A.4 of the Points Test, in relation to which he was not entitled to any points since his Associate Degree from Iran could not meet the definition in r.2.26AC(6) and consequently did not meet subitems 7A41(a) or (b);
·furthermore, the applicant noted that a claim for points had been made by the former agent for Registered Designs and Joint Venture Agreements. After the refusal decision was made, the applicant found out that the delegate had requested further information about these claims on 13 October 2018, which were neither properly communicated or explained to him by the former agent;
·the applicant assumed that by being under the impression that the application would obtain sufficient points through the allocation of points for business innovation qualifications and his educational qualification, the applicant’s then-migration agent failed to claim accurate points for the applicant’s net financial assets;
·it was submitted that, had the applicant been advised appropriately, he would have provided further evidence of ownership of personal and business assets to make clear that they exceeded AUD $2 million, even though it was noted that the evidence provided to the Department prior to the refusal did demonstrate that the applicant in fact had net assets in Iran that should have entitled him to 35 points;
·at hearing, the applicant had confirmed that he and his wife do have other assets and properties in Iran, including residential property that is rented out. Evidence of this, and the net value of these assets, when converted from Iranian rials to Australian dollars under the official exchange rates of the Central Bank of the Islamic Republic of Iran was provided by the current agent in his first submission to the Tribunal, and was discussed at the Tribunal hearing;
·the applicant restated that his former agent never provided accurate advice in relation to the points break-down in the EOI to him directly. The applicant instructed that he attempted to contact the agent directly several times, to no avail. He also clarified that his son, the third named applicant, was mostly meant to assist with facilitating communication between the applicant and the agent, but the third named applicant was not authorised, or in a position to, give instructions to the agent about information such as the applicant’s net financial assets;
·it had now been approximately 5 years since the family had been in limbo awaiting the outcome of their application. They were running their current Australian businesses to the best of their ability despite this but were concerned that a prolonged period of uncertainty would affect their wellbeing and could jeopardise the financial situation of the family and their businesses here;
·they requested the Tribunal to consider that there was evidence before the delegate indicating that the applicant was entitled to 35 points for his net assets in Iran, and this should be allocated so that the application could meet the pass mark and continue to be processed; and
·although the maximum points were for business and personal assets were not claimed in the EOI breakdown due to the former agent’s negligent and inaccurate advice, the delegate could have had regard to the fact that the evidence itself established an entitlement to more points in relation to this factor, and/or the delegate could have sought more clarification of this issue.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
APPLICABLE LAW AND POLICY
The issue in the present case is whether the applicant satisfies cl.188.222, which provides as follows:
188.222
(1) The applicant’s score on the business innovation and investment points test is not less than the number of points specified by the Minister in an instrument in writing for this subclause.
(2) For subclause (1):
(a) an applicant’s score on the business innovation and investment points test is the sum of the applicant’s scores under Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8, 7A.9 and 7A.10 of Schedule 7A; and
(b) the Minister must not give the applicant the prescribed number of points for more than one prescribed qualification in Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8 and 7A.10 of Schedule 7A; and
(c) if the applicant’s circumstances satisfy more than one prescribed qualification in Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8 and 7A.10 of Schedule 7A, the Minister must give the applicant points for the qualification that has been satisfied that attracts the highest number of points.
The relevant parts of Part 188 of Schedule 2 of the Regulations are annexed to this decision, as is Schedule 7A of the Regulations in its entirety.
These will be referred to where relevant below.
CONSIDERATION OF CLAIMS AND EVIDENCE
As noted above, the applicant must meet the relevant parts of the Schedule 7A Points Test specified in cl.188.222(2) in order to meet cl.188.222(1) and therefore meet c.188.222 as a whole.
Accordingly, the Tribunal has assessed for itself the applicant’s entitlement to points under the specified parts of the Schedule 7A Points Test below.
Part 7A.2 – Age Qualifications
Points are awarded depending on the applicant’s age at the time that he or she was invited to apply for the visa (in this case, as at 11 November 2014).
The Tribunal finds, and the applicant does not dispute, that he was born on 21 March 1965 and was therefore 49 at the time he was invited to apply for the visa. The Tribunal finds he is therefore entitled to 15 points for this part as he meets 7A25, as he was not less than 45 and under 55 at the time he was invited to apply.
Part 7A.3 – English language qualifications
Points are awarded under this Part if, at the time he was invited to apply for the visa, the applicant had either vocational English (5 points) or proficient English (10 points), both of which terms have a specific legal meaning within the Regulations.
The applicant did not submit any evidence of having either vocational or proficient English at the time that he was invited to apply and is thus not entitled to any points under this part. Even if he were to undertake relevant English testing now, this would not be able to be taken into account as the relevant level of English had to exist at the time he was invited to apply for the visa.
Accordingly, the Tribunal finds that the applicant is not entitled to any points under this Part.
Part 7A.4 - Educational Qualifications
Points are awarded under this Part if, at the time he was invited to apply for the visa, the applicant met the requirements for either (a) the award of a trade qualification or degree by an Australian educational institution, or (b) the award of a bachelor qualification by an educational institution that is of a recognised standard (5 points); or (a) the award of a bachelor degree in business, science or technology by an Australian educational institution, or (b) the award of a Bachelor qualification in business, science or technology by an educational institution that is of a recognised standard (10 points).
The delegate found that the applicant had provided no evidence of holding an educational qualification that met any of the above and therefore did not allocate him any points under this Part. The Tribunal is satisfied, from its review of the Departmental files, that in his visa application, the applicant listed that he had a Diploma of Machine Tools from the Technical Institute of Tabriz in Iran, and that he stated that his highest recognised qualification obtained as ‘Bachelor degree (other).’ However, he did not indicate that he believed that he was entitled to any points for this when he completed an Expression of Interest (EOI) Points Breakdown on 10 November 2014.
Since then, the applicant has provided a copy of his Diploma of Associate’s Degree Course Completion; Field of Study: Machine Tool, awarded by the Technical Institute of Tabriz in Iran on 6 April 2011 (in Persian, with certified English translation).
The Tribunal has consulted the Australian Department of Education and Training’s Country Education Profile (CEP) on Iran (accessed 11 December 2017), which indicates that an Iranian Associate Degree (involving 2 or more years of study) awarded by a leading Iranian university would be considered equivalent to a Diploma in the Australian Qualifications Framework (AQF). The CEP further indicates that an Associate Degree awarded by another institution in Iran (including Technical Institutes) would be equivalent to a Certificate IV in the AQF.
While the Tribunal accepts that the applicant was awarded his Iranian qualification before he was invited to apply for the visa, it finds that it is not a degree or bachelor qualification awarded by an Australian institution, and further, it is not the award of a bachelor qualification by an Iranian educational institution (regardless of its standing).
The applicant and his agent did not dispute this finding.
Accordingly, the Tribunal concurs with the delegate that the applicant is not entitled to any points under this Part.
Part 7A.5 – Business Experience Qualifications
Under this Part, the applicant is entitled to 10 points if he has held one or more main businesses for not less than 4 years in the 5 years immediately before being invited to apply for the visa; or 15 points if he had held one or more main businesses for not less than 7 years in the 8 years immediately before being invited to apply for the visa.
The delegate awarded the applicant the maximum points for this Part, and the Tribunal concurs, having reviewed the available evidence, including the applicant’s detailed oral evidence of his business history and activities at hearing.
The Tribunal therefore finds that the applicant is entitled to 15 points under this Part.
Part 7A.7 – Financial Asset Qualifications
Points are available under this Part depending on the net value of the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his spouse or de facto partner together, immediately before the time of the invitation to apply for the visa.
In her decision, the delegate awarded the applicant 15 points on the basis that he had provided sufficient evidence that he had net assets of more than AUD $1,300,000 but not greater than AUD $1,800,000 in each of the 2 fiscal years before he was invited to apply for the visa on 11 November 2014. The Tribunal notes that this is in line with what the applicant himself estimated as his points under this Part in his EOI Points Breakdown on 10 November 2014.
At the time that the visa application was lodged, it was accompanied by the following evidence of the applicant’s net assets:
·handwritten sheet with entries for ‘net assets 20/3/13 (31,200,074,041 = $2,410,850) and 20/3/14 (37,802,774,311 = $1,655,310) – this appears to be drawn from a Persian language document (with certified English translation) headed Auditing Report to [the applicant], ending on 20.03.2014, which lists these as the total assets for the respective dates on a balance sheet prepared as at 20 March 2014;
·extract from EOI Points Breakdown as at 5/03/2015: it lists the applicant’s Personal and Business Assets as between $1,500,000 to $1,799,999.99; and
·Expert’s Report (Property Valuation) by an Official Expert of the Judiciary (Civil Engineer) issued on 2 June 2014, certifying that real estate owned by the applicant had a value of 80,000,000,000 rials, minus mortgage of 6,100,000,000 rials, net value being 73,900,000,000 rials as at that date (in Persian, with certified English translation).
As noted above, the following additional material was provided to the Tribunal at the time of lodgment of the review application in February 2017:
·Expert’s Report (Property Valuation) by an Official Expert of the Judiciary (Civil Engineer) issued on 10 January 2013, certifying that real estate owned by the applicant had a value of 66,000,000,000 rials;
·Google exchange rate of 66,000,000,000 rials to AUD $2,466,319.55 as at 15 September 2017; and
·Google exchange rate of 73,9000,000 rials to AUD $2,761,530.52 as at 15 September 2017.
On 26 February 2018, the applicant’s new migration agent, Mr Alireza Amiri, made additional submissions which can be summarised as follows:
·the applicant did not dispute the delegate’s allocation of 35 points in total to him for the Schedule 7A Points Test factors relating to his age, business experience, and business turnover at the time that he was invited to apply for the visa;
·however, he and the agent strongly believed that the applicant was entitled to receive a further 35 points for the Schedule 7A Points Test factor relating to his financial assets (item 7A74). This was on the basis that 35 points should be allocated if the net value of the applicant’s business and personal assets (or those belonging to his spouse, or to him and his spouse together) was not less than AUD $2,250,000 in each of the 2 fiscal years immediately before the time he was invited to apply for the visa;
·the applicant met item 7A74 and to support this, a certified translation and a copy of the document Expert Report of the applicant’s site and standing property (Registered Plate No. 88/98575) dated 2 June 2014, which had been in the applicant’s full possession since 27 August 2012; namely, more than 2 fiscal years before being invited to apply for the visa, as well as the lodgment date of 17 November 2014;
·the above-mentioned valuation stipulates that these specific sub-strata of the applicant’s financial assets are valued at IRR 73,900,000,000 in 2014. In accordance with the official exchange rate of Iranian Rials against other currencies, including the Australian dollar, published by the Central Bank of the Islamic Republic of Iran on the issue dates of the appraisal report, the above figure is equivalent to AUD $3,111,485.76 on 2 June 2014;
·alternatively, in accordance with ODANA, another ‘approved currency conversion website’ specified in the Department’s Procedures Advice Manual (PAM3), the same figure converts to AUD $3,096,160 on 2 June 2014; and
·therefore, the applicant is entitled to receive 35 points for his financial assets qualifications under item 7A74. Documentary evidence of the expert valuation and all exchange rates was provided, and it was therefore submitted that the applicant’s total score for the Schedule 7A Points Test should be 70 points, and not 50 points, as found by the delegate, and the Tribunal was invited to make this finding.
The Tribunal has closely reviewed the Departmental files and is satisfied that the Iranian Expert Valuation dated 2 June 2014 showing that the applicant had (at that time) net assets (being property) worth 73,900,000,000 rials was provided to the Department prior to the delegate’s decision. The Tribunal is satisfied that this was equivalent (as at 2 June 2014) to AUD $3,117,456 (using Central Bank of Iran exchange rates) or AUD $3,096,160 (using the ONANDA currency exchange website cited in PAM3). However, this document appears not to have been taken into account and/or accepted. In the Tribunal’s view, this is to some degree quite understandable as it was one of many financial documents provided with the visa application, and it also appears inconsistent with the EOI breakdown, also provided to the Department, stating that the applicant’s net personal and business assets were in the range of AUD $500,000 to $1,799,999.
Having had the opportunity to take detailed oral evidence from the applicant and his son (the third named applicant), it appears (although the matter is entirely free of doubt) that the applicants’ former agent prepared the EOI breakdown provided to the Department. The reasons as to why the agent listed this net asset value (and not the higher one from the 2 June 2014 valuation), and why he also indicated that the applicant expected to obtain points for his Iranian educational qualification, for meeting the ‘business innovation’ qualifications (which relate to trademarks etc and joint ventures) and for having special endorsement by the relevant State authority, is mysterious. The Tribunal found the applicants to be credible at hearing, so is prepared to extend the benefit of the doubt and to find these aspects of the EOI breakdown (a) to be erroneous, and (b) to have arisen out of some miscommunication between the former agent and the first and/or third named applicant. It appears from the text between the agent and the third named applicant that the latter was provided with a copy of the EOI breakdown document before it was lodged with the Department, but the Tribunal accepts the third named applicant’s evidence that he was not familiar with how it was calculated and relied on the agent to accurately allocate points to his father. The Tribunal further accepts that the applicant was not in a position to review the EOI breakdown of points, even had he received a copy, as it was in English.
Accordingly, although there is not a full explanation of what happened with the preparation of the EOI breakdown, the Tribunal is satisfied that it was not prepared accurately and did not in fact reflect the applicant’s actual net business and personal assets in Iran (and also erroneously asserted that he was entitled to points for his educational qualifications, business innovation efforts and State endorsement, none of which were the case).
The Tribunal considers that the EOI breakdown was, for whatever reasons, not accurate, but that this does not impugn the genuineness of the Expert Valuation Report of 2 June 2014. It accepts that this document is contemporaneous, genuine and accurate, and has not been fabricated, prepared and/or provided after the refusal decision was made.
The Tribunal therefore accepts that the value of the applicant’s net business and personal assets at the time that he was invited to apply for the visa was between AUD $3,117,456 (using Central Bank of Iran exchange rates) or AUD $3,096,160 (using the ONANDA currency exchange website cited in PAM3).
Moreover, the Tribunal accepts that the Expert Valuation Report dated 10 January 2013 listing the same assets of the applicant’s as worth 66,000,000,000 rials at that time is also genuine and accurate, although it appears that it was not provided to the Department with the visa application, but only to the Tribunal. However, the Tribunal accepts, given it is in the same format as the 2 June 2014 report, and given the instructions of the applicant that he got several valuations at different points in time and provided them all (with translations) to the agent, that it is contemporaneous and has not been created after the refusal decision. The Tribunal is satisfied that IRR 66,000,000,000 was equivalent to approximately AUD $5,086,029 using the ONANDA website.
Accordingly, as both amounts fall within the category of at least AUD $2,250,000 for the 2 fiscal years before the applicant was invited to apply for the visa, it follows that the applicant is entitled to 35 points under this Part.
Part 7A.8 – Business Turnover Qualifications
Points are awarded under this Part depending on the annual turnover of one or main businesses in which the applicant had an ownership interest. The relevant period is at least 2 of the 4 fiscal years before the applicant was invited to apply for the visa.
The delegate awarded the applicant 5 points under this Part as she was satisfied on the evidence before her than the annual turnover of the applicant’s main business in 2 out of the 4 fiscal years immediately before 11 November 2014 was no less than AUD $500,000 (but not greater than AUD $1 million). The applicant and his agents have not disputed this points allocation, and having reviewed the material provided to the Department, the Tribunal concurs that this is the appropriate allocation.
Accordingly, the Tribunal find that the applicant is entitled to 5 points under this Part.
Part 7A.9 – Business Innovation Qualifications
Point are awarded under this Part depending on whether, at the time of the invitation to apply for the visa, the applicant had 1 or more patents, registered designs, and/or trademarks that were registered not less than 1 year before that time and were used in the day to day activities of the main business, and/or had at least 1 business operating in a formal joint venture agreement relating to export trade and/or operated a business that had an average annualised growth in turnover exceeding 20% per annum over 3 continuous fiscal years and in at least 1 of those fiscal years, employed 10 or more employees (or equivalent). In addition, points could be allocated if the applicant ran a start up business in their home country that had been awarded government funding in that country worth at least AUD $10,000.
As noted above, although some claim for points under this Part was made in the EOI, no evidence has been provided to show that the applicant was in fact entitled to any points under this Part. The applicant’s evidence to the Tribunal was that neither he nor any of his businesses fell into any of the above categories, and he did not believe that he was entitled to any points under this Part. He maintained that this had either been misunderstood by his agent and/or not properly explained to him. He also stated that he was unaware that the EOI break down prepared on his behalf by his former agent included points for this Part.
The Tribunal concurs with the applicant that there is no evidence that he is entitled to any points under this Part. It finds that he is not entitled to any points under this Part.
Part 7.A10 – Special Endorsement Qualifications
Point are awarded under this Part depending on whether, at the time of the invitation to apply for the visa, the nominating State or Territory government agency had determined that the applicant’s proposed business was of unique and important benefit to the State or Territory where that agency was located.
Again, the applicant maintained that he had not been properly advised on this issue for his former agent, did not know whether points had been claimed on his behalf under the EOI break down but had no evidence of such an endorsement and did not claim that any of his businesses had such an endorsement.
The Tribunal finds no evidence of any such endorsement by the nominating State or Territory government agency.
It therefore finds that the applicant is not entitled to any points under this Part.
Conclusion
The Tribunal is satisfied that the applicant is entitled to a total of 70 points, based on its assessment set out above.
At the time of lodgment of this visa application on 17 November 2014, the relevant pass mark was 65 points. The Tribunal is satisfied that this remains the same as at the time of this decision: IMMI 12/041.
It follows that the applicant’s assessed score exceeds the applicable minimum pass mark for the Business Innovation and Investment Points Test set out in Schedule 7A of the Act.
The Tribunal finds that the applicant therefore satisfies cl.188.222(1) and cl.188.222 as a whole. The appropriate course is to remit his application to the Department to consider the remaining criteria for a subclass 188 visa.
As the second and third named applicants applied on the basis that they are members of the family unit of the applicant, their applications will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration.
DECISION
The Tribunal remits the application for Class EB subclass 188 (Business Skills) (Provisional) visas in the Business Innovation stream for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 188 visa:
·cl.188.222 of Schedule 2 to the Regulations.
Alison Mercer
Member
Extract from Schedule 2 of the Migration Regulations (1994), Part 188:
Part 188 Business Innovation and Investment (Provisional)
188.1 Interpretation
188.111
In this Part:
designated investment means an investment in a security that is specified for this Part by the Minister under regulation 5.19A.
188.112
In this Part, each of the following is an eligible investment if a person owns it for the purpose of producing a return in the form of income or capital gain, and not for personal use:
(a) an ownership interest in a business;
(b) cash on deposit;
(c) stocks or bonds;
(d) real estate;
(e) gold or silver bullion.
188.113
In this Part, a loan to a business is an eligible investment if a person makes it for the purpose of producing a return in the form of income or capital gain.
Note 1 For AUD, business innovation and investment points test, fiscal year, ownership interest and qualifying business: see regulation 1.03.
Note 2 Regulation 1.03 also provides that member of the family unit has the meaning set out in regulation 1.12.
Note 3 main business is defined in regulation 1.11.
Note 4 For the beneficial ownership of an asset, eligible investment or ownership interest: see regulation 1.11A.
Note 5 complying investment is defined in regulation 5.19B.
[note inserted by SLI 2012, 22 nov with effect on and from 24/11/2012 - LEGEND note]
188.2 Primary criteria
[note substituted by SLI 2012, 22 nov with effect on and from 24/11/2012 - LEGEND note]
Note The primary criteria for the grant of a Subclass 188 visa include criteria set out in streams.
If an applicant applies for a Subclass 188 visa in the Business Innovation stream, the criteria in Subdivisions 188.21 and 188.22 are the primary criteria for the grant of the visa.
If an applicant applies for a Subclass 188 visa in the Business Innovation Extension stream, the criteria in Subdivisions 188.21 and 188.23 are the primary criteria.
If an applicant applies for a Subclass 188 visa in the Investor stream, the criteria in Subdivisions 188.21 and 188.24 are the primary criteria.
If an applicant applies for a Subclass 188 visa in the Significant Investor stream, the criteria in Subdivisions 188.21 and 188.25 are the primary criteria.
If an applicant applies for a Subclass 188 visa in the Significant Investor Extension stream, the criteria in Subdivisions 188.21 and 188.26 are the primary criteria.
The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
All criteria must be satisfied at the time a decision is made on the application.
188.21 Common criteria
Note These criteria are for all applicants seeking to satisfy the primary criteria for a Subclass 188 visa.
188.211
The applicant, and the applicant’s spouse or de facto partner, do not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.
188.212
The nominating State or Territory government agency has not withdrawn the nomination.
188.213
[(1) amended by SLI 2012, 256 with effect on and from 24/11/2012 - LEGEND note]
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4020 and 4021.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.
(4) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 188 visa; and
(b) had turned 18 at the time of application;
satisfies public interest criterion 4019.
(5) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 188 visa; and
(b) has not turned 18;
satisfies public interest criteria 4015 and 4016.
(6) Each member of the family unit of the applicant who is not an applicant for a Subclass 188 visa satisfies public interest criteria 4001, 4002, 4003 and 4004.
188.214
(1) The applicant satisfies special return criteria 5001, 5002 and 5010.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies special return criteria 5001, 5002 and 5010.
[188.215 omitted by SLI 2012, 256 with effect on and from 24/11/2012 - LEGEND note]
188.22 Criteria for Business Innovation stream
Note These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Business Innovation stream.
188.221
(1) The applicant was invited, in writing, by the Minister to apply for the visa.
(2) The applicant:
(a) had not turned 55 at the time of the invitation to apply for the visa; or
(b) is proposing to establish or participate in business or investment activity that the nominating State or Territory government agency has determined is of exceptional economic benefit to the State or Territory in which the agency is located.
188.222
(1) The applicant’s score on the business innovation and investment points test is not less than the number of points specified by the Minister in an instrument in writing for this subclause.
(2) For subclause (1):
(a) an applicant’s score on the business innovation and investment points test is the sum of the applicant’s scores under Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8, 7A.9 and 7A.10 of Schedule 7A; and
(b) the Minister must not give the applicant the prescribed number of points for more than one prescribed qualification in Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8 and 7A.10 of Schedule 7A; and
(c) if the applicant’s circumstances satisfy more than one prescribed qualification in Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8 and 7A.10 of Schedule 7A, the Minister must give the applicant points for the qualification that has been satisfied that attracts the highest number of points.
188.223
The applicant demonstrates that there is a need for the applicant to be resident in Australia to establish or conduct the proposed business activity.
188.224
The applicant has overall had a successful business career.
188.225
(1) For at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant had an ownership interest in one or more established main businesses that had an annual turnover of at least AUD500 000 in each of those years.
(2) If the applicant was engaged in one or more businesses providing professional, technical or trade services for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant was directly engaged in the provision of the services, as distinct from the general direction of the operation of the business, for no more than half the time spent by the applicant from day to day in the conduct of the business.
188.226
At the time of invitation, the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, that can be applied to the establishment or conduct of a business in Australia have a net value of at least AUD800 000.
188.227
The nominating State or Territory government agency is satisfied that the net value of the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, other than the business and personal assets mentioned in clause 188.226, is sufficient to allow the applicant and the spouse or de facto partner to settle in Australia.
188.228
The business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together:
(a) are lawfully acquired; and
(b) are available for transfer to Australia within 2 years after the grant of a Subclass 188 visa.
188.229
(1) The applicant genuinely has a realistic commitment to:
(a) establish a qualifying business in Australia; or
(b) participate in an existing qualifying business in Australia.
(2) The applicant genuinely has a realistic commitment to:
(a) maintain a substantial ownership interest in the qualifying business mentioned in subclause (1); and
(b) maintain a direct and continuous involvement in the management of the qualifying business from day to day, and in the making of decisions that affect the overall direction and performance of the qualifying business, in a manner that benefits the Australian economy.
188.229A
(1) The applicant satisfies public interest criterion 4005.
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies public interest criterion 4005.
(3) Each member of the family unit of the applicant who is not an applicant for a Subclass 188 visa satisfies public interest criterion 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.
…
The Schedule 7A points test comprises the following Parts and items:
Part 7A.2 - AgeItem
At the time of invitation the applicant was:
Points
7A21
at least 18 but less than 25 years old
20
7A22
at least 25 but less than 33 years old
30
7A23
at least 33 but less than 40 years old
25
7A24
at least 40 but less than 45 years old
20
7A25
at least 45 but less than 55 years old
15
Part 7A.3 – English language qualifications
Item
At the time of invitation the applicant had:
Points
7A31
vocational English
5
7A32
proficient English
10
Part 7A.4 - Educational qualifications
Item
At the time of invitation the applicant had:
Points
7A41
met the requirements for:
· the award of a trade qualification, diploma or bachelor degree by an Australian educational institution or
· the award of a bachelor qualification by an educational institution that is of a recognised standard
5
7A42
met the requirements for:
· the award of a bachelor degree in business, science or technology by an Australian educational institution or
· the award of a bachelor’s qualification in business, science or technology by an educational institution that is of a recognised standard
10
Part 7A.5 – Business experience qualifications – Business Innovation steam only
Item
The applicant held one or more main businesses for:
Points
7A51
at least 4 years within the 5 years immediately before the time of invitation
10
7A52
at least 7 years within the 8 years immediately before the time of invitation
15
Part 7A.6 – Investor experience qualifications – Investor stream only
Item
The applicant:
Points
7A61
held eligible investments with a value of at least AUD 100 000 for at least 4 years immediately before the time of invitation
10
7A62
held eligible investments with a value of at least AUD 100 000 for at least 7 years immediately before the time of invitation
15
Part 7A.7 - Financial asset qualifications
Item
The net value of the business and personal assets of the applicant, of the applicant’s spouse/or de facto partner, or of the applicant and spouse/de facto partner together, was:
Points
7A71
at least AUD 800 000 in each of the 2 fiscal years immediately before the time of invitation
5
7A72
at least AUD 1 300 000 in each of the 2 fiscal years immediately before the time of invitation
15
7A73
at least AUD 1 800 000 in each of the 2 fiscal years immediately before the time of invitation
25
7A74
at least AUD 2 250 000 in each of the 2 fiscal years immediately before the time of invitation
35
Part 7A.8 – Business turnover qualifications
Item
The applicant had an ownership interest in one or more main businesses that had an annual turnover of
Points
7A81
at least AUD 500 000 in at least 2 of the 4 fiscal years immediately before the time of invitation
5
7A82
at least AUD 1 000 000 in at least 2 of the 4 fiscal years immediately before the time of invitation
15
7A83
at least AUD 1 500 000 in at least 2 of the 4 fiscal years immediately before the time of invitation
25
7A84
at least AUD 2 000 000 in at least 2 of the 4 fiscal years immediately before the time of invitation
35
Part 7A.9 - Business innovation qualifications
Item
At the time of invitation:
Points
7A91
the applicant, or a main business of the applicant, had:
· one or more patents that:
· were registered not less than 1 year before the time of the invitation and
· were used in the day to day activities of the main business
or
· one or more registered designs that:
· were registered not less than 1 year before the time of the invitation and
· were used in the day to day activities of the main business
15
7A92
the applicant, or a main business of the applicant, had one or more registered trade marks that:
· were registered not less than 1 year before the time of the invitation and
· were used in the day to day activities of the main business
10
7A93
each of the following applied:
· at least one main business in which the applicant held an ownership interest operated in accordance with a formal joint venture agreement entered into with another business or businesses
· the joint venture agreement had been entered into not less than 1 year before the time of the invitation
· the applicant utilised their skills in actively participating at a senior level in the day to day management of the business
5
7A94
at least one main business held by the applicant derived at least 50% of its annual turnover from export trade in at least 2 of the 4 fiscal years immediately before the time of invitation
15
7A95
the applicant had an ownership interest in at least one main business that:
· was established no more than 5 years before the time of the invitation and
· had an average annualised growth in turnover of more than 20% annually over 3 continuous fiscal years and
· employed at least 10 full-time equivalent employees in at least one of the 3 fiscal years mentioned immediately above
10
7A96
the applicant, or at least one main business in which the applicant held an ownership interest:
· had received a grant that:
· was awarded for the purposes of early phase start up of a business, product commercialisation, business development or business expansion and
· was at least AUD10 000 and
· was awarded by a government body in the applicant’s home country and
· had been received not more than 4 years immediately before that time
or
· had received venture capital funding of at least AUD100 000 not more than 4 years before the time of the invitation for the purposes of early phase start up of a business, product commercialisation, business development or business expansion
10
Part 7A.10 Special endorsement qualifications
Item
At the time of invitation:
Points
7A101
The nominating State/Territory government agency determined that the business proposed by the applicant is of unique and important benefit to the State/Territory where the nominating government agency is located.
10
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