ALAGHEHBAND (Migration)

[2019] AATA 1274

ALAGHEHBAND (Migration) [2019] AATA 1274 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Mahdi Alaghehband
Ms Masoumeh Kamali
Mr Taha Alagheh Band
Ms Hoda Alaghehband

CASE NUMBER:  1731929

DIBP REFERENCE(S):  BCC2016/2010358, BCC2018/352548

MEMBER:Katie Malyon

DATE:15 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first named applicant a Business Skills (Residence) (Class DF) visa.

The Tribunal has no jurisdiction with respect to the second, third and fourth named applicants.

Statement made on 15 January 2019 at 10:25 am

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner – not in Australia for required 365 days in 2 years immediately before applying for visa – applicant in Australia for 353 days – incorrect legal advice – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347, 351
Migration Regulations 1994 (Cth), Schedule 1, para 1104B (3)(d), Schedule 2, cl 890.217

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 November 2017 to refuse to grant the applicants Business Skills (Residence) (Class DF) Subclass 890 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 10 June 2016.

3. The delegate refused to grant the visas on the basis that cl.890.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met. This clause requires that the primary visa applicant, Iranian national Mr Mohammad Mahdi Alaghehband, had been in Australia as the holder of one of the visas mentioned in para 1104B(3)(d) of Schedule 1 to the Regulations for a total of one year (that is, 365 days) in the 2 years immediately before the application was made. Included in the list of 6 visas mentioned in para 1104B(3)(d) of Schedule 1 to the Regulations is the Subclass 164 State/Territory Sponsored Senior Executive (Provisional) visa (Subclass 164 visa).   

4. Relying on Departmental movement records, the delegate found that Mr Alaghehband was in Australia for 353 days and, therefore, he failed to satisfy cl.890.217 of Schedule 2 to the Regulations. The remaining visa applicants are members of Mr Alaghehband’s family and their visas were refused as a consequence of his failing to meet primary criteria. A copy of the delegate’s decision was provided to the Tribunal.

   Background

5. Formerly a Textile Engineer with extensive management experience in the textile and rug industry, Mr Alaghehband owns 40% of the shares and is Managing Director of Robotuft Pty Ltd ABN 88 165 321 960 (Robotuft).  Established on 16 August 2013, Robotuft imports containers of machine made carpets from Iran for sale in Australia.  The business is the exclusive agent for 2 of Iran’s leading carpet companies, Savin Carpet Company based in Tehran and Keramatian Carpet in Isfahan.  Other business opportunities, such as food imports, have also been explored.  Mr Alaghehband’s Subclass 164 visa was granted on 23 September 2011.

6. On 23 May 2017, the Department wrote to the applicants to inform Mr Alaghehband that, based on his movement records, he did not meet cl.890.217 of Schedule 2 to the Regulations. It invited him to provide any information or comments in respect of the view that requisite criteria were not met. The applicants’ representative responded on their behalf on 18 June 2017 advising that Mr Alaghehband had been required, due to his wife’s medical condition, to return to Iran in April 2014 in anticipation of the birth of his second child.

7. As noted in the delegate’s decision, a copy of which was provided to the Tribunal, the delegate considered the response but found that it did not alter the fact that Mr Alaghehband was not in Australia for the required 365 days in the 2 years immediately before applying for his Subclass 890 visa on 10 June 2016 (that is, from 10 June 2014 to 9 June 2016) and, as a result, he did not satisfy cl. 890.217 of Schedule 2 to the Regulations.

   Invitation to attend a hearing

8. On 21 November 2018, the Tribunal invited the applicants to attend a hearing on 19 December 2018 at 9:30 am (NSW time).  On 6 December 2018, the applicants’ representative advised the Tribunal that Mr Alaghehband would attend the Tribunal hearing in Sydney and that his wife, the second named visa applicant Ms Masoumeh Kamali, would attend by telephone from Iran. 

9. In the circumstances, the Tribunal contacted the representative by phone and noted that a hearing scheduled for 9:30 am (NSW time) would be 1:30 am in Iran.  In the circumstances, the Tribunal asked if the applicants would prefer the hearing commence at 4:00 pm in Sydney, that is, 8.30 am in Iran.  The representative agreed that this would be preferable.  Accordingly, the Tribunal rescheduled the hearing for 20 December 2018 at 4:00 pm. 

   Hearing

10. Mr Alaghehband appeared before the Tribunal on 20 December 2018 to give evidence and present arguments.  His wife did not attend the hearing by teleconference from Iran.  The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.  The applicants were represented in relation to the review by the registered migration agent who assisted them with their Subclass 890 visa application.  The representative also attended the Tribunal’s hearing.

11. Asked for his initial comments in relation to the delegate’s decision to refuse his Subclass 890 visa application, Mr Alaghehband told the Tribunal that a Melbourne-based immigration lawyer assisted him when he applied for his Subclass 164.  He added that his former lawyer did not inform him of any of the requirements to secure permanent residence with a Subclass 890 visa application: he was only aware that he had 4 years after arriving in Australia to actually lodge the application.  The Tribunal noted that the requirements for a Subclass 890 visa have largely remained unchanged since the subclass was introduced on 1 March 2003.  Mr Alaghehband said it was his Melbourne-based lawyer’s mistake in failing to advise him regarding all of the requirements for proceeding to permanent residence that has caused him to find himself in the current situation.  The Tribunal provided Mr Alaghehband a copy of its brochure Immigration Assistance with details of where he may wish to complain about his former representative’s failure to advise him of the requirements for a Subclass 890 visa. 

12. Mr Alaghehband then gave the Tribunal an account of why, having arrived in Australia on 10 March 2014, he had to leave on 23 April 2014.  He said his wife was pregnant at the time.  She had actually planned to accompany Mr Alaghehband to Australia (the Tribunal notes Departmental movement records confirm she had earlier accompanied her husband to Australia for period totalling 8½ months as the holder of a Subclass 164 visa) but was prevented from doing so because of her pregnancy.  Not long after he arrived in Australia, his wife experienced severe abdominal pain and, at his wife’s request following a visit to her medical advisor, Mr Alaghehband decided to return to Iran to be with his wife during the remaining period of her confinement until the risk of a preterm delivery had passed.  His wife gave birth to the couple’s second child - a son, the fourth named applicant - on 3 August 2014. 

13. At the hearing, Mr Alaghehband provided the Tribunal with a Statement from Ms Houriossasat Motefakker , Midwifery Expert at the Milad Centre of Consultation & Midwifery Services Presentation dated 11 December 2018 (in Persian together with a certified copy English translation thereof) which sets out full details in relation to Mr Alaghehband’s wife being medically advised on 13 April 2014 (a month after Mr Alaghehband arrived in Australia) to have ‘absolute rest at home in order to prevent any complications affecting the foetus as well as any factors leading to preterm and high-risk delivery’.    

14. The Tribunal acknowledged Mr Alaghehband’s reasons for leaving Australia on 23 April 2014 to be with his wife and to assist in her time of need. It noted that it has no discretion to waive the requirements of cl.890.217 of Schedule 2 to the Regulations and that the clause does not include an exception in the case of compassionate or compelling circumstances as to why an applicant does not meet the prescribed one year (365 days) in the 2 years prior to lodgement of their Subclass 890 visa application. Mr Alaghehband acknowledged the Tribunal’s position in this regard.

15. In addition, the Tribunal summarised its review of Mr Alaghehband’s movement records which confirm that he has spent 353 days in Australia in the 2 years before 10 June 2016 when he applied for his Subclass 890 visa.  Mr Alaghehband agreed with the Tribunal’s statement.  He also acknowledged that the Tribunal must affirm the delegate’s decision and stated that he is ‘well aware of the Tribunal’s need to apply the law’, which he ‘totally respects’.  The Tribunal found Mr Alaghehband to be a credible witness.

16. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant meets the requirements in cl.890.217 of Schedule 2 to the Regulations. In order to satisfy this clause, the applicant must have been in Australia as the holder of one of the visas mentioned in para 1104B(3)(d) of Schedule 1 to the Regulations for a total of at least one year (365 days) in the 2 years immediately before the application was made.

18. Having reviewed Mr Alaghehband’s movement records in the 2 years immediately before his Subclass 890 visa application was made on 10 June 2016 (that is, on and from 10 June 2014 to 9 June 2016), the Tribunal notes that, as the holder of a Subclass 164 visa, he left Australia on 23 April 2014 and did not return again until some 13½ months later on 7 June 2015.  He then left on 29 October 2015 and returned just over 2 weeks later on 15 November 2015.  Based on these movements - and as discussed with Mr Alaghehband at the hearing - the Tribunal calculates he has spent 353 days in Australia in the relevant period as outlined in the Table below:

    
    
    

Arrival date	Departure date	Prior to lodgement date	Days in Australia in the 2 years before 10 June 2016	Total days in Australia
7 June 2015	29 October 2015	June (24 days), July (31 days), August (31 days), September (30 days), October (29 days)	145
15 November 2015	9 June 2016	November (16 days ), December (31 days), January (31 days), February (29 days), March (31 days), April (30 days), May (31 days), June (9 days)	208
TOTAL	353

1. As explained to Mr Alaghehband in the hearing, the Tribunal has no discretion in this matter and must make a decision in accordance with the law.

2. Having regard to the evidence before it, the Tribunal finds that prior to lodging his Subclass 890 application Mr Alaghehband held a Subclass 164 visa, that is, one of the visas mentioned in para 1104B(3)(d) of Schedule 1 to the Regulations. Mr Alaghehband’s Subclass 164 visa was granted on 23 September 2011. Further, as the holder of a Subclass 164 visa and as set out in the Table above at para [18], Mr Alaghehband spent 353 days in Australia in the 2 years immediately before applying for his Subclass 890 visa. In the circumstances, the Tribunal finds that, although Mr Alaghehband held one of the visas mentioned in para 1104B(3)(d) of Schedule 1 to the Regulations in the 2 years immediately before his Subclass 890 visa application was made, he was not in Australia for a total of one year (that is, 365 days) in the 2 years immediately prior to his application. He falls 12 days short of the required 365 days.

3. For these reasons, the Tribunal finds that Mr Alaghehband does not satisfy cl.890.217 of Schedule 2 to the Regulations.

4. The Tribunal notes that it has no jurisdiction in relation to the second, third and fourth named applicants – that is, Ms Masoumeh Kamali, Mr Taha Alagheh Band and Ms Hoda Alaghehband. Departmental records confirm that each of these review applicants departed Australia on 1 August 2016. In the circumstances, they were not in Australia at the time of lodgement of the application for review was lodged on 27 November 2017 and, accordingly, do not meet the requirements in s.347(3) of the Act. As such, the Tribunal has no jurisdiction in relation to them.

   Is this an appropriate case to refer to the Minister?

5. Under s.351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant if the Minister thinks it is in the public interest to do so. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

6. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added).  According to the Minister’s guidelines, the circumstances which may be unique or exceptional include, relevantly:

   “circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in your case” (emphasis added).

   [1] homeaffairs.gov.au/what-we-do/status-resolution-service/ministerial-intervention#content-index-1

7. As discussed with Mr Alaghehband during the hearing, the Tribunal has insufficient documentation to enable it to make an assessment as to whether this is an appropriate case to refer to the Minister consistent with the full guidelines published by the Minister. Further, it appears that he may have other visa pathways available to him, including offshore pathways and, in these circumstances, the Ministerial guidelines states that, in these circumstances, it is generally not appropriate for the Minister to intervene. The representative observed that Mr Alaghehband is a businessman who has not only invested time and money in efforts to establish the business of Robotuft but has also contributed to Australia and it was really only his wife’s medical condition which forced him to leave Australia sooner than he anticipated in April 2014 such that he has failed to meet the requirements in cl.890.217 of Schedule 2 to the Regulations by a mere 12 days. Mr Alaghehband added that, given his wife’s medical condition, he did not have an option: he could not have stayed (in Australia) as her condition was such that it was out of his control.

8. The Tribunal acknowledged the representative’s observations and Mr Alaghehband’s comments.  It noted that it is open for Mr Alaghehband, if he so wishes, to seek ministerial intervention directly.

   DECISION

9. The Tribunal affirms the decision not to grant the first named applicant a Business Skills (Residence) (Class DF) visa.

10. The Tribunal has no jurisdiction with respect to the second, third and fourth named applicants.

    Katie Malyon

    
    Member