Anand (Migration) - [2025] ARTA 435

ANAND (MIGRATION) [2025] ARTA 435 (18 FEBRUARY 2025)

DECISION AND

REASONS FOR DECISION

Applicants:Mr Rajinder Singh Anand
Mrs Jagjeet Kaur
Miss Simrat Kaur Anand
Miss Neet Kaur Anand
Mr Abhinoor Singh Anand
Miss Aradhya Kaur
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2303860

Tribunal:General Member P Ranson
Place:Brisbane
Date:18 February 2025
Decision:The Tribunal affirms the decisions not to grant the visa applicants Subclass 888 (Class EC) visas.

Statement made on 18 February 2025 at 3:21pm

CATCHWORDS

MIGRATION – Business Skills (Permanent) (Class EC) visa – Subclass 888 (Business Innovation and Investment (Permanent)) – Business Innovation stream – ownership interest in an actively operating main business in Australia – Business Activity Statements lodged with the visa application – statements for the period immediately prior to the visa application – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 888.222 - 888.225, 888.311

CASES

Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407
Nasirzadeh & Ors v Minister for Immigration & Anor [2019] FCCA 1115
Niasar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 213

STATEMENT OF REASONS

BACKGROUND

Mr Anand is from India where he studied accountancy and obtained a Bachelor of Commerce in 1997 from Kumaun University, Nainital.[1] He came to Australia and invested in a building company in July 2017. That investment went badly for him, so he withdrew in November 2019. He also invested in an accountancy practice in November 2017. That investment was made through a discretionary trust.
[1] Welcome To The Official Website Of Kumaun University, Nainital | Kumaun University, Nainital.
Mr Anand applied for a Subclass 888 visa in the Business Innovation stream on 2 March 2020. Class EC contains Subclass 888 (Business Innovation and Investment (Permanent)). The criteria for the grant of a Subclass 888 visa are set out in Part 888 of Schedule 2 to the Migration Regulations 1994. The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. The primary criteria include common criteria, and criteria set out in streams.
Where an applicant applies for a Subclass 888 visa in the Business Innovation stream, the criteria in Subdivisions 888.21 and 888.22 are the primary criteria for the grant of the visa. All criteria must be satisfied at the time a decision is made on the application.
The secondary applicants applied based on being members of the family unit of Mr Anand. The delegate found the secondary applicants could not be granted Subclass 888 visas, as they did not meet the primary criteria, nor did they meet the secondary visa criterion (cl.888.311) requiring them to be members of the family unit of a person who met the primary visa criteria.

On 3 March 2023, a delegate of the Minister for Home Affairs refused to grant Mr Anand a Business Skills (Permanent) Subclass 888 visa under s 65 of the Migration Act 1958. Mr Anand then applied for a review of that decision.
It was drawn to the attention of Mr Anand and his agent Mr Shah at the hearing the department file appeared to indicate not all the Business Activity Statements required were lodged with the visa application. Mr Shah said he could submit evidence they were.
The first issue is whether the Tribunal is satisfied each Business Activity Statement (BAS) required by the Commissioner of Taxation during the two years immediately before the application was made had been submitted to the Commissioner and included in the application.

The delegate refused to grant the visa on the basis that clause 888.225 was not satisfied. That clause requires Mr Anand to meet certain requirements including net business assets of at least $200,000, two or more full-time equivalent employees, and net business and personal assets of $600,000. Two of those three criteria must be satisfied in the 12 months immediately before the vias application was made. The main business definition must be satisfied, and the turnover of the nominated business must be at least $300,000 in the 12 months immediately before the visa application was made.
The second issue in whether the requirements of cl.888.225 are met.

For the following reasons, the Tribunal has concluded the decision under review should be affirmed.

DOES THE BUSINESS HAVE AN ABN?

In his visa application, Mr Anand nominated two businesses, viz, a construction business operated by Paradise Builders Pty Ltd, and an accountancy practice operated by Dhir Pty Ltd as trustee for Dhir Family Trust. He exited the construction business in November 2019 so only relies on the accountancy practice to meet the requirements for the visa he applied for.
Clause 888.223 says an Australian Business Number (ABN) has been obtained for each business mentioned in subclause 888.222(1). That clause requires Mr Anand to have an ownership interest in at least one actively operating main business in Australia during the two years immediately before the application was made and continues to have the ownership interest in the actively operating main business, that is, the accountancy practice.
On 29 September 2024, the Tribunal conducted a search of the Australian Business Register (ABR) on ABN 93 909 485 447 and confirmed the entity is The Trustee for Dhir Family Trust, which is the entity which operates the accountancy practice. The ABN has been current since 1 November 2014 and Goods & Service Tax (GST) registration has been current since 1 July 2016.
Accordingly, the Tribunal is satisfied Mr Anand satisfies cl.888.223 because he holds a 50% interest in the accountancy business through his family trust.

WERE THE BAS INCLUDED IN THE APPLICATION?

As Mr Shah said in his submission of 1 October 2024, clause 888.224 says each Business Activity Statement required by the Commissioner of Taxation (Commissioner) during the two years immediately before the application was made has been submitted to the Commissioner and has been included in the application.
The department file includes copies of the BAS for Dhir Family Trust for the eight quarters ending from 30 September 2017 to 30 June 2019. However, the BAS for the two years immediately before the application was lodged on 2 March 2020 are for the eight quarters ending from 31 March 2018 to 31 December 2019.
On 9 February 2022, the delegate wrote to Mr Anand care of his then migration agent and said:
You are required to provide copies of all BAS lodged during the two years preceding application. BAS for your main business, Dhir Family Trust for the following periods have not been received: 1 July 2019 to 31 December 2019.
At the hearing, Mr Anand was advised that in this review, the Tribunal will consider cl.888.225 which means establishing his ownership interest in the business and then whether it meets the main business definition and it will also consider cl.888.223 and 188.224 concerning ABN and BAS included in the application. In response, Mr Shah said he could provide evidence to show the relevant BAS were lodged with the application.
In his 1 October 2024 submission, Mr Shah on behalf of Mr Anand provided submissions to the Tribunal concerning satisfaction of cl.888.224 in which he said:
BAS for the September 2019 and December 2019 were lodged to the ATO before the visa application was submitted. These BAS were not submitted because they submitted eight BAS for two financials years from July 2017 to Jun 2019 to the BSMQ for the nomination. Because of that they submitted the same BAS to visa application.
He also provided a document obtained from the Department of Home Affairs in relation to Mr Anand's application and on page 10 of that document under a heading ‘Taxation Documents’ it shows Business Activity Statements were received on 5 March 2020 however it also shows the BAS for the quarters ended 30 September 2019 and 31 December 2019, as referred to in the delegate’s letter dated 9 February 2022, were not provided until 25 March 2022, that is, they appear to have been provided in response to the delegate’s letter and at no earlier time. This was confirmed by Mr Shah in his 1 October 2024 submission.
The Regulations do not provide a definition of the words ‘included in the application’ as used in cl.888.224. Departmental policy about BAS states inter alia:
For 888.224, certified copies of original BAS or printed copies of the online version from the ATO portal that cover at least 2 years before the application is made must be provided to the department before a visa can be granted.
The Tribunal does not apply this policy because it is at odds with a plain reading of the Regulation. Policy only requires BASs for at least two years before the application was made. That could mean any two-year period before the application was made, whereas cl.888.224 uses the words ‘the two years immediately (emphasis added) before the application was made’.
In Nasirzadeh & Ors v Minister for Immigration & Anor [2019] FCCA 1115 at [45] Judge Driver said in relation to cl.892.211(2) which is similarly worded to cl.888.224:
… clause 892.221(2) imposes a “time of application” criterion requiring, among other things, that BAS “have been included in the application”. This, too, imports an “objective temporal test”.
The Tribunal must be satisfied at the time of its decision whether the BASs were included in the application. Regardless of what headings may or may not appear in the regulations, Nasirzadeh effectively imposes a time of application requirement on criterion which include the words ‘included in the application’ such as cl.888.224. The objective temporal test referred to in Nasirzadeh means there must be a close connection in time between the action required by the criterion and the time of application.
The textual aspects of cl.888.224 point strongly to the conclusion an application will be unsuccessful if it failed to contain evidence:
(a)each BAS required by the Commissioner during the two years immediately before the application was made had been submitted to the Commissioner, and
(b)copies of those BAS had been included in the application.
The requirements in cl.888.224 for an application for a Subclass 888 visa are expressed in imperative or obligatory terms. The regulation specifies the BASs has been lodged with the Commissioner and included in the application. The use of the imperative ‘has been’ naturally indicates the requirements to which they relate are necessary constituent elements of a Subclass 888 visa application. The natural meaning of the words ‘has been’ means the matter to which they relate are obligatory. So much was recognised in analogous circumstances in Fernando,[2] where Finkelstein J said at [50]:
Then there is the language of s 412 itself. An application for review “must” be given to the Tribunal within the prescribed period. If one adopts, as it is sometimes necessary to do, the maxim that Parliament says what it means and means what it says, the language adopted by the legislature strongly suggests that an application given to the Tribunal after the relevant period has elapsed is invalid.
[2] Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407, 419
Clause 888.224 is not expressed in indeterminate language rather it imposes a requirement which can be easily identified and applied. Applying this to cl.888.224, where BASs are not included in the application [for a Subclass 888 visa], and are first provided at some later time, as in this case, the regulation is not satisfied, and the application cannot succeed.
That is not to say an application which did not contain copies of all the required BAS as lodged could not be perfected provided there is a close connection in time between the action required by the criterion and the time of application. The courts have identified a period of more than five months as outside the scope of a close temporal connection for this purpose.[3]
[3] Niasar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 213 at [31].
The difficulty for Mr Anand is the BASs for the September 2019 and December 2019 quarters were not provided until 25 March 2022, which is two years after the application was made. As mentioned above in the quote from his 1 October 2024 submission, Mr Shah confirmed these two BAS were not submitted with the application even though they had been lodged.
The Tribunal is satisfied each Business Activity Statement required by the Commissioner of Taxation during the two years immediately before the application was made had been submitted to the Commissioner and is not satisfied each Business Activity Statement had been included in the application.
Accordingly, the Tribunal finds cl.888.224 is not met. That means this application cannot succeed and so there is no utility in considering cl.888.225 being the criterion on which the delegate refused the application.

OVERALL CONCLUSION

Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 888 (Business Innovation and Investment (Permanent)) visa are not met. Accordingly, the decision under review must be affirmed.
The Tribunal must also affirm the decision not to grant the secondary applicants Subclass 888 visas as they do not meet the secondary visa criterion (cl.888.311) requiring them to be members of the family unit of a person who holds a Subclass 188 visa, and there is no evidence they meet the primary visa criteria for this subclass.
The Tribunal notes it is open to Mr Anand to apply for Ministerial Intervention if he considers his circumstances meet the relevant guidelines.

DECISION

The Tribunal affirms the decisions not to grant the visa applicants Subclass 888 (Class EC) visas.

Date of hearing:  30 September 2024
Date final submissions received:            14 February 2025
Interpreter:  Hindi and English
Representative for the Applicant:           Mr Jasmin Shah (MARN: 1808222)
Witness:Mr Abday Dhir