Bansal (Migration) - [2024] AATA 1604

Bansal (Migration) [2024] AATA 1604 (22 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Aakhesh Kumar Bansal
Mrs Renu Bansal
Mr Yash Bansal
Mr Kanav Bansal
REPRESENTATIVE:  Mr Sukhwinder Singh (MARN: 1685730)
CASE NUMBER:  2111850
HOME AFFAIRS REFERENCE(S):          BCC2019/4126360
MEMBER:Peter Ranson
DATE:22 May 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the applications for Business Skills (Provisional) (Class EB) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:
·cl.188.232 of Schedule 2 to the Regulations.

Statement made on 22 May 2024 at 3:38pm

CATCHWORDS
MIGRATION – Subclass 188 (Business Innovation and Investment (Provisional)) visa – Subclass 188 – a qualifying business – applicant had an ownership interest in the nominated convenience store business at the relevant times – applicant continues to have an ownership interest in the main business – businesses were actively operating in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 134
Migration Regulations 1994, Schedule 2, cl 188.232

CASES
Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513

STATEMENT OF DECISION AND REASONS

BACKGROUND

Mr Bansal and his family are from India. They came to live in Australia in December 2015 and together with another Indian national, he purchased an interest in a 7-Eleven store in outer Melbourne. Unfortunately, that business relationship did not end well for Mr Bansal. The business eventually closed and was later sold, and he got back very little of the funds he had invested in it. He embarked on a new venture in a similar type of business, this time as a retail tobacconist. This business has gone well, and a second store has been acquired.
The first issue in this case is whether Mr Bansal has one or two businesses.
The applicants applied for the visas on 20 August 2019. Class EB contains Subclass 188 (Business Innovation and Investment (Provisional)). The criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (Cth).
The primary criteria must be satisfied by at least one applicant. Mr Bansal is the primary visa applicant and the review applicant and is seeking to satisfy the primary criteria for a Subclass 188 visa in the Business Innovation Extension stream which include the criteria in Subdivisions 188.21 and 188.23 of Schedule 2 to the Regulations. 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. In this case, Mr Bansal applied for the visa in the Business Innovation Extension stream.
On 31 August 2021, a delegate of the Minister for Home Affairs refused to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) on the basis Mr Bansal did not satisfy the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 1604
Decision Date: 22 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr Bansal for review of a decision concerning his Subclass 188 (Business Innovation and Investment (Provisional)) visa. The core of the dispute involved whether the businesses nominated by Mr Bansal met the legislative requirements for a "qualifying business" under clause 188.232 of the Migration Regulations 1994.

The Tribunal was required to determine whether the two businesses Mr Bansal relied upon, a 7-Eleven convenience store and a Freechoice tobacconist, were one and the same, and whether he had the requisite ownership interest in a "main business" that was actively operating in Australia for at least two years prior to his application, and continued to hold that interest at the time of the Tribunal's decision. The Tribunal also considered its entitlement to treat policy as a relevant factor in its determination, provided it was applied flexibly and consistently with the legislation.

The Tribunal reasoned that a business is an enterprise or undertaking, distinct from the legal entity that operates it, and that an Australian Business Number is attached to an entity, not the business itself. It noted that one business can be owned by multiple entities, and vice versa. The Tribunal observed similarities and differences between the nominated businesses, with the 7-Eleven store selling groceries and associated products including tobacco, and the Freechoice tobacconist specialising in tobacco and related products, also offering other items. The Tribunal acknowledged case law establishing that policy can be a relevant consideration if the Tribunal expressly indicates its consideration of the policy's propriety and the reasons for its conclusion.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. This was because the Tribunal needed to definitively identify the business to which the definition of "main business" applied, given the distinct entities operating the 7-Eleven and Freechoice franchises and the potential for overlap in their product offerings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded the matter should be remitted for reconsideration. The Tribunal is charged with determining the correct or preferable decision based on an independent assessment of the facts before it and is entitled to treat policy as a relevant factor in that determination. The Full Federal Court has found that where a policy exists to guide the decision maker in exercising its powers, the Tribunal may apply that policy in reviewing a decision where it "makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion”.[1][1] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, from 420. To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the policy is consistent with the requirements as set out in the legislation. Before considering the business or businesses relied on by Mr Bansal it is necessary to first determine whether the two businesses he nominated are one and the same because there are a lot of similarities and some differences between them. Mr Bansal has been involved with a retail grocery business under a 7-Eleven franchise and a retail tobacconist business under a Freechoice franchise, each operated by different entities. Clause 188.232(1) requires that for at least the two years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia. There is an alternative for applications made on or after 19 September 2020, which does not apply here as Mr Bansal applied on 20 August 2019. Clause 188.232(2) requires the applicant must continue to have the ownership interest mentioned in cl.188.232(1) at the time of this decision. Case law has established a business is not a legal entity but rather an enterprise or undertaking.[2] It is therefore important for the Tribunal to identify the business to which the definition of main business must be applied. It is also important to note that one business can be owned by multiple entities and conversely, multiple businesses can be owned by one entity. For the avoidance of doubt, an Australian Business Number (ABN) attaches to an entity (such as a company, trust, partnership or sole trader), not to a business enterprise.[2] Ibrahim v MIAC [2009] FCA 1328 at [30]. As mentioned above, a business is an enterprise separate from the entity which operates it. At the hearing he said the 7-Eleven business sold groceries and associated products including tobacco and related smoking products. The website of 7-Eleven indicates their stores sell food, drinks, gift cards and sometimes fuel. Self-evidently, a tobacconist business sells tobacco and related smoking products. According to the Freechoice website:‘Freechoice Tobacconist offers a wide selection of high-quality products at the best possible price point. From tobacco products and pet supplies to inexpensive gifts and homeware, we have everything you can need.’