BATHAEI (Migration)

[2019] AATA 1028

BATHAEI (Migration) [2019] AATA 1028 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mehdi Bathaei
Mrs Forouzan Samiee
Mr Ali Reza Bathaei

CASE NUMBER:  1732765

DIBP REFERENCE(S):  BCC2016/3351091, BCC2018/713381

MEMBER:Katie Malyon

DATE:24 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Statement made on 24 January 2019 at 5:52 pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 ­­– applicant’s business did not employ at least 2 full-time employees who are Australian citizens, permanent residents or New Zealand passport holders – applicant fails to have an ownership interest in one or more actively operating main businesses in Australia –Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.11, Schedule 2, cls 890.214, 890.217, 890.2, 890.211, Schedule 1

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 19 December 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).  The applicants applied for the visas on 12 October 2016.  

2. The delegate refused to grant the visas after considering whether any of the 3 visa applicants, all of who are members of the same family unit, meet primary criteria for grant of the visa. The first named applicant, Iranian national Mr Mehdi Bathaei, was refused the visa on the basis that he did not meet cl.890.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations). This clause requires that the applicant has 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 160 Business Owner (Provisional) visa (Subclass 160 visa). Based on Departmental movement records, the delegate found that Mr Bathaei had been in Australia for a total of only 86 days in the relevant period and so he failed to satisfy cl.890.217 of Schedule 2 to the Regulations.

3. The remaining visa applicants are members of Mr Bathaei’s family: the second named applicant is his wife Mrs Forouzan Samiee; and, the third named applicant is the couple’s 25-year-old son Mr Ali Reza Bathaei.  Consistent with the Note at cl.890.2 Primary Criteria of the Regulations that the primary criteria must be satisfied by at least one member of the family unit, the delegate also considered whether either Mrs Samiee or Ali Bathaei meet the primary criteria for a Subclass 890 visa at the time of application.  As each of Mrs Samiee and Ali Bathaei had spent more than 365 days in Australia in the 2 years prior to lodgement of the application, the delegate then considered other primary criteria for grant of the visa. 

4. In relation to Mrs Samiee, the delegate found that the main business of the applicants is Tetis Foods Pty Ltd ABN 023 16 859 534 (Tetis) and that, based on evidence provided, Tetis did not employ at least 2 full-time employees who are Australian citizens, permanent residents or New Zealand passport holders in the 12 months immediately before the Subclass 890 visa application was made. Accordingly, the delegate found she does not meet the criteria in cl.890.214 of Schedule 2 to the Regulations.

5. Further, in relation to Ali Bathaei, the delegate found that, as the holder of only 10% of the shares in Tetis, Ali Bathaei’s ownership stake in the business of Tetis is not substantial enough to meet the definition of ‘main business’ as set out in r.1.11(c) of the Regulations. As a result, the delate found Ali Bathaei fails to have an ownership interest in one or more actively operating main businesses in Australia for at least 2 years immediately before the application is made. In the circumstances, he does not meet the requirements of cl. 890.211 of Schedule 2 to the regulations.

6. Arising from the delegate’s analysis of the fact scenario presented by the applicants, none of them met the primary criteria for grant of the Subclass 890 visa and, as a result, none of the other applicants could meet the secondary criteria for grant of the visa.  A copy of the delegate’s decision was provided to the Tribunal.

   Background

7. Mr Bathaei is Managing Director of Tetis.  ASIC records in the Department’s file confirm that he owns 40% of the shares in Tetis.  His wife Mrs Samiee owns 50% of the shares and is also a Director of Tetis.  The remaining 10% of shares in Tetis are owned by the couple’s son, Ali Bathaei.  Tetis is involved in the export from Australia to Iran of Australian food products.  Since incorporating Tetis in Australia in 2013, the company has been involved in the export to Iran of dairy products, especially butter.  More recently, the company has been involved in the export of meat products.

8. On 24 October 2017, the Department wrote to the applicants to inform them that, based on its review of Mr Bathaei’s movement records, it appeared he did not meet cl.890.217 of Schedule 2 to the Regulations as he had spent only 86 days in Australia in the relevant period before lodgement of the visa application. The applicants were invited to provide comments or information in respect of the delegate’s view that requisite criteria were not met. Mr Bathaei responded on 14 December 2017 acknowledging comments regarding his limited presence in Australia during the relevant period. He also advised that he is required to travel out of Australia due to his main job, that is, marketing Australian dairy products, negotiating with Tetis’ customers, attending trade fairs etc. Mr Bathaei also noted that his wife Mrs Samiee provides support to Tetis on financial/banking matters, documentation as well as paperwork and legalisation of documents, inspection of products and all relevant activity done with suppliers in Australia.

9. The delegate acknowledged Mr Bathaei’s response.  However, the delegate found that it did not change the fact that Mr Bathaei was not in Australia for the required 365 days in the 2 years immediately before applying for his Subclass 890 visa on 12 October 2016 (that is, from 12 October 2014 to 11 October 2016) and, as a result, he did not satisfy cl. 890.217 of Schedule 2 to the Regulations. Further, the delegate found that neither of the secondary visa applicants met the criteria for grant of the visa, either as the primary applicant or as secondary applicants for the reasons outlined above at paras [4] - [6] above. The applicants sought review of the delegate’s decision.

   Hearing

10. The applicants appeared before the Tribunal on 19 December 2018 to give evidence and present arguments.  Mr Bathaei provided a large number of documents at the hearing in relation to Tetis including: unsigned financial reports for years ended 30 June 2016, 2017 and 2018; invoices confirming export of butter and meat products; a letter from Interfood Australia Pty Ltd confirming a co-operation agreement with Tetis; Mr Bathaei’s completion of a 5 day course at Melbourne Polytechnic TAFE as a Meat Exporter; and, evidence of leasing arrangements for Tetis’ recent purchase of a licensed bar and cafe Soltan Shisa Cafe in Ryde.  The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.  The Tribunal notes that Mr Bathaei rarely had occasion to use the interpreter.  Mrs Samiee and Ali Bathaei did not use the interpreter at all. 

11. The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.  After the hearing, the Tribunal received notice of termination of the representative’s services.

12. Mr Bathaei told the Tribunal that the shareholding in Tetis remains the same as at the time of lodgement of the Subclass 890 visa application: that is, he owns 40% of the shares, Mrs Samiee owns 50% of the shares and their son owns the remaining 10% of shares. 

13. Having reviewed primary visa applicant Mr Bathaei’s movement records in the 2 years immediately before his Subclass 890 visa application was made on 12 October 2016 (that is, from 12 October 2014 to 11 October 2016), the Tribunal observed that following grant of his Subclass 160 visa on 13 March 2012, it calculates he has spent only 83 days in Australia in the 2 years prior to lodgement of his Subclass 890 visa application on 12 October 2016 as outlined in the Table below:

    
    
    

Arrival date	Departure date	Day prior to lodgement date	Days in Australia in the 2 years before 12 Oct 2016	Total days in Australia
14 March 2015	14 April 2015	March (17 days), April (14 days)	31
11 March 2016	12 April 2016	March (20 days), April (12 days)	32
26 June 2016	8 July 2016	June (4 days), July (8 days)	12
4 Oct 2016	11 Oct 2016	October (8 days)	8
TOTAL	83

1. Mr Bathaei concurred with the Tribunal’s calculation of his time spent in Australia in the relevant 2 year period prior to lodgement of the Subclass 890 visa application.  He told the Tribunal that, in addition to having to market products in Iran, his time has been taken up establishing the business and then getting it running because of global sanctions against trading with the Iran.  He said the sanctions were not lifted until early 2016.  The Tribunal acknowledged Mr Bathaei’s comments in this regard.[1]  However, it noted that it has no discretion in this matter and must make a decision in accordance with the law.  Mr Bathaei added that when the sanctions came into effect in 2012 (not long after grant of his Subclass 160 visa), he was advised by his bank to close Tetis’ bank account and it was not until the sanctions were lifted in 2016 that the export business commenced again.

   [1] >

   Mrs Samiee told the Tribunal that, following the trade sanctions being lifted, revenue is now in the order of $2 million per annum.  She added it is her role to look after financial management of the business of Tetis as well as quality control and that, whilst her husband does not meet the residence requirement because he has been overseas working hard in the Middle East marketing Tetis’ goods there, she has remained in Australia for all but approximately 2 months of the 2 year period leading up to lodgement of the family’s Subclass 890 visa application.  The Tribunal acknowledged Mrs Samiee’s time spent in Australia is confirmed by the Department’s movement records. 

2. The Tribunal also acknowledged at the hearing that, based on documentation provided including evidence of attendance at multiple overseas trade fairs, Mr Bathaei has clearly been busy and involved in marketing in Iran the products Tetis imports from Australia.  It also noted turnover of the business in the order of $2 million based on copy invoices provided, although the financial statements provided are unsigned and no Business Activity Statements have been lodged with the Tribunal. 

3. Documentation provided to the Tribunal at the hearing includes evidence of recent exports including mutton and lamb as well as unsalted lactic butter.  Mr Bathaei told the Tribunal that, apart from the sanctions, poor rainfall in southern Australia meant that in 2016 and 2017 butter production and therefore exports dropped off, especially in the Murray Goldburn area where Tetis sources it products.  The Tribunal has independently confirmed that exports of dairy products dropped in this period.[2] 

   [2] 2017/18

4. Ms Samiee also told the Tribunal that not only has Tetis moved into exporting meat as well but it also has recently purchased the business of Soltan Shisa Cafe.  She added that Soltan Shisa Cafe is in the process of recruiting 2 permanent residents. The Tribunal observed that the requirements in cl.890.214 of Schedule 2 to the Regulations are that the main business must have employed at least 2 full-time employees who are Australian citizens or permanent residents in the 12 months immediately before the Subclass 890 visa application was lodged.  Mrs Samiee acknowledged the Tribunal’s statement of the law and the implications for the family’s Subclass 890 visa application. 

5. Ali Bathaei, the third named applicant, told the Tribunal that he now holds a Subclass 500 visa and that he had been studying a Bachelor of Interior Design.  He added that he has had a limited involvement in management of the business of Tetis because he has been studying his degree.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether an applicant meets the primary criteria for grant of the visa.  As there are 3 applicants in this matter, the Tribunal has considered whether any of the applicants meet the primary criteria.

8. Clause 890.217 of Schedule 2 to the Regulations requires an applicant to 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. 

9. Assuming that one of the applicants meets the criteria in cl.890.217 of Schedule 2 to the Regulations, the next issue for the Tribunal to then consider is whether that applicant meets the criteria of cl.890.214 of Schedule 2 to the Regulations. This requires an applicant to have employed, in their main business, at least 2 full-time employees who are Australian citizens or permanent residents in the 12 months ending immediately before the application was made. 

10. The Tribunal has considered these issues for each of the visa applicants respectively.

    Has cl.890.217 of Schedule 2 to the Regulations been met by one of the applicants?

    Mr Bathaei

11. Having regard to the evidence before it, the Tribunal finds that prior to lodging his Subclass 890 application Mr Bathaei held a Subclass 160 visa, that is, one of the visas mentioned in para 1104B(3)(d) of Schedule 1 to the Regulations. Mr Bathaei’s Subclass 160 visa was granted on 13 March 2012. Further, as the holder of a Subclass 160 visa and as set out in the Table at para [13] above, Mr Bathaei has spent 83 days in Australia in the 2 years immediately before applying for his Subclass 890 visa.

12. In the circumstances, the Tribunal finds that, although Mr Bathaei 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.

13. Therefore, Mr Bathaei does not meet cl.890.217 of Schedule 2 to the Regulations.

    Mrs Samiee and Ali Reza Bathaei

14. Having regard to the evidence before it, the Tribunal finds that, prior to lodging their Subclass 890 application, each of Mrs Samiee and Ali Bathaei held a Subclass 160 visa granted on 13 March 2012.  Further, as the holders of a Subclass 160 visa and having regard to the Department’s movement records, the Tribunal finds that both Mrs Samiee and Ali Bathaei have spent well in excess of 365 days in Australia in the 2 years immediately before applying for her Subclass 890 visa. 

15. Accordingly, both Mrs Samiee and Ali Bathaei meet cl.890.217 of Schedule 2 to the Regulations.

    Has cl.890.214 of Schedule 2 to the Regulations been met by an applicant?

16. As noted above, cl.890.214 of Schedule 2 to the Regulations requires the applicant (or the applicant and their partner) demonstrate that they have employed in their ‘main business’ at least 2 full-time employees who are Australian citizens, permanent residents or New Zealand passport holders in the 12 months ending immediately before the application was made. 

17. The ‘main business’ of the applicants is Tetis.  The Department’s file contains the following documentation confirming the financial position of Tetis, further copies of which were provided to the Tribunal:

    ·financial report for the year ended 30 September 2016 signed by Mrs Samiee dated 12 December 2017;

    ·tax return for the year ended 30 June 2016; and,

    ·company tax return for year ended 30 June 2017.

    In addition, the Tribunal was provided with an (unsigned) financial report for the year ended 30 June 2018.

18. As noted in the delegate’s decision, a copy of which was provided to the Tribunal, the applicants’ Form 1217 Business Skills Profile: Business Owner (Residence) states that they rely on 2 main businesses: first, Tetis; and, second Tetis Overseas Co, a company incorporated and based in Iran.[3]   However, it is the Australian company Tetis which is operating “in Australia” and which, therefore, is the only company the subject of consideration in the applicants’ Subclass 890 visa application.

    [3] f48 BBC/3351091

19. During the course of the hearing - and having established that both Mrs Samiee and Ali Bathaei meet the residence requirements in cl.890.217 of Schedule 2 to the Regulations - the Tribunal discussed the requirements in cl.890.214 of Schedule 2 to the Regulations regarding the need for one of the applicants to demonstrate the main business employed at least 2 full-time employees who were Australian citizens, permanent residents or New Zealand passport holders in the 12 months immediately preceding lodgement of the Subclass 890 visa application. The Tribunal also noted that, in response to Q.18 in the Form 1217 regarding the number of full-time equivalent employee is in the main business for the last 12 months who are Australian citizens, permanent residents or New Zealand passport holders, primary visa applicant Mr Bathaei had indicated ‘0’ (that is, zero). Furthermore, and as set out in the financial reports, monies have been paid by way of salary or wages only to ‘associated persons’: no evidence has been provided of Tetis’ employment of any persons who are not applicants. In the circumstances, the delegate found neither Mrs Samiee nor Ali Bathaei met cl.890.214 of Schedule 2 to the Regulations.

20. Mrs Samiee told the Tribunal that Tetis did not employ anyone else in the lead up to lodgement of the family’s Subclass 890 visa application. As explained by both Mr Bathaei and Mrs Samiee this was largely due to the sanctions in place. Mrs Samiee concurred with the Tribunal’s observation that, as a result, it appeared she could not, personally, meet the requirements in cl.890.214 of Schedule 2 to the Regulations. She indicated that they really needed ‘a bit more time’ whereupon the Tribunal reminded the applicants it was considering the time of application criteria set out in cl.890.214 of Schedule 2 to the Regulations, not a time of decision criteria. Mrs Samiee acknowledged the Tribunal’s observation and reflected that, while Tetis may not have directly created jobs nonetheless many jobs have been created indirectly, especially people working for the Murray Goldburn group of companies with whom Tetis does a lot of work.

21. Based on evidence provided, including oral admission from both Mrs Samiee and Mr Bathaei at the hearing, the Tribunal finds that the applicants’ main business, Tetis, did not employ at least 2 full-time employees who are Australian citizens, Australian permanent residents or New Zealand passport holders in the 12 months ending immediately before the applicants applied for their Subclass 890 visas. 

22. Accordingly, the Tribunal is not satisfied that any of the applicants meet cl.890.214 of Schedule 2 to the Regulations. The Tribunal must therefore affirm the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

1. There is no evidence before the Tribunal to suggest, and none of the applicants have claimed, that they meet the requirements for any of the other subclasses in Class DF. 

   DECISION

2. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

   Katie Malyon

   
   Member