BATHAEI (Migration)

This matter concerned an appeal by Mr Bathaei and two other applicants against a decision not to grant them Business Skills (Residence) (Class DF) visas, specifically Subclass 890. The core of the dispute revolved around whether the applicants' main business, Tetis, met the regulatory requirements for employment and ownership at the time of application.

The Tribunal was required to determine two primary legal issues. Firstly, whether any of the applicants met the residence requirement stipulated in clause 890.217 of Schedule 2 to the Regulations, which mandates being in Australia for at least one year in the two years immediately preceding the visa application. Secondly, and crucially, the Tribunal had to ascertain whether the applicants satisfied clause 890.214 of Schedule 2 to the Regulations, which requires the main business to have employed at least two full-time employees who were Australian citizens, permanent residents, or New Zealand passport holders in the 12 months prior to the visa application.

The Tribunal found that while Mrs Samiee and Ali Bathaei met the residence requirement under clause 890.217, none of the applicants satisfied the employment criteria under clause 890.214. Despite acknowledging the impact of international sanctions on the business's ability to employ staff, the Tribunal noted that the law required assessment at the time of application. Evidence, including an admission from Mr Bathaei, indicated that Tetis employed zero full-time Australian citizens, permanent residents, or New Zealand passport holders in the relevant period. Consequently, the Tribunal affirmed the decision not to grant the Business Skills (Residence) (Class DF) visas.