Forough Bakhsh (Migration) - [2019] AATA 6708

Forough Bakhsh (Migration) [2019] AATA 6708 (28 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mohammad Amin Forough Bakhsh
Miss Panya Forough Bakhsh
Master Pedram Forough Bakhsh
Master Peiman Forough Bakhsh
CASE NUMBER:  1721645
DIBP REFERENCE(S):  BCC2016/2263745 BCC2016/2425634 BCC2017/3623308 BCC2017/3623310
MEMBER:Keith Kendall
DATE:28 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:
· cl.892.211 of Schedule 2 to the Regulations;
· cl.892.214 of Schedule 2 to the Regulations; and
· cl.892.221(a) of Schedule 2 to the Regulations.

Statement made on 28 October 2019 at 11:43am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – ownership interest in main business – relevant entity – active operation – consecutive ownership of businesses – Departmental policy – commencement date of carrying on business – mere preparatory steps – nominated main business – ‘restaurant serving authentic Persian cuisines’ – cessation of restaurant business – catering business – relevant industry body – Fair Work Commission groupings – Australian Bureau of Statistics groupings – equivalent activities – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 134

Migration Regulations 1994 (Cth), rr 1.03, 1.11, 1.11A; Schedule 2, cls 892.211, 892.214, 892.221
CASES
Ferguson v Federal Commissioner of Taxation (1979) 37 FLR 310
Liang v Minister for Immigration and Citizenship [2009] FCA 189
Rahbarinejad v MIBP [2018] FCCA 2293
Shahpari v Minister for Border Protection [2016] FCCA 513
Yang v Minister for Immigration & Anor [2014] FCCA 1576
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 September 2017 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 4 July 2016. At the time of application, Class DF contained four subclasses: 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and 893 (State/Territory Sponsored Investor). The applicants in this case are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.
The delegate refused to grant the visa on the basis that the first named visa applicant (“the applicant”) did not satisfy the requirements of cl.892.211 and 892.221 of Schedule 2 to the Regulations on the basis that the applicant maintained an ownership interest in one or more actively operating main businesses throughout the two years immediately before the date of application (cl.892.211) or that the applicant maintained an ownership interest in one or more operating main businesses at the time of decision (cl.892.221).
The applicant appeared before the Tribunal on 14 June 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
At the hearing, the applicant provided a detailed background to the businesses that had been carried on relevant to the application, which he had conducted since 2013. The applicant had registered a single company, Aramin Pty Ltd, through which he had conducted two distinct businesses. The first of these was an air conditioning importation and sales business and the second a Persian cuisine business. Both of these businesses were nominated on the original application form. Considerations relevant to the specific business activities are considered below.
The applicant described the trading history of these businesses as well as some matters o fa more personal nature affecting the conduct of the second business, particularly a dispute with a former employee (which resulted in the applicant seeking an intervention order be made against that former employee) and the breakdown of his marriage. These events caused him to change the focus of the second business (dealing with Persian cuisine) although, as set out below, did not result in a departure from the business nominated on the application form.
The Tribunal found the applicant to be a very credible witness, who was candid with his responses, including on matters that were, understandably, uncomfortable for him to discuss. Consequently, the Tribunal is satisfied that it can rely on the evidence that the applicant gave at the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case may be summarised as whether the applicant was operating a main business throughout the relevant period under cl.892.211 (and, by extension, cl.892.221).
As the analysis below shows, this is a multifaceted issue, with each aspect addressed in turn.
Ownership interest in main business
Clause 892.211(1) requires that the applicant had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made and continued to have that interest at the time the visa application was made. The applicant must continue to satisfy this requirement at the time of this decision: cl.892.221(a). No more than two businesses can be nominated for this purpose (r.1.11(2)) and only one or both of the businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion: Yang v Minister for Immigration and Border Protection [2014] FCCA 1576.
The businesses relied on by the applicant to satisfy these requirements are and have been operated through a single company, Aramin Pty Ltd (ACN 160 746 458) (“Aramin”). The Tribunal notes that Aramin’s registered name, until 29 January 2014, was Green Tech Group Pty Ltd. Two businesses were nominated through this company on the application form, being Aramin Air Conditioning (A/C) Business and Kolbeh Persian Restaurant, with these names registered as business names belonging to Aramin.
Accordingly, the Tribunal must consider the nature of the applicant’s interest in these businesses, whether the businesses were actively operating and whether they met the definition of “main business” in the period commencing two years immediately prior to the date of application and as at the date of application. The Tribunal must also consider these issues as at the date of this decision and whether the applicant continues to satisfy cl.892.211(1).
Relevant entity
Prior to considering the elements of cl.892.211, the primary decision raises a preliminary issue requiring consideration. In that decision, the delegate refers to Aramin Air Conditioning and Kolbeh Persian Cuisine as trading entities of Aramin. The primary decision goes on to refer to Aramin as a parent company that does not provide goods and services in its own right. The delegate noted that Aramin was identified as the sole main business (as in an entity conducting a business) in a submission provided to the Department of Immigration and Border Protection (“the Department”), which was interpreted as being in conflict with the original application that nominated two main businesses (being Aramin Air Conditioning and Kolbeh Persian Cuisine).
This view expressed by the delegate, which appears in other aspects of the primary decision as well, may be summarised as the delegate viewing Aramin as a company whose only function was to hold interests in two other entities, being Aramin Air Conditioning and Kolbeh Persian Cuisine. It was Aramin Air Conditioning and Kolbeh Persian Cuisine that carried on the trading activities, with Aramin holding those interests passively as a parent company.
This approach is incorrect to the extent that Aramin Air Conditioning and Kolbeh Persian Cuisine are treated as entities in their own right. The only evidence before the Tribunal is that there is a single company only, being Aramin. Aramin Air Conditioning and Kolbeh Persian Cuisine are trading names only, with no separate existence at law. Both names are owned by Aramin, which used those names to conduct the trading enterprises in its own right.
Consequently, the Tribunal is satisfied that Aramin is the only company involved in this matter and conducted businesses in its own right under the names of Aramin Air Conditioning and Kolbeh Persian Cuisine. Aramin is capable of operating a main business (or main businesses, as is the case here) for the purposes of cl.892.211 and, to the extent that goods and services were provided under those trading names, those goods and services were provided by Aramin.
Does the applicant have an ownership interest in each business relied on at all relevant times?
An ‘ownership interest’, in relation to a business, means an interest in the business as:
a.a shareholder in a company that carries on the business, or
b.a partner in a partnership that carries on the business, or
c.the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts: r.1.03 of the Regulations and s.134(10) of the Act. Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of r.1.11A of the Regulations, set out in the attachment to this decision: r.1.11A(1).
In order to meet cl.892.211(1) the Tribunal must be satisfied that the applicant had an interest of this kind in the relevant business or businesses both at the time of making that application and for the two years immediately before. In order to meet cl.892.221(a) the Tribunal must be satisfied that the applicant continues to satisfy this requirement at the time of this decision.
As noted above, the Tribunal has concluded that the only entity of interest is Aramin, with Aramin Air Conditioning and Kolbeh Persian Cuisine being trading names only with no separate legal existence in their own right independent of Aramin. Consequently, the relevant issue is whether the applicant maintained a sufficient ownership interest in Aramin at all relevant times.
A search of the Australian Securities and Investments Commission’s (“ASIC”) database shows that Aramin was incorporated on 12 October 2012.The applicant is listed as the sole current director, a position that he has held since incorporation. The applicant is listed as the sole current shareholder in Aramin, holding 410,000 shares.
The extract from the ASIC database lists one former shareholder, Mr Kayvan Farzaneh, who held 12 shares in Aramin. Mr Farzaneh is also a former director and secretary of Aramin, ceasing both positions on 4 February 2013. It is noted that the applicant is listed in this extract as having become the company secretary from 4 February 2013 and continues to hold that position.
The extract from the ASIC database indicates that there was a change of shareholding on 4 February 2013. As the applicant and Mr Farzaneh are the only listed shareholders in Aramin at any time, this change could only have been a transfer of shares from Mr Farzaneh to the applicant. This interpretation is consistent with the observation above that Mr Farzaneh ceased his involvement with the governance of Aramin on 4 February 2013 (i.e. the same date as the share transfer). From the ASIC records, therefore, it appears that the applicant acquired an interest in Aramin no later than 4 February 2013.
The ASIC records indicate that there were subsequent changes to the shareholdings in the company by virtue of issues of further shares. As there have been no other shareholders involved in Aramin and the significant number of shares held by the applicant (410,000 listed as having been bought for $410,000), this is consistent with new shares being issued to the applicant by way of additional equity financing provided by the applicant. This is also consistent with the applicant having been sole director and secretary since 4 February 2013, since no other parties are identified as having had an interest in Aramin (aside from Mr Farzaneh).
It is not clear from this evidence whether the applicant held an interest in Aramin between 12 October 2012 (i.e. the date of incorporation) and 4 February 2013. The Tribunal regards this as likely, though, on the balance of the evidence before it, as the Tribunal does not regard it as likely that an individual would be a director in a company of this size without also being a shareholder (noting that the applicant has been a director since incorporation). It is not necessary for the Tribunal to make a definitive finding on this matter, hence the Tribunal has not investigated this specific matter further.
The Tribunal is, therefore, satisfied that the applicant has held an interest in Aramin since at least 4 February 2013. As the visa application was lodged on 4 July 2016, the Tribunal is, therefore, satisfied that the applicant held an ownership interest in Aramin for at least two years immediately before the application was made. Based on the ASIC records, the Tribunal is satisfied that the applicant continues to have an ownership interest in Aramin as at the date of this decision.
Was the applicant actively operating a business relied upon at all relevant times?
In order to meet cl.892.211(1) the Tribunal must be satisfied that the applicant was actively operating one or more main businesses (as nominated in the visa application) both at the time of making the visa application and during the two years immediately before. In order to meet cl.892.221(a) the applicant must continue to satisfy this requirement at the time of this decision.
The term ‘actively operating’ is not defined in the Act or Regulations. In considering whether this requirement is met, the Tribunal may consider whether the business exhibited activity of a ‘repetitive, continuous and permanent character’ at the relevant times, in which the business actively sought to generate business, in fact generated trade and custom and derived some financial gain for its activities in the relevant period: Shahpari v Minister for Border Protection [2016] FCCA 513 at [71].
As a prelimary matter, which is of central relevance to this decision, cl.892.211(1) is not clear whether the continuity requirement must be satisfied by any one particular main business nominated on the visa application or whether, having nominated two main businesses on the visa application (as is the case here), the applicant is at liberty to discontinue one of those main businesses and commence the other during this period.
As set out in more detail below, the applicant nominated two main businesses on the visa application. One of those businesses commenced trading before the two year period commenced, but not the other. This first business ceased trading before the visa application was made. The other business commenced trading less than two years before the visa application was lodged, but that commencement occurred prior to the first business ceasing.
Consequently, the circumstances under consideration are that the applicant (through Aramin) commenced trading in a nominated main business by the required time (two years before the visa application was lodged). At the time of the visa application, a main business as nominated in the visa application was being conducted (this particular finding is made below after consideration of relevant factors arising in this matter). At all times during the two year period before the visa application was lodged (and subsequently to the date of this decision), the applicant was conducting a main business that had been nominated on the visa application. However, during this two year period, one of those main businesses had ceased and the other commenced prior to that cessation.
Therefore, the preliminary question to be addressed is whether cl.892.211(1) requires (at least) one (as in the same) main business to have been conducted at all times during the period under review. Alternatively, is cl.892.211(1) satisfied where the applicant was conducting at least one main business that was nominated on the visa application at all times? If the first interpretation is applied, the applicant fails to meet cl.892.211(1). If the second interpretation applies, based on the evidence and analysis below, the applicant would meet this requirement.
Clause 892.211(1) requires that “The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made”.
On its face, cl.892.211 is not clear whether the main business or main businesses relied upon must have each been conducted throughout the entirety of the two year period or whether it is sufficient that the applicant had conducted one, but not necessarily the same, main business at all times.
The Department’s policy as contained in Procedures Advice Manual PAM3 at [4.2] addresses this matter, stating in part that “The policy intention is that the 24 month period of ownership can be satisfied through consecutive ownership of businesses, where one main business may not have been owned for the full 24 month period. For example the applicant may have owned ‘Business A’ for 15 months and ‘Business B’ for 9 months.”
Whilst the Tribunal is not bound by Departmental policy, this stated policy intention appears to be more in line with the evident regulatory intention of cl.892.211(1). The allowance made in the regulations for a visa applicant to nominate two main businesses that may be conducted may be explained as providing an allowance that, over the course of two years and for an indeterminate period thereafter (since the applicant is not only required to continue to conduct a nominated main business for these two years, but during any period prior to the Department making a decision and, possibly, as is the case here, until any merits review is determined), business conditions may be such that an initially viable business ceases to be so. The ability to nominate a second main business allows an applicant to change course during this time as conditions may necessitate whilst still meeting the regulatory requirements. The limitation to two main businesses may be explained as a policy position preventing applicants from changing business too frequently, which would render the requirement just that the applicant be in business.
A strict narrow reading, in which any one particular business being conducted must meet this continuity requirement, would have the effect of committing an applicant to whatever activity was undertaken at the time two years prior to the visa application being made until such time as the application is finally determined, which may be some years subsequently.
The Tribunal respectfully agrees with the interpretation adopted in the Departmental policy in that a permissive reading is more appropriate with the evident policy intent in allowing two main businesses to be nominated in the visa application. Therefore, so long as the applicant was conducting at least one of the main businesses on each day for the period in question, the requirement in cl.892.211(1) is met (it is noted that the policy explicitly allows for a discretion where there is a short break between businesses, however, this is not relevant to this matter).

The applicant gave evidence at the hearing that Aramin Air Conditioning operated from 4 February 2014 until 15 September 2015. Kolbeh Persian Cuisine has operated continuously since 16 March 2015. The applicant, through his authorised representative, made a submission prior to the hearing that Kolbeh Persian Cuisine has been operating since April 2014. Where the evidence substantiates the applicant’s submission as to the dates that Aramin Air Conditioning traded, it is immaterial to the decision whether Kolbeh Persian Cuisine has been trading since April 2014, so long as trading commenced prior to 15 September 2015.
Aramin Air Conditioning
The applicant provided a copy of a commercial lease dated 4 February 2014. This lease applied to the street address Unit 55, 41-49 Norcal Road, Nunawading. The lease identifies Aramin as the tenant and is signed by the applicant. The landlord is identified as Makean Holdings Pty Ltd.
This address is listed in the ASIC records as Aramin’s principal place of business between 13 February 2014 and 31 October 2015. The Tribunal regards the slight misalignment between the date of lease (4 February 2014) and the commencement of the principal place of business according to ASIC records (13 February 2014) as immaterial to the decision.
This address is also listed on promotional material for Aramin Air Conditioning as its trading address. The applicant also provided a number of invoices from direct suppliers dated as early as 7 February 2014 identifying the address as Aramin’s premises. A number of invoices were also provided by the applicant from the managing agent fro the property, identifying Makean Holdings Pty Ltd as the landlord and specifying this address as the relevant property. These invoices covered usual commercial lease outgoings, such as rent, water rates, council rates and owners’ corporation levies. The earliest of these invoices is dated 25 February 2014.
The applicant also provided with the application quarterly business activity statements (BAS) covering the period 1 April 2014 to 31 March 2016. The first four of these BASs, covering the period up to 31 March 2015, showed low sales and equated to a loss making venture, as indicated in the financial report for the year ended 30 April 2015. This period coincides with the claimed period of trading for Aramin Air Conditioning (as noted above and analysed further below, the applicant has provided evidence that Kolbeh Persian Cuisine commenced trading in March 2015). The observation that Aramin Air Conditioning traded at a loss is consistent with the oral history provided by the applicant at the hearing, which , as explained at the hearing, was the basis for the decision to cease operations with Aramin Air Conditioning and commence trading in the Persian cuisine business.
The Tribunal notes that cl.892.211(1) requires only that the main business be actively operating. There is no requirement that the business be operating profitably.
The Tribunal also notes that no BAS was provided covering the period 4 February to 31 March 2014. As noted above, documentation has been provided establishing that Aramin incurred outgoings associated with holding a lease over business premises. In the absence of other information, this evidence is equivocal. All businesses must commence at some point and it is unrealistic to expect that sales be generated from the very outset. As noted by the Full Federal Court in Ferguson v Federal Commissioner of Taxation (1979) 37 FLR 310 at 314: “every business has to begin and even isolated activities may in the circumstances be held to be the commencement of carrying on business”. Alternatively, mere preparatory steps may not constitute the commencement of a business, particularly one that would be regarded as “actively operating”.
In this case, Aramin had entered into a commercial lease on 4 February 2014. Outgoings associated with the lease were incurred contemporaneously with this date, but these may be regarded as incurred through obligations arising from the lease rather than business operations. The applicant also provided two invoices from February 2014 that document the purchase of items of furniture, however, these do not necessarily establish that the business had commenced as opposed to the applicant taking steps preparatory to commencing business. The June 2014 Quarter BAS indicates a low level of sales ($391) as well as low expenses ($4,689). Allowing for the inevitable lag between the commencement of a business, this would be consistent with the business commencing operations some time in June 2014.
As the relevant question before the Tribunal is whether the applicant was actively operating a main business at least two years prior to making the visa application (which was made on 4 July 2016), it is only necessary for the Tribunal to determine whether the applicant (or, more specifically, the applicant through an entity in which he had a sufficient ownership interest) had been actively operating a main business by 4 July 2014. Based on the evidence before it, the Tribunal is satisfied that Aramin Air Conditioning was actively operating by June 2014. It is not necessary for the Tribunal to make a finding of any greater precision in this regard. Therefore, the applicant had commenced operating this main business (through Aramin) at least two years prior to the visa application being lodged.
Based on the BASs, the Tribunal is satisfied that Aramin Air Conditioning was actively operating until at least the end of March 2015. The applicant has provided evidence that Aramin Air Conditioning continued trading until 15 September 2015. The only documents before the Tribunal supporting trading occurring beyond March 2015 are an invoice for WorkCover insurance dated 9 May 2015 and the ASIC records indicating that Aramin’s principal place of business remained at Norcal Road, Nunawading until 31 October 2015.
In light of the findings below in relation to Kolbeh Persian Cuisine commencing active operations by March 2015, it is unnecessary for the Tribunal to find definitively the date that Aramin Air Conditioning ceased trading beyond March 2015. In light of the WorkCover invoice, the ASIC records and the applicant’s evidence at the hearing, the Tribunal regards it as more likely than not that Aramin Air Conditioning continued to actively operate until September 2015. However, as noted, it is not necessary for the Tribunal to make a definitive finding beyond Aramin Air Conditioning actively operating beyond March 2015. The Tribunal is, therefore, satisfied that Aramin Air Conditioning was actively operating at least until 31 March 2015.
Kolbeh Persian Cuisine
Most of the applicant’s evidence at the hearing concerned the trading history of Kolbeh Persian Cusine. It is this business that the applicant claims has been actively operating since March 2015 and continues to operate actively to the time of decision.
The applicant submitted that Kolbeh Persian Cuisine commenced trading as a restaurant with a dining area in which members of the public would be served and meals consumed at the business premises.
The applicant provided a copy of a Sale of Business contract dated 3 March 2015, identifying Aramin as the purchaser and signed on Aramin’s behalf by the applicant, with settlement scheduled to take place on 16 March 2015. This is consistent with the applicant’s evidence at the hearing that Kolbeh Persian Cuisine commenced actively operating on 16 March 2015.
The consideration for the transfer of the business is listed as $250,000 (exclusive of goods and services tax). The BAS for the March 2015 Quarter indicates capital purchases were made in that quarter of $312,275, which is considerably higher than capital purchases reported in the previous quarters for which BASs have been provided. This is consistent with the acquisition of this business taking place during the March 2015 Quarter.
The BAS for the March 2015 Quarter also indicates significantly increased sales compared with previous quarters. This is consistent with Aramin (as the reporting entity for BAS purposes) having acquired an established business in which it would be expected that sales would be generated immediately from the existing client base (as opposed to a newly commenced business, such as Aramin Air Conditioning, where it would be expected that there would be a lag between the commencement of operations and sales being generated).
The business premises were identified in the Sale of Business contract as 751-753 Doncaster Road, Doncaster. A transfer of lease was referred to in the Sale of Business contract to effect that transfer to Aramin. A copy of the transfer was provided by the applicant.
The Tribunal notes that Aramin’s principal place of business as reflected in the ASIC records remained at Norcal Road, Nunawading until 31 October 2015, at which point it was altered to Doncaster Road, Doncaster. The Tribunal does not regard this fact as undermining the claim that Kolbeh Persian Cuisine was operating from March 2015, as this is consistent with the applicant’s evidence that Aramin Air Conditioning and Kolbeh Persian Cuisine were operating simultaneously until September 2015. The delay in altering the principal place of business in the ASIC records between September 2015 and October 2015 does not undermine the evidence provided indicating that Aramin was, indeed, trading from the Doncaster Road premises during this period.
The applicant provided invoices from suppliers addressed to Aramin at the Doncaster Road address dated between 1 April 2015 and 26 March 2016. Certificates registering the Doncaster Road premises in Aramin’s name (and trading as Kolbeh Persian Cuisine) that applied to the 2015 and 2016 calendar years were provided. A BYO Permit for the 2015 calendar year issued in Aramin’s name applying to the Doncaster Road premises was also provided. BASs covering the period 1 January 2015 to 30 June 2016 (i.e. the quarters in which it was claimed Aramin operated from the Doncaster Road premises) were also provided, demonstrating active trading.
The applicant provided a Sale of Business contract dated 15 April 2016 which sets out the transfer of the restaurant business located at the Doncaster Road premises, along with the applicable lease, from Aramin to Lee and Park Trading Pty Ltd. The Tribunal notes that the contract does not mention the transfer of the business name (Kolbeh Persian Cuisine), which is consistent with ASIC records provided by the applicant that Aramin continues to own that business name.
At the hearing, the applicant explained that his business strategy had been to operate the restaurant at the Doncaster Road premises whilst also operating a Persian cuisine catering business. The facilities at the Doncaster Road premises were used, in part, for this catering business. As noted below, facilities at other premises were, and continue to be, used for the purpose of operating the catering business. The applicant further explained that his motivation for selling the restaurant business was due to his separation from his wife in 2015, which caused some embarrassment in his community who formed a large part of the restaurant’s clientele. The applicant explained that he ultimately decided to sell the restaurant and focus on the catering business, which did not involve such extensive direct interaction with clients, which took place in April 2016. The applicant provided two statutory declarations dated 23 June 2016 that support this timeline.
Based on the above evidence, the Tribunal is satisfied that Aramin actively operated a restaurant from the Doncaster Road premises between 16 March 2015 and 15 April 2016.
The Tribunal notes that the Department conducted an investigation as described in a letter to the applicant dated 7 August 2017. This letter indicates that at the time of the investigation (noted as September 2016), it was apparent that Aramin was not operating at the Doncaster Road premises based on a check of Google Maps street view. The check revealed that Aramin had transferred the business to the owners of Don’t Tell Mama Korean Restaurant in April 2016.
The letter indicated that the check on Google Maps street view confirmed that Kolbeh Persian Cuisine operated from the Doncaster Road premises as of September 2016. In the absence of further explanation how that was determined, it is difficult to see how this particular check could have determined that fact, since the same letter had noted that Don’t Tell Mama Korean Restaurant operated from those premises as of April 2016. Further, the applicant’s evidence, both at the hearing and supported by the documentation described above, is consistent with Aramin ceasing to operate from the Doncaster Road premises in April 2016 whilst continuing to retain ownership of the Kolbeh Persian Cuisine business name. This timeline is consistent with the Department’s findings, save for the assertion that Kolbeh Persian Cuisine was operating from the Doncaster Road premises as of September 2016.
In light of the above analysis, notwithstanding the Department’s concerns, the Tribunal is satisfied that Aramin actively operated a restaurant from the Doncaster Road premises between 16 March 2015 and 15 April 2016.
The applicant provided evidence at the hearing that Aramin also acquired a business at that time trading under the name of Ivanhoe Chicken Bar. The applicant submitted that Aramin commenced actively operating with this business on 18 March 2015. In support of this submission, the applicant provided a copy of a Sale of Business contract dated 18 March 2015 naming Aramin as the purchaser and signed by the applicant on behalf of Aramin. Settlement was scheduled to take place on 15 April 2015. The Tribunal notes that material provided by the applicant prior to the hearing indicates that the applicant commenced actively operating with Ivanhoe Chicken Bar on 15 April 2015.
The business premises were listed as 233 Upper Heidelberg Road, Ivanhoe.
Further evidence provided by the applicant supporting the claim that Aramin actively operated Ivanhoe Chicken Bar includes two Certificates of Registration of Food Premises issued by Banyule City Council, the first dated 24 June 2015 and the second dated 28 January 2016 relating to the 2015 and 2016 calendar years respectively.
The applicant gave evidence that Aramin ceased operating Ivanhoe Chicken Bar on 27 August 2016. This was supported by a Contract for Sale of Personalty, which stipulates a completion date of 25 August 2016 and identifies Aramin as the vendor, with Empire Taste Pty Ltd as the purchaser. This contract identifies the chattels associated with the Ivanhoe Chicken Bar business, such as cooking equipment, furniture and whitegoods. A transfer of the lease over the Upper Heidelberg Road premises to Empire Taste Pty Ltd was also provided, which was dated 26 September 2016.
At the hearing, the Tribunal queried the relevance of the Ivanhoe Chicken Bar to the applicant’s claim that Aramin had been actively operating a Persian cuisine business. The applicant explained that the primary motivation for acquiring this business was to gain access to the commercial kitchen facilities at the business premises, which were used in Aramin’s Persian cuisine catering business. The applicant conceded that the operation of the chicken bar itself (which continued operations serving the general public during the period of ownership) did not contribute to Aramin’s main business as described in the visa application. However, the applicant emphasised the use of the facilities to support the operations of Kolbeh Persian Cuisine at this time.
Based on the evidence, the Tribunal is satisfied that the premises at 233 Upper Heidelberg Road, Ivanhoe were used to support Aramin’s business Kolbeh Persian Cuisine in the form of its Persian cuisine catering operations between 18 March 2015 and 25 August 2016. While the applicant provided evidence prior to the hearing that these operations continued until 26 September 2016, including the transfer of lease, the Tribunal is satisfied only to the extent of the earlier date of cessation as that coincides with the completion date of the sale of the business chattels, which would have been necessary to maintain cooking operations.
This finding raises the issue of whether the catering activities come within the auspices of the second main business as nominated on the visa application form, namely a restaurant specialising in Persian cuisine. This issue is considered below.
The applicant provided evidence at the hearing that the broad strategy that Aramin followed in operating its catering business was to acquire access to premises with commercial cooking facilities. The use of the premises at Doncaster Road, Doncaster and Upper Heidelberg Road, Ivanhoe as described above were included in this strategy.
The applicant gave evidence at the hearing that since relinquishing the Doncaster Road premises, the catering business was, in part, operated out of the applicant’s personal residence located at Unit 1, 62 Franklin Road, Doncaster East. The Tribunal queried the applicant as to the cooking facilities that would be located at a personal residence for commercial use. The applicant explained that these facilities are used for mainly small catering orders with the available commercial premises being used for larger orders.
ASIC records indicate that the principal place of business for Aramin was altered from 751-753 Doncaster Road, Doncaster (i.e. the premises for the original restaurant) to Unit 1, 62 Franklin Road, Doncaster East (i.e. the applicant’s personal residence) on 22 April 2016. This is consistent with the applicant’s evidence that Aramin would use the applicant’s personal residence as its primary base for operations in the catering business, using other commercial premises (including the Upper Heidelberg Road site) on an as needs basis.
The applicant provided evidence of operations at other premises. This evidence includes:
·Supplier invoices dated in 2015 addressed to Aramin at the Franklin Road premises;
·Variation of business insurance cover from RACV Insurance effective from 21 January to cover premises located at Shop 8/22 Newmans Road, Templestowe;
·Invoice from Manningham City Council dated 16 January 2015 acknowledging the transfer of a food services permit to 1005 Doncaster Road, Doncaster East;
·Invoice dated 22 April 2015 for business insurance coverage from 20 March 2015 to 20 March 2016 over the Franklin Road premises, which specifies the coverage applying to a restaurant business;
·Invoice dated 9 January 2015 for coverage from 14 January 2015 to 14 January 2016 for business insurance relating to a pizza restaurant over 1005 Doncaster Road;
·Certificates of Registration Food Premises for:
-Premises at 34 Newmans Road, Templestowe issued by Manningham City Council for the 2015 calendar year (dated 7 September 2015);
-Premises at 34 Newmans Road, Templestowe issued by Manningham City Council for the 2016 calendar year (dated 22 January 2016);
-Premises at 2/44 Jackson Court, Doncaster East (Jackson Court Shopping Centre) issued by Manningham City Council for the 2017 calendar year (dated 22 December 2016);
-Premises at 71 Railway Road, Blackburn issued by Whitehorse City Council for the 2017 calendar year (dated 13 September 2017);
-Premises at 46 Jackson Court, Doncaster East (Jackson Court Shopping Centre) issued by Manningham City Council for the 2018 calendar year (dated 9 March 2018); and
-Premises at 46 Jackson Court, Doncaster East (Jackson Court Shopping Centre) issued by Manningham City Council for the 2019 calendar year (dated 19 February 2019).
Some of the above Certificates of Registration Food Premises identified different trading names for the relevant businesses to which the certificates applied. The applicant provided ASIC records and an extract from the Australian Business Register demonstrating that Aramin was the owner of these business names at the relevant times.

At the hearing, the applicant emphasised that the purpose of acquiring access to these premises was to access the commercial cooking facilities located at each site, as described above, for the purpose of maintaining the catering business. The applicant submitted that while each premises operated an unrelated food business, the catering business was always maintained through these sites at all times during the timeframe under consideration.
As evidence of continued operations, the applicant provided comprehensive quarterly BASs up to 31 December 2018, which demonstrate activity taking place. Aramin’s income tax returns for the 2016, 2017 and 2018 tax years were provided, which demonstrate activity and identify Aramin’s main business activity as “Restaurant operation”.
The applicant also provided a copy of the catering menu that constitutes the website for the catering business under the name of Kolbeh Persian Cuisine ( The Tribunal’s independent check on 3 September 2019 verified that this website is still operational, thereby providing evidence of ongoing promotion of the catering business.
Based on the above evidence, the Tribunal is satisfied that the catering business continues to operate actively. Therefore, the Tribunal is satisfied that the restaurant/catering business has actively operated from 16 March 2015 until the date of this decision.
Based on the above evidence and analysis, the Tribunal is satisfied that the applicant has been, and continues to actively operate at least one main business relied upon in the visa application from June 2014 until the time of this decision.
Does each business relied on satisfy the definition of ‘main business’ at all relevant points in time?
In order to satisfy the requirements of cl.892.211(1), the business or businesses relied on by the applicant must meet the definition of “main business” at the time of application and during the two years immediately before. Clause 892.221(a) requires that the applicant continues to satisfy this requirement at the time of decision. The term ‘main business’ is defined in r.1.11 of the Regulations and is set out in full in the attachment to this decision. There are four elements to the definition, each of which must be satisfied for a business to be a main business.
Prior to considering the requirements of r.1.11, it is necessary to consider whether the business activities qualify as a “main business” for the purpose of cl.892.211(1) and whether these activities continue to qualify as a “main business” pursuant to cl.892.221(a).
The issue at hand in this matter is whether a potential change in the business activity during the period under review causes the applicant to fail this requirement.
This matter was considered in the context of the former Subclass 845 visa, which had a similarly worded requirement as Subclass 892 in this respect, in the Federal Court in the decision in Liang v Minister for Immigration and Citizenship [2009] FCA 189 (”Liang”). In that decision, the Federal Court held that, to satisfy the requirements of the relevant regulation, the applicant must have maintained a continuous involvement in the main business as nominated in the visa application (see [54] to [59]). This has the implication that the business activity cannot change if it is sought to be relied upon in satisfying the relevant regulation (here, cl.892.211).
The applicant is limited to nominating two main businesses in the visa application pursuant to r.1.11(2). Following Liang, and the findings above, involvement in at least one of those main businesses must have been maintained at all times in the period under review.
In his visa application, the applicant nominated two main businesses, being:
a)Importing and sales of air-conditioning and energy saving devices and equipment; and
b)Restaurant serving authentic Persian cuisines.
As has been noted earlier in these reasons, these businesses were conducted through Aramin rather than in the applicant’s own name. This aspect does not present a difficulty for the applicant to satisfy this requirement.
As concluded earlier, the Tribunal is satisfied that Aramin was operating a business (under the name of Aramin Air Conditioning) between June 2014 and March 2015. This activity fits the description of main business (a) above.
The Tribunal was also satisfied that Aramin was operating a restaurant serving Persian cuisine (under the name of Kolbeh Persian Cuisine) between March 2015 and April 2016. This activity fits the description of main business (b) above).
Therefore, there is no difficulty presented on this aspect for the applicant between June 2014 and April 2016.
The potential difficulty arises with the cessation of the restaurant business in April 2016. The applicant has provided evidence, and the Tribunal has accepted, that Aramin was also operating, and continues to operate, a catering business serving Persian cuisine from March 2015 until the time of this decision.
The issue, therefore, is whether the catering business comes within the description of main business (b) above.
It is important to note that Form 1217, where the visa applicant is required to nominate up to two main businesses to be operated, does not provide any guidance on the manner in which the proposed main business descriptions should be presented or expressed. Rather, the applicant is required to fill in a free form box supplying their own description in their own chosen terms. Care needs to be taken in interpreting the terms in which the business descriptions are expressed. Language, by its very nature, can tend to be imprecise, especially when undertaken by an individual who may not be expected to take especial care with the exact words being used. This concern is heightened if it is acknowledged that the realities of the world often do not fit into precise categories.
This is not to advocate an overly liberal approach to interpreting and applying the content provided on the visa application. Activities that bear no relationship, or even a tenuous relationship, with the description provided should not be viewed through a lens with an intention to try to fit those activities into a description that clearly does not apply.
At the hearing, the authorised representative was invited to make legal submissions on the applicant’s behalf on this matter. In the subsequent submission, the authorised representative did not identify any legal authority that could provide the Tribunal with any guidance on how to address this matter (although a fact based argument was presented, as noted below).
Some guidance as to the appropriate approach is provided in the Federal Circuit Court’s decision in Rahbarinejad v MIBP [2018] FCCA 2293. At [27], the Court stated that:
[W]hatever may have been the entries on the form 1217, the tribunal was required to conduct an inquisitorial investigation into the applicant’s claims. The tribunal’s statutory duty was to assess to complicated elements of cl 892.211 against the complex commercial arrangements of the applicants. The proper discharge of that statutory duty was not limited to minutely scrutinising the entry on the form 1217. It seemed to me that the tribunal was required to investigate the totality of the factual scenario that presented itself to the tribunal (emphasis added).
In light of the Federal Circuit Court’s comments, the Tribunal adopts a sympathetic, although not overly liberal approach to seeing whether the business activities undertaken match the description provided in the visa application form.
In the post-hearing submission, the authorised representative brought to the Tribunal’s attention the relevant industry body, being Restaurant and Catering Industrial (RCI) , covers both restaurants and catering (as the organisation’s name would suggest), indicating that the industry view is that both activities are sufficiently alike to justify a common grouping. In support of the approach adopted, the authorised representative provided a copy of RCI’s submission to the Fair Work Commission (FWC) dated 15 March 2019 as part of the FWC’s annual wage review for that sector. The submission did show that RCI treats the groupings alike as well as indicating that the FWC regards these activities as sufficiently similar as to conduct and apply the ultimate wage review to both groupings alike.

100. The Tribunal’s own inquiries identified that the Australian Bureau of Statistics groups restaurants in with catering services, providing further evidence to justify regarding these activities as equivalent.
101. In light of the recognition that the description provided in the visa application is expressed in ordinary language and the above evidence relating to the general regard from authoritative community sources that restaurants and catering services are, for all practical purposes, equivalent activities, the Tribunal accepts that restaurant and catering activities are equivalent (for these purposes). Further, given that the applicant did qualify the restaurant activity description in the visa application with “serving authentic Persian cuisine” and the catering business does indeed, to the Tribunal’s satisfaction, specialise in serving Persian cuisine, the Tribunal is satisfied that the maintenance of an actively operating catering business comes within the applicant’s description of the second main business as provided in the visa application. Therefore, the issue arising in Liang, in which the visa was refused, inter alia, on the basis that the main business activity did not continue throughout the relevant test period does not apply in this case.
102. Turning attention to the requirements on the face of r.1.11, firstly, the applicant must have or have had an ownership interest in the business. “Ownership interest” is defined in s.134(10) of the Act: r.1.03. If a beneficial interest is relied on for these purposes, certain evidentiary requirements must also be met: r.1.11A. These provisions are set out in full in the attachment to this decision.
103. As noted earlier, the applicant has been a shareholder in Aramin since at least 4 February 2013. ASIC records indicate that this shareholding has been maintained from this date until the time of this decision.
104. Therefore, the Tribunal is satisfied that the applicant has and has had an ownership interest in the business at all relevant times.
105. Secondly, the applicant must maintain or have maintained direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business.
106. ASIC records indicate that the applicant has been a director Aramin since 12 October 2012 and company secretary since 4 February 2013. The applicant’s evidence at the hearing was entirely consistent with the applicant playing an active role in not only the management of the businesses but also participating in the substance of the business. Since the cessation of the restaurant business in April 2016, the BASs provided indicate little or no wages paid despite trading having taken place as evidenced from positive sales figures. This is consistent with the applicant working in the business himself.
107. Consequently, the Tribunal is satisfied that the applicant has maintained and continues to maintain direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business.
108. Thirdly, the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business must meet certain thresholds:
a.if the business is operated by a publicly listed company, the value of the ownership interest must be at least 10% of the total value of the business;
b.if the businesses is not operated by a publicly listed company and the annual turnover of the business is at least AUD400 000, the value of the ownership interest must be at least 30% of the total value of the business;
c.If the business is not operated by a publicly listed company and the annual turnover of the business is less than AUD400 000; the value of the ownership interest must be at least 51% of the total value of the business.

109. As Aramin is not a publicly listed company, category (a) above does not apply.
110. The BASs provided indicate that Aramin never has had annual turnover greater than AUD400,000, therefore, Aramin falls within category (c).
111. As noted earlier, ASIC records are consistent with the applicant having taken a 100% ownership interest in Aramin from 4 February 2013. Therefore, the Tribunal is satisfied that the applicant has had an ownership interest in the business of at least 51%.
112. The Tribunal also notes that, should turnover in any one year have exceeded AUD400,000, this ownership interest also exceeds the 30% minimum ownership requirement in category (b).
113. Finally, the business must be a qualifying business. ‘Qualifying business’ is defined as an enterprise that is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public, and is not operated primarily or substantially for the purpose of speculative or passive investment: r.1.03.
114. All evidence provided indicates that the business involved the provision of goods or services and was not engaged in predominantly passive income earning activities (the only passive income reported in any of the evidence is a nominal amount of interest income in the 2016, 2017 and 2018 company income tax returns). These businesses have been engaged in either selling air conditioning units and like equipment or the provision of food and beverages as part of a restaurant/catering business.
115. Consequently, the Tribunal is satisfied that the business is a qualifying business.
116. Accordingly, the Tribunal is satisfied that the nominated business does meet the definition of main business at all relevant points in time.
117. Given the findings above, the Tribunal is satisfied that cl.892.211(1) is met. The Tribunal has also considered cl.892.211(2).
Australian Business Number and Business Activity Statements

118. Clause 892.211(2) must be satisfied as at the time of visa application. It requires that, for each business to which cl.892.211(1) applies:
a.an Australian Business Number (ABN) has been obtained, and
b.all Business Activity Statements required by the Australian Taxation Office (ATO) for the two years immediately before the visa application was made have been submitted to the ATO and have been included in the application.

119. Records from the Australian Business Register indicate that Aramin obtained an ABN on 12 October 2012.
120. The applicant provided BASs that had been lodged with the ATO for each quarter from the June 2014 Quarter until the March 2016 Quarter. These BASs were provided with the visa application. While the June 2016 Quarter BAS was not provided with the application (it and every other BAS up until the December 2018 Quarter have been subsequently provided), this BAS was not required to have been lodged with the ATO as at the time of application, being 4 July 2016. This BAS was not due for lodgement until 28 July 2016. Therefore, all BASs due for lodgement in the two year period prior to the visa application being lodged were included with the application.
121. Given the findings above, the Tribunal is satisfied that cl.892.211(2) is met. The Tribunal has also considered cl.892.214.
Business activities
122. Clause 892.214 requires that, at the time of the visa application, neither the applicant nor his or her spouse or de facto partner (if any) has a history of involvement in business activities that are of a nature that is not generally acceptable in Australia.
123. There is no information in the Department’s file nor before the Tribunal to indicate that the applicant nor his (former) spouse have a history of involvement in business activities that are of a nature that is not generally acceptable in Australia.
124. The applicant provided police checks from Iran and Australia, both indicating that there were no records of charges or any other criminal complaints made against the applicant in any of these jurisdictions.
125. All documentary evidence and that provided at the hearing make no reference to the applicant being involved in any business activities that are of a nature that is not generally acceptable in Australia at any time up to and including the time of this decision.
126. Given the findings above, the Tribunal is satisfied that cl.892.214 is met. The Tribunal has gone on to also consider cl.892.221(a).
Continuing to meet criteria
127. Clause 892.221(a) requires that the applicant, at the time of this decision, continues to meet the criteria in cl.892.211 and cl.892.214. As cl.892.212(b) is not considered in this decision as it was not addressed in the primary decision, cl.892.221(b) is not relevant.
128. The analysis above has addressed the evidence that the applicant continues to meet the criteria set out in cl.892.211 and cl.892.214. As noted, the evidence indicates that the applicant has continued to meet all the criteria under those clauses up until the time of this decision.
129. Given the above findings, the Tribunal is satisfied that cl.892.221(a) is met.
130. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.
DECISION
131. The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:
a.cl.892.211 of Schedule 2 to the Regulations;
b.cl.892.214 of Schedule 2 to the Regulations; and
c.cl.892.221(a) of Schedule 2 to the Regulations.

Keith Kendall
Member

ATTACHMENT - LEGISLATION
Migration Regulations 1994
1.03Definitions
In these Regulations, unless the contrary intention appears:
…

ownership interest has the meaning given to it in subsection 134(10) of the Act.
…
qualifying business means an enterprise that:
(a) is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public; and
(b)is not operated primarily or substantially for the purpose of speculative or passive investment.

…
1.11Main business
(1)For the purposes of these Regulations and subject to subregulation (2), a business is a main business in relation to an applicant for a visa if:
(a)the applicant has, or has had, an ownership interest in the business; and
(b)the applicant maintains, or has maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business; and
(c)the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business is or was:
(i)if the business is operated by a publicly listed company—at least 10% of the total value of the business; or
(ii)if:
(A)the business is not operated by a publicly listed company; and
(B)the annual turnover of the business is at least AUD400 000;
at least 30% of the total value of the business; or

(iii)if:
(A)the business is not operated by a publicly listed company; and
(B)the annual turnover of the business is less than AUD400 000;
at least 51% of the total value of the business; and

(d)the business is a qualifying business.

(2)If an applicant has, or has had, an ownership interest in more than 1 qualifying business that would, except for this subregulation, be a main business in relation to the applicant, the applicant must not nominate more than 2 of those qualifying businesses as main businesses.

1.11AOwnership for the purposes of certain Parts of Schedule 2
(1)Subject to subregulation (4), for Parts 132, 188, 888, 890, 891, 892 and 893 of Schedule 2, ownership by an applicant, or the applicant’s spouse or de facto partner, of an asset, an eligible investment or an ownership interest, includes beneficial ownership only if the beneficial ownership is evidenced in accordance with subregulation (2).
(2)To evidence beneficial ownership of an asset, eligible investment or ownership interest, the applicant must show to the Minister:
(a)a trust instrument; or
(b)a contract; or
(c)any other document capable of being used to enforce the rights of the applicant, or the applicant’s spouse or de facto partner, as the case requires, in relation to the asset, eligible investment or ownership interest;

stamped or registered by an appropriate authority under the law of the jurisdiction where the asset, eligible investment or ownership interest is located.
(3)A document shown under subregulation (2) does not evidence beneficial ownership, for subregulation (1), for any period earlier than the date of registration or stamping by the appropriate authority.
(4)Beneficial ownership is not required to be evidenced in accordance with subregulation (2) if the person who has legal ownership of the asset, eligible investment or ownership interest in relation to which the applicant, or the applicant’s spouse or de facto partner, has beneficial ownership:
(a)is a dependent child of the applicant; and
(b)made a combined application with the applicant; and
(c)has not reached the age at which, in the jurisdiction where the asset, eligible investment or ownership interest is located, he or she can claim the benefits of ownership of the asset, eligible investment or ownership interest.

Migration Act 1958
134Cancellation of business visas

….
(10) In this section:
….
ownership interest, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.