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…

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.

Continue reading Forough Bakhsh (Migration)

Details

AGLC: Forough Bakhsh (Migration) [2019] AATA 6708
Case: [2019] AATA 6708
Decision Date: 28 October 2019

CaseChat Overview and Summary

This matter concerned an appeal by Forough Bakhsh against a decision of the Department of Immigration and Border Protection regarding a Subclass 892 (State/Territory Sponsored Business Owner) visa. The central dispute revolved around whether the applicant had continuously operated a main business in Australia for the requisite period, as stipulated by the migration regulations.

The primary legal issues before the Tribunal were whether the applicant possessed the required ownership interest in actively operating main businesses in Australia for at least two years prior to the visa application and at the time of the application, and whether this criterion continued to be met at the time of the Tribunal's decision. This involved determining the nature of the applicant's interest in the nominated businesses, whether those businesses were actively operating, and if they qualified as "main businesses" throughout the relevant periods. A preliminary issue also arose concerning the role of the company Aramin Pty Ltd, the entity through which the businesses were operated, and whether it was correctly identified as the sole main business or as a parent company holding interests in separate trading entities.

The Tribunal considered the requirements of clause 892.211 and 892.221 of the Migration Regulations, which mandate an ownership interest in actively operating main businesses. The applicant nominated two businesses, Aramin Air Conditioning and Kolbeh Persian Restaurant, operated through Aramin Pty Ltd. The Tribunal noted a potential conflict in the Department's interpretation of Aramin as a passive parent company versus the applicant's nomination of two distinct trading businesses. The Tribunal's analysis focused on the nature of Aramin's involvement and the operational status of the nominated businesses to determine compliance with the visa criteria.

Ultimately, the Tribunal concluded that the matter should be remitted for further consideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.