Ghanad (Migration)

[2022] AATA 4177

Ghanad (Migration) [2022] AATA 4177 (10 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bahman Ghanad

CASE NUMBER:  1927155

HOME AFFAIRS REFERENCE(S): BCC2017/1254854 BCC2017/1370900

MEMBER:Antonio Dronjic

DATE:10 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Business Skills (Residence) (Class DF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:

·cl 892.212 of Schedule 2 to the Regulations.

Statement made on 10 October 2022 at 5:19pm

CATCHWORDS
MIGRATION – Migration – Business Skills (Residence) (Class DF) visa – Subclass 892 – requirements concerning Australian employment and assets in the main business are met – applicant had a net value of at least AUD75 000 in the main business at the time of visa application –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360, 375
Migration Regulations 1994, Schedule 2, cl 892.212

CASES
El Jejieh v MHA (No 2) [2019] FCCA 840

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 Home Affairs on 20 September 2019 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 31 March 2017. At the time of application, Class DF contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and Subclass 893 (State/Territory Sponsored Investor). The applicant in this case is seeking to satisfy the criteria for the grant of a Subclass 892 (State/Territory Business Owner) visa, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 892. 212 of Schedule 2 to the Regulations. According to the primary decision record submitted by the applicant with his review application, there was no claim or evidence before the delegate that the appropriate regional authority (State Government of Victoria) has determined the existence of exceptional circumstances. Therefore, the applicant was required to meet at last two of the three requirements prescribed in cl.892.212.

4. The relevant period for the purposes of cl.892.212 is from 31 March 2016 to 30 March 2017 (12 months ending immediately before the application is made). The nominating business is Armus Persia Pty Ltd. The company operated a business Vista Café & Kew Milk Bar located at Power Street, Hawthorn in Victoria. This business was sold on 1 June 2017.

5. On 10 January 2017, the applicant’s company purchased another business named Banou Kebab and Mini Market. On 9 August 2019, the business name was changed to Village Pizza & Kebab. This restaurant is now located at Glenferrie Road, Kew VIictoria. Both businesses traded under Armus Persia Pty Ltd as well as the same Australian Business Number (ABN).

6. The company was registered on 9 August 2011. The applicant is and has been the sole company director since he company incorporation. His ownership stake in the main business first commenced at 60%, before increasing to 95% from 3 March 2016. From that date until the present time, he owns 95% of the company shares. The remaining 5% of the company shares is held by the applicant’s son, Mr Nikan Ghanad.

7. According to the primary decision, the delegate accepted the applicant’s claim that, during the relevant period, the applicant’s assets in the main business exceeded a net value of $75,000 throughout the period of 12 months immediately before the application was made. Accordingly, the delegate found that the applicant met the requirements of cl. 892.212(c).

8. During the relevant period, the applicant’s main business Armus Persia Pty Ltd employed several staff whose combined hours exceeded that which would have been equivalent to one fulltime employee. Of those employees the greatest number of hours worked, were performed by Mr Dee Maurice Chandler. Despite providing Mr Chandler’s Victorian Marine and Firearm Licence, and an Australian Medicare card, the delegate was not satisfied that he is an Australian citizen, Australian permanent resident or New Zealand passport holder as required by cl. 892.212(a)(ii)(B). Accordingly, the delegate found that the applicant does not meet the requirements of cl. 892.212(a).

9. As the delegate found that the applicant’s net business and personal assets were less than $250,000 as of 28 February 2016 as required by cl.892.212 (b), the delegate refused the application because the applicant was required to meet at least two out of three requirements contained in cl.892.212.

10. The applicant lodged the review application with this Tribunal on 26 September 2019 and with the application submitted a copy of the primary decision record. The applicant was represented in relation to the review by his migration agent.

11. On 20 May 2020, the applicant submitted a copy of Mr Chandler’s birth certificate as evidence of his Australian citizenship.

12. On 16 February 2022, the applicant’s representative requested the Tribunal to consider the possibility of making an expedited decision as the relevant information/evidence which objectively satisfies the relevant issues was submitted to the Tribunal on 20 May 2020. It was further submitted that the applicant made several attempts to contact Mr Chandler who eventually informed the applicant that he never applied for an Australian passport and was an Australian citizen by birth.

13. Under s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour based on the material before it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Preliminary matter - Section 375A certificate.

14. The Department issued an undated s.375A non-disclosure certificate in respect of the documents provided to the Tribunal. It was stated that the disclosure of these documents would be contrary to the public interest would be contrary to the public interest because release of this information may endanger the life or physical safety of a person.

15. In El Jejieh v MHA (No 2) [2019] FCCA 840 at [23]– [25] the Court held that unsigned and undated s 375A certificate was invalid because s 375A requires more than a ‘printed name’ but requires a signature (which may be electronic) and a date of the certification. In relation to the date, this is required because a valid delegation in respect of any exercise of power by a delegate under s 496 of the Act to issue a non-disclosure certificate/notification to ascertain whether the particular delegate had the required delegation on the date the certificate/notification was made. Relying on the above authority, Tribunal has taken the view that the s.375A certificate is not valid.

    Requirements relating to applicant’s assets

16. Clause 892.212 requires the applicant to meet certain requirements broadly relating to their assets. This provision does not need to be met if the appropriate regional authority has determined that there are exceptional circumstances. Otherwise, at least two of the following three criteria must be met:

    ·Australian employment (cl 892.212(a)): in the 12 months ending immediately before the visa application was made, the main business(es) in Australia of the applicant, the applicant’s spouse or de facto partner, or the applicant and spouse or de facto partner together employed at least one full time employee over that 12 month period (or employed a number of employees for a total number of hours equivalent to that which would have been worked by one full time employee) who is not the applicant or a member of their family unit and who is an Australian citizen, Australian permanent resident or New Zealand passport holder;

    ·Business & personal assets (cl 892.212(b)): at the time of visa application and throughout the period of 12 months immediately before the time of application, the net value of the business and personal assets in Australia of the applicant, or the applicant’s spouse or de facto partner or their assets combined had a net value of at least AUD250 000. Further, these assets must have been lawfully acquired;

    ·Assets in main business (cl 892.212(c)): at the time of visa application and in the 12 months immediately before the time of application, the total value of the net assets in the main business(es) in Australia of the applicant, or the applicant’s spouse or de facto partner, or the applicant and his spouse or de facto partner together have a net value of at least AUD75 000. Further, these assets must have been lawfully acquired.

17. There is no evidence before the Tribunal that the appropriate regional authority has determined that there are exceptional circumstances in this case. Accordingly, the Tribunal has considered whether the substantive requirements of this criterion are met. The applicant has submitted that the requirements concerning Australian employment and assets in the main business are met.

18. Based on the evidence before it, including the payroll employee summary from 1 March 2015 to 28 February 2016, from 1 March 2016 to 28 February 2017, PAYG payment summaries, payslips and other evidence of employment provided to the Department by the applicant, the Tribunal is satisfied that the applicant employed several staff who were not members of the applicant’s family unit and whose combined hours exceeded that which would have been worked by one full time employee. In particular, the Tribunal is satisfied that Mr Chandler, who is an Australian citizen, was employed by the applicant’s business from 1 April 2016 to 31 March 2017.

19. The representative submitted and the Tribunal accepts that Mr. Chandler was born in Australia (on 14 July 1975) and that prior to 20 August 1986 and regardless of the parents' immigration status, all babies born in Australia before that date became Australian citizens. The Tribunal verified this information to be correct at the Department of Foreign Affairs and Trade webpage. Accordingly, Mr. Chandler’s birth certificate issued by an Australian Registry of Births, Deaths and Marriages is accepted by this Tribunal as evidence of his Australian citizenship.

20. Based on the above findings, the Tribunal is satisfied that the applicant meets cl.892.212 (a) (i) and (ii).

21. Based on the financial statements for Armus Persia Pty Ltd as of 28 February 2017 and 28 February 2016 provided to the Department, the Tribunal is satisfied that at the time of visa application and in the 12 months immediately before the time of application the applicant had the following net assets in the business:

    Asset as of 28 February 2017

    AUD253,306 (based on 95% ownership)

    Assets as of 28 February 2016

    AUD99,667 (based on 60% ownership)

22. As the applicant had a net value of at least AUD75 000 in the main business at the time of visa application and in the 12 months immediately before the time of application, it follows that the applicant satisfies both cl.892.212(c) (i) and (ii).

23. There is no evidence before the Tribunal to indicate that these assets have been unlawfully acquired by the applicant. Accordingly, the applicant meets cl.892.212 (c) (iii).

24. Given the findings above, the Tribunal is satisfied that cl 892.212 (a) and (c) are both met. The appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    decision

25. The Tribunal remits the application for a Business Skills (Residence) (Class DF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 892 visa:

    ·cl 892.212 of Schedule 2 to the Regulations

    Antonio Dronjic
    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.

    1.11A Ownership 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.