Jamshidilarijani (Migration) - [2023] AATA 961

Jamshidilarijani (Migration) [2023] AATA 961 (17 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mehrdad Jamshidilarijani
Ms Hamta Shaker
Miss Aila Jamshidilarijani
Miss Iran Jamshidilarijani
REPRESENTATIVE:  Mr Navid Koushke Baghi (MARN: 1681603)
CASE NUMBER:  2002695
HOME AFFAIRS REFERENCE(S):          BCC2018/3259892
MEMBER:Peter Ranson
DATE:17 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:
· Clauses 892.211, 892.212, 892.213, 892.214 and 892.221 of Schedule 2 to the Regulations.
Statement made on 17 April 2023 at 8:46am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – ownership interest in actively operating main business for two years before application made – online supplier before physical business opened – net business assets – funds lawfully acquired in home country – unsecured loan to associate – revised financial statements rectify errors – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(10)
Migration Regulations 1994 (Cth), rr 1.03, 1.11, 1.11A(1), Schedule 2, cls 892.211, 892.212(c), 892.221(a), 892.321

CASES
Drake and MIEA (No 2) (1979) 2 ALD 634
Ibrahim v MIAC [2009] FCA 1328
Lee v MIAC [2009] FCA 977
Shahpari v MIBP [2016] FCCA 513
Yang v MIBP [2014] FCCA 1576

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Mr Jamshidilarijani (aka Mr Jamshidi) travelled to Australia in 2012. He began bringing his assets here from 2014 and in 2016 he set up a business selling coffee, tea and herbs sourced internationally. The business is called Earth Espice Bulleen, which Mr Jamshidi operates through JMHAA Pty Ltd. In 2018 he applied for Subclass 892 visas for himself and his family and nominated Earth Espice Bulleen as his main business.
The shares in JMHAA are held by Mr Jamshidi and his family including an adult daughter who holds 15%. That meant 85% of the net assets could be ascribed to him. When they assessed the net business assets of Mr Jamshidi, the Department of Home Affairs refused to grant the visas because the amount was less than $75,000 as required by the relevant regulation.
The main issues to be decided in this case are whether Mr Jamshidi held an ownership interest in a main business at the appropriate time, met his obligations to prepare and lodge business activity statements and had net assets in his business of at least AUD$75,000.
The secondary issues to be decided are whether the business met its employment obligations, achieved turnover of at least AUD$200,000 and continues to operate at the time of this decision. It will also be necessary to consider whether Mr Jamshidi and Mrs Shaker engaged in business activities not generally acceptable in Australia.
For the following reasons, the Tribunal has decided the matter should be remitted for reconsideration.

PROCEDURAL HISTORY

On 4 September 2018,…

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.

Keep reading for free

Create a free CaseChat account to read Jamshidilarijani (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 961
Decision Date: 17 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) considered an appeal by Mr Jamshidilarijani concerning the refusal of his Business Skills (Residence) (Class DF) visa, specifically the Subclass 892 (State/Territory Sponsored Business Owner) visa. The primary dispute revolved around whether Mr Jamshidilarijani met the requirements for ownership interest in an actively operating main business for two years prior to his application, and whether he possessed the requisite net business assets, including funds lawfully acquired in his home country. The Tribunal also had to consider the validity of an unsecured loan to an associate and the impact of revised financial statements intended to rectify earlier errors.

The central legal issues before the Tribunal were: firstly, whether Mr Jamshidilarijani's online supplier activities constituted an "actively operating main business" for the required two-year period before his application, particularly in light of the subsequent opening of a physical business; secondly, whether the net business assets he claimed were sufficient and properly evidenced, including the lawfulness of funds originating from his home country; and thirdly, the legal effect of an unsecured loan to an associate on his overall asset position. The Tribunal also had to determine if revised financial statements could validly rectify errors in the original application documentation.

The Tribunal found that the applicant's online supplier activities, undertaken before the physical business commenced operations, could be considered part of an actively operating main business. It acknowledged that revised financial statements could rectify errors, provided they accurately reflected the applicant's financial position. However, the Tribunal identified deficiencies in the evidence presented regarding the lawfulness of the funds in the applicant's home country and the nature of the unsecured loan to an associate, which impacted the assessment of his net business assets. Consequently, the Tribunal remitted the decision to the delegate for reconsideration, requiring further evidence and assessment on these specific points.

Orders