Keivanpour (Migration)

[2024] AATA 932

Keivanpour (Migration) [2024] AATA 932 (3 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mehrdad Keivanpour
Mrs Nastaran Khajeni
Ms Yasna Keivanpour
Mr Kasra Keivanpour

REPRESENTATIVE:  Dr Sirous Ahmadi (MARN: 0854826)

CASE NUMBER:  2208231

HOME AFFAIRS REFERENCE(S):          BCC2020/2667546

MEMBER:Robyn Anderson

DATE:3 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Business Skills (Provisional) (Class EB) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:

·cl 188.222 of Schedule 2 to the Regulations.

Statement made on 3 April 2024 at 3.00pm.

CATCHWORDS

MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 Business Innovation and Investment (Provisional) – Business Innovation stream – business innovation and investment points test – financial asset qualifications – revised Statement of Assets and Liabilities – properties purchased for redevelopment – net business assets – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 188.222; Schedule 7A; r 1.03

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 23 May 2022 to refuse to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants were granted Subclass 188 (Business Innovation and Investment (Provisional) visas in June 2016.  However, due to unforeseen family circumstances it was necessary for the family to return to Iran.  The applicants then submitted an expression of interest for a Subclass 188 (Business Innovation and Investment (Provisional) visa on 23 March 2020. The applicants applied for the visa on 19 November 2020, following an invitation to apply on 23 September 2020.

3. Class EB contains Subclass 188 (Business Innovation and Investment (Provisional)). The criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. The primary criteria include common criteria, and criteria set out in streams. In this case, the first named visa applicant (‘the applicant’) applied for the visa in the Business Innovation stream.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 188.222 of Schedule 2 to the Regulations. This required the applicant’s score on the business innovation and investment points test to be not less than the number of points specified by the Minister in an instrument in writing for this subclause.

5. The relevant instrument, LIN 22/083, stipulates that the minimum number of points in respect of the Business Innovation and Investment (Provisional) visa under the business innovation and investment points test is 65 points.  The Tribunal notes that the previous instrument, IMMI 12/041, stipulates the same number of points. The delegate found that the applicant’s score was 50 points.

6. The Tribunal received a review application from the applicant on 6 June 2022.  Information and submissions were received by the Tribunal on 12 May 2023. On 13 February 2024, the Tribunal wrote to the applicants via their representative to invite them to attend a hearing on 8 March 2024. Further submissions and supporting documents were received by the Tribunal on 28 February 2024 and 6 March 2024.

7. The applicants appeared before the Tribunal in person on 8 March 2024 to give evidence and present arguments on affirmation.

8. The applicants were represented in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

9. On 8 March 2024, the Tribunal deferred making a decision in this matter to allow additional time for the applicants to provide further submissions and evidence.  Additional information was provided to the Tribunal on 13 March 2024.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this matter is in regard to the number of points achieved by the applicant on the business innovation and investment points test. Clause 188.222 states as follows:

    188.222
    (1) The applicant’s score on the business innovation and investment points test is not less
    than the number of points specified by the Minister in an instrument in writing for this
    subclause.
    (2) For subclause (1):
    (a) an applicant’s score on the business innovation and investment points test is the
    sum of the applicant’s scores under Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8, 7A.9
    and 7A.10 of Schedule 7A; and
    (b) the Minister must not give the applicant the prescribed number of points for more
    than one prescribed qualification in Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8 and
    7A.10 of Schedule 7A; and
    (c) if the applicant’s circumstances satisfy more than one prescribed qualification in
    Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8 and 7A.10 of Schedule 7A, the Minister
    must give the applicant points for the qualification that has been satisfied that attracts the highest number of points.

12. Relevantly, under the Business Innovation stream, cl 188.222(2) provides that the applicant’s score in relation to a Business Innovation and Investment visa is the sum of the scores applied under Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.7, 7A.8, 7A.9 and 7A.10 of Schedule 7A to the Regulations. 

13. A written submission from the applicants’ representative, received by the Tribunal on 28 February 2024 clarified that there was no dispute in respect of the points applied to Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.8, 7A,9 and 7A.10 by the delegate.  The Tribunal considered the evidence before it and also concurs. 

14. The contentious issue lies in respect of Part 7A.7, in relation to financial asset qualifications. As set out in the table below, the applicant claims that his score on the business innovation and investment points test is more than 65. 

Qualifications	Delegate’s findings	Applicant’s claims
7A.2 Age	15	15
7A.3 English language	0	0
7A.4 Educational	0	0
7A.5 Business Experience	15	15
7A.7 Financial Assets	5	35
7A.8 Business Turnover	15	15
7A.9 Business Innovation	0	0
7A.10 Special Endorsement	0	0
TOTAL POINTS	50	80

Part 7A.7 – financial asset qualifications

1. As the applicant was invited to apply for the visa prior to 1 July 2021, the delegate found that the applicant’s score was 50, on the basis that the net value of the business and personal assets of the applicant, the applicant’s spouse, or the applicant and the applicant’s spouse together, was not less than AUD800,000 in each of the two fiscal years immediately before the time of invitation.

2. Fiscal year, as stipulated in Schedule 7A to the Regulations, is defined in reg 1.03 of the Regulations as follows:

   "fiscal year " , in relation to a business or investment, means:

   (a)  if there is applicable to the business or investment by law an accounting period of 12 months--that period; or

   (b)  in any other case--a period of 12 months approved by the Minister in writing for that business or investment.

3. Therefore, in respect of Schedule 7A to the Regulations, two fiscal years refers to the 12-month accounting periods stipulated in Iran, where the businesses were operating (reg 1.03(a)). Therefore, the undisputed relevant period commences on 21 March 2018 and ends on 20 March 2020.      

4. In respect of Part 7A.7, the applicant provided a revised Statement of Assets and Liabilities to the Tribunal in respect of the fiscal years ending 20 March 2018, 20 March 2019 and 20 March 2020 prior to hearing and a further revised Statement of Assets and Liabilities to the Tribunal in respect of the fiscal year ending 20 March 2018 after the hearing.  Each statement included an additional property in which the applicant held a 50% ownership interest (otherwise referred to as property E) that had not been included with the information provided to the Department.  This was because the applicant had felt confident that he met the net asset qualifications without including details of other assets such as additional property and luxury motor vehicles.

5. Information provided to the Department included four other properties, otherwise referred to as Property A, Property B, Property C and Property D.  As it is undisputed that the applicant did not take ownership in Property A until 28 April 2020, it is also accepted that ownership did not exist for the entire two fiscal years immediately before the time of application on 23 September 2020, as required.  Consequently, Property A was correctly not included in the Statements of Assets and Liabilities provided to the Tribunal prior to hearing. The shortfall in points was largely due to the treatment of Property B.

6. The applicant confirmed the written submission at hearing in relation to Property B.  When the applicant and his business partner each purchased .65 of six parts of five apartments in October 2012 and May 2013, verified by title deeds before the Tribunal, the intention was to demolish the apartments and develop 20 new apartments.  This occurred and the construction was completed on 23 February 2019.  Each of the five apartments were partitioned from the main lot and six of six parts of one of the new apartments, including two parking spaces and a storage room was partitioned and registered to the applicant on 23 July 2019, as verified by a title deed before the Tribunal.

7. The Tribunal also had before it the Letter of Division and Partitioning Minutes, dated 9 July 2019 and a valuation appraisal from Eng.Peyman Jabiri, an official judicial expert – road and construction and surveying in relation to Property B at 20 March 2018, 20 March 2019 and 20 March 2020.

8. In relation to Property C the Tribunal had before it the title deed recording the applicant’s ownership since 29 December 2013 of 460 of 8,490.5 parts and a valuation appraisal from Eng.Peyman Jabiri, at 20 March 2018, 20 March 2019 and 20 March 2020.

9. In relation to Property D the Tribunal had before it the title deed recording the applicant’s spouse’s ownership since 8 March 2015 of 110 of 10,800 parts and a valuation appraisal from Eng.Peyman Jabiri, at 20 March 2018, 20 March 2019 and 20 March 2020.

10. In relation to Property E the Tribunal had before it the title deed recording the applicant’s ownership since 28 May 2016 of three out of six parts and a valuation appraisal from Eng.Peyman Jabiri, at 20 March 2018, 20 March 2019 and 20 March 2020.

11. The Tribunal examined the financial statements in respect of Mehrdad Keivanpour Construction Services (the sole trader business) as at 20 March 2018, 20 March 2019 and 20 March 2020.  None of the items were remarkable other than the intangible asset value of less than AUD2,000. The Australian Accounting Standards Board (AASB) defines an ‘asset’ as something from which future economic benefits are expected to flow to the entity.  An intangible asset in the form of ‘Communication lines and system’ was recorded as an intangible asset.  It is evident that the value is not being amortised over time and is likely to continue to represent some future benefit and/or value to the sole trader business. Accordingly, the Tribunal finds it appropriate to accept the net assets recorded on the balance sheet without any adjustment. In any event the value is immaterial in this case.

12. The Tribunal discussed each of the Statement of Assets and Liabilities with the applicant in turn at hearing.

13. In relation to the fiscal year ending on 20 March 2018, the applicant provided the following details after the hearing, noting that the Ayandeh bank account was omitted and the net business assets value reduced.

ASSET

IRR

Property B - ownership by the applicant of 3.25 of 30 parts

55,000,000,000

Property C – ownership by the applicant of 460 of 8,490.5 parts

15,000,000,000

Property D – ownership by the applicant’s spouse of 110 of 10,800 parts

3,000,000,000

Property E – ownership by the applicant of 3 of 6 parts

18,000,000,000

Net business assets:

 Mehrdad Keivanpour Construction Services (the sole trader business)

48,574,734,321

Total net assets

139,574,734,321

Conversion rate at 20 March 2018

28,967

NET VALUE OF BUSINESS AND PERSONAL ASSETS IN AUD

4,818,404

1. The applicant acknowledged that the Ayandeh bank account was in fact that of the sole trader business and was therefore already included in the net business assets of IRR48,574,734,321.  The balance of the Ayandeh account corresponded to the bank value recorded on the balance sheet of the sole trader business at 20 March 2018 and was correctly excluded from the total net asset value.

2. In relation to each of Property B, C, D and E, the Tribunal accepts the valuation of the properties by Eng.Peyman Jabiri at 20 March 2018, noting that they are slightly rounded up.  For example the applicant’s 10.38% ownership portion of Property B is IRR54,983,076,090, rounded up to IRR55,000,000,000. However, this rounding up has no impact on the overall outcome.

3. In relation to the net business assets, as discussed at hearing, based on the balance sheet included in the audited financial statements of the sole trader business at 20 March 2018, the net assets are represented by the total assets less the total liabilities.  That is, IRR55,600,343.315 – IRR7,025,608,994 or IRR48,574,734,321.

4. Accordingly, the Tribunal finds that the net business and personal assets of the applicant, the applicant’s spouse or the applicant and the applicant’s spouse together at 20 March 2018 was AUD4,818,404.

5. In relation to the fiscal year ending on 20 March 2019, the applicant provided the following details:

ASSET	IRR	Conversion rate 20/03/2019	AUD
CBA account – 100% applicant	186,780
NAB account − 100% applicant	139,609
Property B − ownership by the applicant of 3.25 of 30 parts	82,300,000,000	29,843	2,757,766
Property C – ownership by the applicant of 460 of 8,490.5 parts	18,030,000,000	29,843	604,162
Property D – ownership by the applicant’s spouse of 110 of 10,800 parts	3,230,000,000	29,843	108,234
Property E – ownership by the applicant of 3 of 6 parts	21,500,000,000	29,843	720,437
Net business assets:  Mehrdad Keivanpour Construction Services (the sole trader business)	1,741,616,893	29,843	58,359
NET VALUE OF BUSINESS AND PERSONAL ASSETS	4,575,347

1. The CBA and NAB bank statements held in the name of the applicant were before the Tribunal.  The statement balances at 30 March 2019 corresponded exactly to the amount recorded in the Statement of Assets and Liabilities.

2. In relation to each of Property B, C, D and E, the Tribunal accepts the valuation of the properties by Eng.Peyman Jabiri at 20 March 2019, noting that they are slightly rounded up.  The Tribunal also notes the typographical error in respect of Property C and is satisfied that ownership is as per the title deed being 460 parts of 8,490.5 and not 4,890.5.

3. In relation to the net business assets, as discussed at hearing, the Tribunal accepts the balance sheet included in the audited financial statements of the sole trader business at 20 March 2019.  The net assets are represented by the total assets less the total liabilities.  That is, IRR3,301,908,724 - IRR1,560,291,831 or IRR1,741,616,893. 

4. Accordingly, the Tribunal finds that the net business and personal assets of the applicant, the applicant’s spouse or the applicant and the applicant’s spouse together at 20 March 2019 was AUD4,575,347.

5. In relation to the fiscal year ending on 20 March 2020, the applicant provided the following details.  While the net assets were converted to AUD8,215,878, the Tribunal notes an arithmetic error and the correct total is AUD8,216,878.  There was also a small discrepancy between the balance on the CBA bank statement and the value recorded on the Statement of Assets and Liabilities.  The Tribunal prefers the bank statement value as recorded in the bank statements before the Tribunal.

ASSET	IRR	Conversion rate 20/03/2019	AUD
CBA account – 100% applicant	371,977
NAB account − 100% applicant	156,793
Property B − ownership by the applicant of 3.25 of 30 parts	137,180,000,000	25,266	5,429,431
Property C – ownership by the applicant of 460 of 8,490.5 parts	25,760,000,000	25,266	1,019,552
Property D – ownership by the applicant’s spouse of 110 of 10,800 parts	4,620,000,000	25,266	182,854
Property E – ownership by the applicant of 3 of 6 parts	24,500,000,000	25,266	969,683
Net business assets:  Mehrdad Keivanpour Construction Services (the sole trader business)	2,186,477,632	25,266	86,538
NET VALUE OF BUSINESS AND PERSONAL ASSETS	8,216,828

1. In relation to each of Property B, C, D and E, the Tribunal accepts the valuation of the properties by Eng.Peyman Jabiri at 20 March 2020, noting that they are slightly rounded up.  The Tribunal also notes the typographical error in respect of Property C and is satisfied that ownership is as per the title deed being 460 parts of 8,490.5 and not 4,890.5.

2. In relation to the net business assets, as discussed at hearing, the Tribunal accepts the balance sheet included in the audited financial statements of the sole trader business at 20 March 2020.  The net assets are represented by the total assets less the total liabilities.  That is, IRR3,343,599,241 - IRR1,157,121,609 or IRR2,186,477,632. 

3. Accordingly, the Tribunal finds that the net business and personal assets of the applicant, the applicant’s spouse or the applicant and the applicant’s spouse together at 20 March 2020 was AUD8,216,828.

4. Based on the findings above, the Tribunal finds that the net business and personal assets of the applicant, the applicant’s spouse, or the applicant and the applicant’s spouse together, was more than AUD2,250,000 in each of the two fiscal years immediately before the time of invitation.

5. Therefore, as the net business and personal assets of the applicant, the applicant’s spouse, or the applicant and the applicant’s spouse together, were more than AUD2,250,000 and the applicant was invited to apply for the visa before 1 July 2021, the Tribunal finds that the applicant is to be awarded 35 points in accordance with Item 7A74 of Part 7A.7 of Schedule 7A to the Regulations.  

6. Based on the undisputed points in respect of Parts 7A.2, 7A.3, 7A.4, 7A.5, 7A.8, 7A.9 and 7A.10 and the Tribunal’s findings in respect of Part 7A.7, the Tribunal calculated the points awarded to the applicant on the points test to be as follows:

Qualifications	Tribunal’s findings
7A.2 Age	15
7A.3 English language	0
7A.4 Educational	0
7A.5 Business Experience	15
7A.7 Financial Assets	35
7A.8 Business Turnover	15
7A.9 Business Innovation	0
7A.10 Special Endorsement	0
TOTAL POINTS	80

1. As the sum of the applicant’s score on the business innovation and investment points test of 80 points exceeds the required 65 points, as set out in LIN22/083 for the purposes of the points test under Schedule 7A to the Regulations, the Tribunal finds that cl 188.222 of Schedule 2 to the Regulations is met.

2. It is therefore appropriate for the Tribunal to remit the matter to the Department to consider the remaining criteria for the grant of the Subclass 188 visa.

1. The Tribunal finds that as the second, third and fourth named applicants applied on the basis of being family unit members of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

   DECISION

2. The Tribunal remits the applications for Business Skills (Provisional) (Class EB) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:

   ·cl 188.222 of Schedule 2 to the Regulations.

   Robyn Anderson
   Member