Latif (Migration) - [2024] AATA 689

Latif (Migration) [2024] AATA 689 (26 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Azam Latif
Mr Masoud Hodaie
Mr Seyedalireza Hodaie
Miss Masoumehsadat Hodaie
REPRESENTATIVE:  Mr Daniel Eskandari (MARN: 0100438)
CASE NUMBER:  2111035
HOME AFFAIRS REFERENCE(S):          BCC2020/1351503
MEMBER:Mary Sheargold
DATE:26 March 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 188.231 of Schedule 2 to the Regulations;
·cl 188.232 of Schedule 2 to the Regulations; and
·cl 188.233 of Schedule 2 to the Regulations.

Statement made on 26 March 2024 at 1:01pm
CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – business innovation extension stream – need to reside in Australia to operate main business – wife’s new business stream under existing company structure established during and after COVID pandemic – studies and long-term lease of premises – husband continuing original business and supporting wife’s business – ownership interest – single corporate entity – business actively operating – low turnover while training staff and growing client base – repetitive, continuous and permanent activities – genuine realistic commitment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 188.231, 188.232(1), (2), 188.233
CASES
Ibrahim v MIAC [2009] FCA 1328
Shahpari v MIBP [2016] FCCA 513
Yang v MIBP [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 Home Affairs on 5 August 2021 to refuse to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 11 April 2020. 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 Extension stream.
The delegate in this case refused to grant the visas on the basis that the first named applicant did not satisfy the requirements of cl 188.231 of Schedule 2 to the Regulations because she did not demonstrate that there was a need for her to be resident in Australia to operate the main business.
The first and second named applicants appeared before the Tribunal on 21 March 2024 to give evidence and present arguments.…

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.

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Details

Case: [2024] AATA 689
Decision Date: 26 March 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Subclass 188 (Business Innovation and Investment (Provisional)) visa, Business Innovation Extension stream, made by Mr Latif. The primary issue before the Tribunal was whether the applicant, through his wife, met the criteria for this visa subclass, specifically concerning the need to reside in Australia to operate the main business, having an ownership interest in that business, and demonstrating that the business was actively operating.

The Tribunal was required to determine if the applicant satisfied clauses 188.231, 188.232, and 188.233 of Schedule 2 to the Migration Regulations. Clause 188.231 mandates that the applicant must demonstrate a need to be resident in Australia to operate their main business. Clause 188.232 requires proof of an ownership interest in the main business, and clause 188.233 concerns the business being actively operating.

The Tribunal found that Mrs Latif, operating under the family's corporate entity, Homaz Pty Ltd, had established a new skin and beauty clinic in Melbourne. Despite initial plans for a real estate consultancy business targeting Iranian-Australian clients, the COVID-19 pandemic significantly impacted its viability. Mrs Latif then pursued studies online and secured a long-term lease for premises to operate the beauty clinic. Her husband continued to manage the real estate business and provided technical support for the new venture. The Tribunal reviewed documentary evidence, including qualifications, customer and staff reviews, and Business Activity Statements, concluding that Mrs Latif was genuinely required to be resident in Australia to operate this new business. Consequently, the Tribunal determined that the criteria under clauses 188.231, 188.232, and 188.233 were met.

Given these findings, the Tribunal remitted the applications for the Subclass 188 visas for reconsideration by the Minister, with a direction that the primary applicant met the specified criteria. The reconsideration was to include the assessment of remaining criteria for the visa and consideration for secondary applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is seeking to satisfy the primary criteria for a Subclass 188 visa in the Business Innovation Extension stream which include the criteria in Subdivisions 188.21 and 188.23 of Schedule 2 to the Regulations. The issue in the present case is whether the applicant meets cl 188.231, cl 188.232, and cl 188.233 of Schedule 2 to the Regulations.Need to be resident in Australia to operate main business – cl 188.231 Clause 188.231 requires the applicant to demonstrate that there is a need for that applicant to be resident in Australia to operate the main business. This is a time of decision criterion. At the hearing, the applicants explained that when this application was considered by the delegate, Mrs Latif and her husband operated a single corporate entity, Homaz Pty Ltd, as an umbrella company for their Australian business ventures, and they were establishing a real estate consultancy business in Australia to supplement their existing real estate businesses operating in Tehran. That is, their main objective was to grow an Iranian- Australian client base and to assist those clients in acquiring or disposing of properties in Iran, especially in circumstances where Iranian Australians had inherited property in Iran they did not wish to retain, as well as to provide assistance for short term and medium term rental assistance for Australians who were travelling to Iran for business or extended personal trips. Mrs Latif explained that the onset of the Covid-19 pandemic decimated the capacity for that business to succeed; nonetheless she remained onshore in Australia to continue her attempts to grow the business while also seeking to establish an alternate business stream under the existing company structure that was set up when the family was granted their first Subclass 188 visas in 2016. Mrs Latif has provided a body of documentary evidence demonstrating that she has branched out away from real estate and into the health and beauty sector, where she has established a successful skin and beauty clinic in Bulleen, Melbourne. The Tribunal has reviewed her qualification certificates, customer reviews, staff reviews, Business Activity Statements and other documents verifying the new business stream established by the family. Mrs Latif told the Tribunal that she undertook the studies necessary for her to be able to perform certain beauty treatments online during the extensive lockdowns in Melbourne over 2020 and 2021, and she has provided a copy of a 9-year lease for the business premises where her clinic is currently operating. Her husband, Mr Hodaie, gave evidence that he continues to manage the real estate business, with varying success, as well as supporting the technical side of Mrs Latif’s newer business. Having reviewed all the new evidence available at review, the Tribunal is satisfied that Mrs Latif is required to be resident in Australia to conduct her skin and beauty business. Therefore, the requirement of cl 188.231 is met.Ownership interest in main business – cl 188.232

Decision

Reasons for decision

Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa, including in relation to the secondary applicants.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 188.231 of Schedule 2 to the Regulations;·cl 188.232 of Schedule 2 to the Regulations; and·cl 188.233 of Schedule 2 to the Regulations.Mary SheargoldMember

Ratio Decidendi

Legal Principle Established

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