Mirsafi Niasar (Migration)

[2020] AATA 956

Mirsafi Niasar (Migration) [2020] AATA 956 (7 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mrs Shahin Sadat Mirsafi Niasar

Mr Mohammadali Najafalihamedani

Mr Miran Najafalihamedani

CASE NUMBER:  1813821

HOME AFFAIRS REFERENCE(S):          BCC2016/4254465

MEMBER:Robyn Anderson

DATE:7 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Residence) (Class DF) visas.

Statement made on 7 January 2020 at 5.15pm.

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) visa – relevant Business Activity Statements submitted to the Australian Taxation Office included in the visa application – main business registered with an Australian Business Number – objective temporal test – net asset criteria – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 54, 55, 65, 359
Migration Regulations 1994, Schedule 2, cls 892.211, 892.212

CASES

Anand v Minister for Immigration And Citizenship {2013) 215 FCR 562
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
Khan v Minister for Immigration [2018] FCAFC 85
Nasirzadeh & Ors v Minister for Immigration & ANOR 2019 FCCA 1115

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 1 May 2018 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 December 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).

3. 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.

4. The delegate in this case refused to grant the visas on the basis that the first named visa applicant (Mrs Niasar) did not satisfy the requirements of cl.892.211(2)(b) of Schedule 2 to the Regulations because she did not provide evidence that all Business Activity Statements in respect of the period 14 December 2014 to 13 December 2016 (the relevant period), had been submitted to the Australian Taxation Office (ATO).

5. The applicant lodged a request for a review of the Department’s decision with the Tribunal on 13 May 2018.  All Business Activity Statements for the relevant period from the ATO portal were provided to the Tribunal on 17 July 2018. The case was constituted to a Tribunal Member and on 12 September 2019, the Tribunal wrote to the applicants under section 359A of the Act, providing particulars for comment or response by 26 September 2019 to certain information which the Tribunal considers would, subject to comments or response, be the reason or a part of the reason for affirming the decisions under review.

6. Clause 892.211(2)(b) of Schedule 2 to the Regulations has two arms to it. The first requires that at the date of application, being 14 December 2016, the Business Activity Statements required by the ATO for the relevant period between 14 December 2014 and 13 December 2016 have been submitted. The second arm requires that the Business Activity Statements required by the ATO for the relevant period between 14 December 2014 and 13 December 2016 be included in the application.

7. The Tribunal raised concern, as according to the Department file, copies of the Business Activity Statements were not included with the application. Rather, they were provided in April 2018, following a written request from the Department in March 2018. The Tribunal noted that if it were to rely on this information in making a decision, it may find that the applicant does not meet the requirement under cl.892.211(2)(b) and affirm the delegate’s decision. The Tribunal also noted the recent case of Nasirzadeh & Ors v Minister for Immigration & ANOR 2019 FCCA 1115 (Nasirzadeh).

8. The Tribunal granted a request by the applicant for an extension of time to respond to 11 October 2019.  The Tribunal received a response from the applicants’ representative on 11 October 2019. The applicants appeared before the Tribunal on 1 November 2019 to give oral evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

9. The applicants were represented in relation to the review.  The representative, Ms Oboodi-Mehr, also attended the hearing and made oral submissions to the Tribunal. The Tribunal deferred making a decision to allow the applicants to make further submissions. The Tribunal granted a further extension of time on 12 November 2019. Additional material was provided to the Tribunal on 26 November 2019.

10. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    ISSUE

11. The issue in this case is whether the applicant meets the primary criteria in cl. 892.21 of the Regulations, being at the time of application.  The requirements under cl. 892.21 are not mutually exclusive and must all be met before the applicant can satisfy the necessary criteria at the time of application.  This means that if any one of the requirements under 892.21 is not met, the visa criteria cannot be met and it is unnecessary for the Tribunal to consider any other issues.

12. Clause 892.211 of the Regulations sets out two main criteria. Firstly, it requires the applicant, for at least two years immediately before the application was made, to have an ownership interest in the main business (cl. 892.211(1) of Schedule 2 to the Regulations). As noted above, the relevant period is 14 December 2014 to 13 December 2016. Secondly, for each of the nominated main businesses, an Australian Business Number must have been obtained (cl. 892.211(2)(a) of Schedule 2 to the Regulations) and, as noted above, the Business Activity Statements required by the ATO in the relevant period be submitted and included in the application (cl. 892.211(2)(b) of Schedule 2 to the Regulations).

13. It is the requirement under cl. 892.211(2) of Schedule 2 to the Regulations that is the central issue in this case. In particular, the requirements set out in cl. 892.211(2)(b) of Schedule 2 to the Regulations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Mrs Niasar gave oral evidence that she has been in the beauty and hairdressing industry for more than 18 years.  She previously ran a training school in Iran.  Upon her arrival in Australia, she established a sole trader business and registered the trading name of ‘Victoria Scissors’ in her sole name, effective 6 March 2014.  Mrs Niasar further stated that she sold her business in Iran to fund her business here in Australia.  She is proud that she has managed to build up a successful hairdressing business over five and a half years. 

15. In the meantime, Mrs Niasar’s son, Mr Miran Najafalihamedani has also gained full qualifications in hairdressing.  In response to a question from the Tribunal, Mrs Niasar stated that her son and husband both work in the business with her.

16. Mrs Niasar nominated Victoria Scissors as “the main business” in her application. For the purpose of assessing the criteria in cl. 892.211(2) of Schedule 2 to the Regulations, the Tribunal considered Victoria Scissors as “the main business”.

    Australian Business Number and Business Activity Statements

17. Clause 892.211(2) of Schedule 2 to the Regulations must be satisfied as at the time of visa application. It requires that, for each business to which cl.892.211(1) applies:

    ·an Australian Business Number has been obtained, and

    ·all Business Activity Statements required by the Australian Taxation Office (ATO) for the two years immediately before the visa application was made have been submitted to the ATO and have been included in the application.

18. There is no question that Victoria Scissors was registered with an Australian Business Number on 20 December 2013 and continues to be registered, thereby satisfying the criterion under cl. 892.211(2)(a) of Schedule 2 to the Regulations. The Tribunal finds accordingly.

19. ATO portal generated Business Activity Statements in the relevant period clearly demonstrate that all Business Activity Statements required by the ATO were submitted prior to the visa application date of 13 December 2016. As discussed at hearing, there is no requirement in the legislation that evidence of lodgement of the Business Activity Statements to the ATO be included with the application. Consequently, the Tribunal finds that the first arm of cl. 892.211(2)(b) of Schedule 2 to the Regulations is met.

20. The second arm of cl. 892.211(2)(b) of Schedule 2 to the Regulations however, requires that copies of the Business Activity Statements, whether generated from the ATO portal, an accountant’s software package or manually prepared forms, be included in the application. This is the central issue in this case.

21. In the case of Nasirzadeh, the applicant lodged a Subclass 892 visa application on 16 September 2014.  On 24 March 2015, the Department requested further information, including copies of all Business Activity Statements for the relevant period.  The Business Activity Statements were provided on 22 May 2015, some eight months after the visa application was lodged.  While the Department refused to grant the application on the basis that no documentation was provided in support of either of the two nominated main businesses or the management and operation of the businesses, a differently constituted Administrative Appeals Tribunal affirmed the decision on the basis of failing to include the Business Activity Statements in the application. 

22. The decision was upheld in the Federal Circuit Court of Australia in Sydney on 22 May 2019.  The court found that cl. 892.211(2)(b) imports an “objective temporal test” as to “whether or not the BAS were included with the visa application.” That is, the Business Activity Statements were either included in the application or they were not. 

23. The court went on to hold that the Regulation importing the test was valid, and that late submission of the Business Activity Statements did not meet the requirement in the Regulation. The court further noted that provision of the Business Activity Statements after the visa application date was not an issue considered by the delegate, as in this case, but was nonetheless a relevant consideration in determination of the application on review. In determining that the Regulation was valid, the court noted:

    “In my view, the criterion in issue serves a clear purpose of requiring applicants for this class of visa to establish business activity as a going concern over a period of two years prior to their visa application.  Further, while there may be harsh consequences, as the applicants have sought to demonstrate in this case, that is not enough to establish invalidity.”

24. According to the Departmental file, Business Activity Statements were provided via email on 18 April 2018, some 16 months after the initial visa application on 14 December 2016.  The email from the representative at the time, Mr Daniel Eskandari of Australian Migration and Education Advice, notes that 15 Business Activity Statements are attached.  The tribunal highlighted the similarities to Nasirzadeh to the applicant at hearing.

25. In response to a question from the Tribunal, Mrs Niasar stated that she relied upon her representative to provide all of the required information to the Department.  She further stated that she does not recall any discussion with the representative following the Department’s letter in March 2018.

26. In addition, tax returns and evidence in support of the financial information in respect of the assets listed on the balance sheet of the Business have not been provided to the Department or the Tribunal, with the exception of the bank balance in December 2016. A letter from the accountant stating that Mrs Niasar meets the net asset criteria does not suffice. As such it is not possible to determine whether or not the Business meets the net asset criteria under cl. 892.212 of Schedule 2 to the Regulations. Mr Najafalihamedani also gave oral evidence that the Business Activity Statements and other financial information were provided to the representative at the outset, yet the representative appears not to have provided them to the Department.

27. The Tribunal took the applicants to clause 12 of  Form 1217 [Business Skills Profile: Business Owner (Residence)] that states,

    “Attach certified copies of all Business Activity Statements submitted to the Australian Taxation Office by any business in which you have an ownership interest in the last 2 years”.

    Mr Najafalihamedani told the Tribunal that he completed the visa application form and knew that the Business Activity Statements were to be included.  He reiterated that they were provided to the representative at the outset and told the Tribunal that he should have emails in support of his submission. Such evidence was not forthcoming.

28. In the initial submission to the Tribunal on 11 October 2019, the representative sought to distinguish this case from Nasirzadeh, noting that the Business Activity Statements had been submitted to the ATO at the time of lodgement and that the Department was prepared to accept evidence of such during the processing of the application. As discussed at hearing, the issue of whether or not the Business Activity Statements were submitted to the ATO is not in question.

29. At hearing, Ms Oboodi-Mehr submitted that an historical pattern exists within the Department that information is accepted after the initial application, including Business Activity Statements. As discussed at hearing, the Tribunal is bound by decisions of the Court and past policy of the Department is not relevant.

30. Furthermore, a Memorandum of Advice from Counsel, Ms G A Costello, dated 11 October 2019 stated that the Business Activity Statements provided on 18 April 2018 “have been included in the application” on the basis of the application of sections 54 and 55 of the Act.  That is, that the decision-maker must have regard to all of the information in the application and that which is provided in the period between application and the making of the decision.  This issue was also raised by Ms Oboodi-Mehr in her submission dated 26 November 2019 after the hearing. 

31. The Tribunal notes that the application of sections 54 and 55 of the Act was raised by the applicant as part of the first of three grounds in Nasirzadeh.  Driver J notes that only the third ground in relation to invalidity was pressed at trial.  Clearly, the first ground was seen as having no basis.  The same issue was addressed in Khan v Minister for Immigration [2018] FCAFC 85.(Khan). This case related to cl. 485.223 of Schedule 2 to the Regulations, also a “time of application” criterion, which requires the application “to be accompanied by” particular evidence. The Court found that the time of application requirement imposed in cl. 485.223 of Schedule 2 to the Regulations was not inconsistent with sections 54 and 55 of the Act and did not result in the clause being invalid. However, any evidence in regard to what occurred after the date of application had no relevance. There was simply an objective test as to whether or not the necessary evidence accompanied the application at the time of lodgement or not. Reference was made to the case of Anand v Minister for Immigration And Citizenship {2013) 215 FCR 562 (Anand), whereby Katzmann J took a broader view that “accompanied” could equate to the supply of information if a close temporal connection with the application remained.

32. In the case of Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (Berenguel), the Court considered the time of application criteria under cl. 885.213 of Schedule 2 to the Regulations. The Tribunal acknowledges the finding that there was nothing to prevent relevant information being submitted to the Minister after lodgement of the application in accordance with section 55 of the Act, as pointed out by Ms Oboodi-Mehr. However, the Court went on to note that this was specifically contrasted to clauses 885.214 and 885.215, which in addition to being time of application criteria, also specifically state that the application is “to be accompanied by” further evidence and noted that no such compliance is expressed in the wording of cl.885.213. In the Tribunal’s view, similarly, there is no express wording in the legislation that proof of submission of the Business Activity Statements to the ATO must be “included in the application”. Consequently, application of section 55 of the Act is appropriate in the Tribunal accepting evidence in respect of the first arm of cl. 892.211(2)(b) of Schedule 2 to the Regulations, that the Business Activity Statements be lodged with the ATO.

33. However, in respect of the second arm of cl. 892.211(2)(b) of Schedule 2 to the Regulations, the wording expressly states very clearly that the Business Activity Statements are to be “included in the application”. “Accompanied by” and “included in” are almost interchangeable in the two noted parts of the legislation. As such, the Tribunal does not accept that application of the second arm of cl. 892.211(2)(b) in the case of Mrs Niasar is any different to that of clauses 885.214 or 885.215 in Berenguel.

34. In any event, in Nasirzadeh, the Court expressly considered cl.892.211(2) of Schedule 2 to the Regulations and found that the Tribunal was required to make a factual finding on whether or not the Business Activity Statements had been “included in” the application as a time of application criterion.

35. Following the hearing, a further submission sought to distinguish this case from Nasirzadeh on the basis that Mr Nasirzadeh had nominated two main businesses and that he failed to provide Business Activity Statements in the relevant period for both businesses. It is noteworthy that one of the nominated main businesses in Nasirzadeh started less than a year before the date of application and therefore the relevant Business Activity Statements for that business did not extend across the entire two-year period prior to the date of application. As noted above, the relevant Business Activity Statements for both businesses were provided some eight months after the visa application was lodged. The issue was that there was no evidence to demonstrate that they were “included in” the visa application, as is the case with Mrs Niasar.

36. The Tribunal accepts that Mrs Niasar and her family have worked hard to build up a successful business in Australia and sympathises with the difficult circumstances in which they find themselves.  The impact of the legislation is particularly harsh if, as submitted by the applicants, it was the initial representative who failed to provide the Business Activity Statements with the application.  Unfortunately, case law dictates that it is the responsibility of the visa applicant to ensure that all required documentary evidence is provided when submitting a visa application (Khan).  It was also noted in Khan that “the test does not turn upon concepts of blameworthiness or deservedness”, nor does the possibility of a harsh outcome impact on the operation of the criteria. 

37. The issue before the Tribunal remains the same.  Were the Business Activity Statements included in the application?  As verified by Counsel in her advice dated 11 October 2019, the Business Activity Statements were provided to the Department on 18 April 2018.  The Tribunal finds accordingly. The Tribunal is not satisfied that provision of the Business Activity Statements in April 2018, has a close temporal connection to the application lodged in December 2016, some 16 months later. This conclusion is supported by Katzmann J in Anand when he determined that a period of five months stretched the term “accompanied by” beyond the intended temporal connection.

1. Accordingly, the Tribunal finds that Mrs Niasar is unable to meet the criterion under cl. 892.211(2)(b) of Schedule 2 to the Regulations. Therefore, it serves no purpose to evaluate the remaining criteria.

2. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

   DECISION

   The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

   Robyn Anderson
   Member