Mohammadi (Migration)

Mohammadi (Migration) [2019] AATA 6128 (18 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:
Mr Mohammadali Mohammadi

Mrs Azarmidokht Dehghan Ghaleh

Mr Nima Mohammadi

Mr Omid Mohammadi

Mr Mohammadreza Mohammadi
CASE NUMBER:  1804102
HOME AFFAIRS REFERENCE(S): BCC2016/2904045 BCC2016/3437907 BCC2016/3438008 BCC2018/1458984 BCC2018/160664
MEMBER:Mary Sheargold
DATE:18 October 2019
PLACE OF DECISION:  Melbourne
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:
·cl.892.212 of Schedule 2 to the Regulations; and
·cl.892.221(b) of Schedule 2 to the Regulations.

Statement made on 18 October 2019 at 4:44pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) visa – maintaining direct involvement in the business management – applicant not residing in Australia – genuine business – import/export business required frequent presence in Iran to secure deals – Australian business and personal assets at least AUD250,000 – director’s loans to the main business – assets in the main business – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 892.212, 892.221; rr 1.03, 1.11
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 31 January 2018 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 26 September 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). 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.
The delegate in this case refused to grant the visas on the basis that the first named visa applicant (the applicant) did not satisfy the requirements set out in cl.892.212(a) and cl.892.212(b) of Schedule 2 to the Regulations, and therefore cl.892.212 was found not to be met.
The applicants appeared before the Tribunal on 1 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Iraj Afrooz, the applicants’ accountant. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicants were represented in relation to the review by Dr Sirous Ahmadi. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
Non-disclosure certificate issued pursuant to s.376 of the Act
On 3 April 2019, the Department issued a non-disclosure certificate pursuant to s.376 of the Act (the Certificate) in relation to TRIM reference number OPD2019/155390 of file number BCC2018/1601664 of the Departmental file as provided to the Tribunal. The Department claimed that disclosure of this material would be contrary to the public interest because it may “disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.”
On 20 August 2019, the Tribunal wrote to the applicant stating that the Tribunal found the Certificate to be valid, and invited him to comment on the validity of the Certificate. In that letter, the Tribunal informed the applicant that the Tribunal had the discretion to disclose the information that is subject to the Certificate to the applicant, and noted that the material protected was a transcript of correspondence received from an anonymous member of the public alleging that the applicant did not live in Australia. The Tribunal noted that it considered the document to be relevant to the review, and offered the applicant an opportunity to seek a favourable exercise of the Tribunal’s discretion in s.376(3)(b) of the Act to disclose the material to him.
The letter stated that if the applicant wished to make any submissions in relation to the validity of the Certificate and/or as to why the information the subject of the Certificate should be disclosed to him, he should do so in writing by 3 September 2019.
On 30 August 2019, the applicant’s representative wrote to the Tribunal and stated that the applicant respected both the Department and the Tribunal’s decision in relation to the validity of the Certificate, and made no comment on that matter.
The Tribunal finds the Certificate to be valid and does not exercise its discretion in s.376(3)(b) of the Act to disclose the material the subject of the Certificate to the applicant.
Invitation to comment on or respond to information pursuant to s.359A of the Act
In its letter dated 20 August 2019, the Tribunal invited the applicant to comment on or respond to certain information that the Tribunal considered would, subject to the applicant’s comment or response, be the reason, or a part of the reason, for affirming the decision under review. The particulars of the information were set out as follows:
·that the applicant lives in Tehran and not in Australia; and
·that his import/export business is not genuine.
The letter told the applicant that this information was relevant to the review because it may indicate that the applicant had not maintained, and/or he was not maintaining, direct and continuous involvement in the management of his business from day to day, and in making decisions affecting the overall direction and performance of his business. The letter told the applicant that in order for the Tribunal to be satisfied that cl.892.211 and cl.892.221 can be met, it must be satisfied that the applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the visa application was made and that the applicant continues to meet that requirement at the time the Tribunal makes its decision in relation to this application.
The letter told the applicant that if the Tribunal relies on this information, being that the applicant ordinarily resides in Tehran and not Australia, and that the applicant’s business is not genuine, the Tribunal may form the view that this information is adverse. The letter told the applicant that if so, unless the Tribunal considers it would be reasonable to disregard it, this would be the reason, or a part of the reason, for affirming the decision under review.
On 30 August 2019, the applicant’s representative responded to the information with detailed submissions accompanied by 82 supporting documents. Of key importance, the Tribunal notes the submissions that the nature of the applicant’s import/export business is such that he was required to be in Iran for periods of time in order to secure business deals. The representative also argued that the applicant had cause to be in Iran in order to liquidate his real property assets in Tehran due to issues regarding sanctions placed on Iran and tensions between Iran and the United States of America. The submissions note that since the applicant lodged this visa application, he has been able to engage in 3 significant imports of pistachios to Australia as well as 3 significant exports of meat products from Australia to Iran, despite the difficulties with monetary transactions with Iran due to sanctions.
The Tribunal considered the representative’s submissions along with the supporting documentation provided and finds that the applicant has been maintaining direct and continuous involvement in the management of his main business (Yas Global Pty Ltd), and that while he has spent greater portions of his time in Iran in recent times, this was due to his need to support his elderly (and now deceased) parents, the need to liquidate his real property assets in Iran, and the obvious need to find opportunities to sell products into Iran from Australia as well as to find suppliers to allow him to import pistachios to Australia. The Tribunal accepts the evidence given by Dr Mohammadi at the hearing that he maintained regular involvement with the day-to-day activities of the business in Australia while he was in Iran, and that all business decisions relating to Yas Global Pty Ltd were made by him.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant can satisfy at least 2 of the 3 requirements set out in cl.892.212 of Schedule 2 to the Regulations.
Requirements relating to applicant’s assets
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.
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 business and personal assets and assets in the main business are met.
The Tribunal notes that the application was made on 26 September 2016, and that the applicant sought to rely on financial statements for the main business, along with evidence of personal assets, held at 22 July 2015 and 22 July 2016. The primary decision notes that these dates were adopted by the Department to test whether the applicant satisfied cl.892.212, and the Tribunal adopts the same dates in its consideration.
Business & personal assets
In the application, the applicant claimed he held business and personal assets in Australia valued at AU$250,520 on 22 July 2015, and business and personal assets in Australia valued at AU$284,313 on 22 July 2016. The delegate accepted the applicant’s claims of personal assets in Australia of AU$127,397 on 22 July 2015 and of AU$26,468 on 22 July 2016. However, the delegate was concerned in relation to the value of assets in the main business at both dates. This is because the overwhelming majority of assets in the main business were claimed as director’s loans made by Dr Mohammadi. The Tribunal has considered the general ledger for the director’s loan account held by Yas Global Pty Ltd and finds that at 22 July 2015, the balance of that account was a credit of AU$127,397, and at 22 July 2016, the balance was a credit of AU$267,126. However, the Tribunal notes the delegate’s concerns that the individual loan contributions recorded in the general ledger could not be attributed back to the applicant.
In particular, the delegate found that, after making an additional request for information from the applicant for verification that the applicant himself had made the credit payments to the general ledger for each transaction recorded at AU$5,000 or higher, “only a handful could be attributed back to the applicant.” The delegate was concerned that the applicant did not provide evidence from all his personal bank accounts showing the requisite debit payments in line with the credits into the various Yas Global Pty Ltd business accounts and recorded in the general ledger for the director’s loan account.
At the hearing, the applicant gave evidence, which the Tribunal accepts, that he did make all payments into the director’s loan account using his personal funds in other Australian bank accounts held by him and his wife. The Tribunal has considered the general ledger account along with all supporting bank statements that the applicant provided to the Department. While the Tribunal agrees with the delegate that there are “only a handful” of transactions where supporting bank statements from the applicant’s personal account have been provided for verification, the Tribunal finds that the majority of credit transactions recorded on the general ledger for the director’s loan account (both transactions made of AU$5,000 or more, and transactions less than $5,000) are clearly attributable to the applicant.
Specficially, coupled with the applicant’s oral evidence at the hearing that he did make the payments to the director’s loan account, the Tribunal considers that statements on Yas Global Pty Ltd’s accounts such as “Transfer from Netbank” indicate a transfer between accounts owned by the applicant, and many of the transactions have minor descriptions that only make sense in the context of the applicant having made the transaction – e.g. a transaction for AU$13,000 on 21 June 2014 as a Transfer from Netbank with the description “trinity college” – the applicant’s son attended Trinity College at this time and this amount reflects fees payable to the college. Where transactions are made to and from third parties, the bank statements for the applicant’s business include detailed descriptions as to the entity behind each credit and debit.
In the primary decision, the delegate found that a substantial directors’ loan given by the applicant to Yas Global Pty Ltd in February 2016 could not be relied upon to demonstrate that the applicant had business and personal assets in Australia valued at AU$250,000 or more at the time the visa application was made. Specifically, the delegate noted there was insufficient evidence to show that the applicant himself had paid for a 12,642kg purchase of pistachios from Yegane Royan Shargh. The delegate accepted that the applicant’s main business imported these pistachios from Yegane Royan Shargh and accepted the value claimed by the applicant, AU$180,780.60. However, the delegate noted that the applicant provided no evidence to support his claim that he paid for the pistachios on behalf of the main business and thus did not consider this sum as part of the value of the director’s loan.
Along with his representative’s submissions made on 30 August 2019, the applicant provided the Tribunal with evidence of transfers into and out of a short-term deposit account held in his name in Iran, as well as corroborating evidence from Yegane Royan Shargh, of 10 instalment payments made for the purchase of 12,642kg of pistachios. The instalments were paid once per month from August 2015 to March 2016. Based on the representative’s submissions, the documentary evidence provided, and the oral evidence of Dr Mohammadi given at the hearing, the Tribunal finds that the applicant did pay on behalf of Yas Global Pty Ltd for the purchase of 12,642kg of pistachios, and finds that this amount should be considered as part of the director’s loan to the applicant’s main business.
Therefore, the Tribunal finds that the applicant held business assets of $123,123 as at 22 July 2015, and business assets of $257,845 as at 22 July 2016.
Based on all the evidence before it, the Tribunal finds that the applicant did hold business and personal assets with a net value of at least AU$250,000 at both 22 July 2015 and 22 July 2016.
Assets in the main business
Because the delegate made findings that the applicant did not meet the requirements in cl.892.212(a) and cl.892.212(b), the delegate did not consider whether the applicant met the requirements set out in cl.892.212(c) of Schedule 2 to the Regulations.
The Tribunal notes that as set out in paragraph 26 above, the applicant held business assets of $123,123 as at 22 July 2015, and of $257,845 as at 22 July 2016. The Tribunal notes that the applicant’s main business is his only business interest in Australia, and therefore, the assets in the main business at both 22 July 2015 and 22 July 2016 exceeded the minimum AU$75,000 required in cl.892.212(c). Therefore, the Tribunal is satisfied that the applicant meets the requirements of cl.892.212(c).
Criteria to be met at time of decision
If an applicant satisfies the requirements in cl.892.212(b), relating to their business and personal assets, then cl.892.221(b) must also be satisfied. Clause 892.221(b) requires that the applicant continues to meet those requirements at the time of decision.
At the hearing, the applicant told the Tribunal that he had recently entered into a contract to purchase a house and land package in Craigieburn. After the hearing, the applicant provided evidence of payment of a deposit of $10,000 towards that purchase. He also provided evidence of ownership of a Lexus motor vehicle currently insured with RACV for an agreed value of $49,000, as well as evidence that the bank account for the main business has a current balance of $123,521, and evidence that his two personal bank accounts have current balances of $46,897.59 and $53,423.33 respectively. Therefore, the Tribunal finds that at the time of this decision, the applicant holds business and personal assets in Australia with a net value of $282,841.92.
Based on the evidence before it, the Tribunal finds that the applicant continues to hold business and personal assets in Australia with a net value of at least $250,000. Therefore, the requirement in cl.892.221(b) is met.
Given the findings above, the Tribunal is satisfied that cl.892.212 and cl.892.221(b) are both met by the applicant. The appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa, including in relation to the secondary applicants.
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 visa:
·cl.892.212 of Schedule 2 to the Regulations; and
·cl.892.221(b) of Schedule 2 to the Regulations.
Mary Sheargold
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.

[2019] AATA 6128

18 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction