Mohammed (Migration)

[2023] AATA 917

Mohammed (Migration) [2023] AATA 917 (29 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Idris Yaseen Mohammed

REPRESENTATIVE:  Mr John Kotsifas (MARN: 0323893)

CASE NUMBER:  2011740

HOME AFFAIRS REFERENCE(S):          BCC2019/3342272

MEMBER:Mary Sheargold

DATE:29 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

·cl 887.213 of Schedule 2 to the Regulations.

Statement made on 29 March 2023 at 12:00pm

CATCHWORDS

MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled - Regional) – 12 months work in a specified regional area – updated financial information – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 887.111, 887.212, 887.213

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 14 July 2020 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 July 2019. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 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, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 887.213 of Schedule 2 to the Regulations because they were not satisfied that the applicant had worked in a specified regional area for at least 12 months while he held his Subclass 489 visa.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant can demonstrate that he worked in a specified regional area for a total of at least 1 year while he held his Subclass 489 visa.  The applicant was granted a Subclass 489 visa on 3 September 2015 and he applied for this visa on 3 July 2019.

8. The application was listed for hearing on 28 March 2023.  On 27 March 2023, the applicant’s representative provided the Tribunal with the following documents:

   ·detailed written submissions in support of the application;

   ·a statement from the applicant;

   ·a written statement from Mr Syed Ali Hyder Hussaini;

   ·copies of the applicant’s personal income tax returns for the financial years ending on 30 June 2018 and 30 June 2019;

   ·copies of company tax returns and detailed financial statements for PTE Classroom Pty Ltd for the financial years ending on 30 June 2018 and 30 June 2019;

   ·a current company extract for PTE Classroom Pty Ltd from the Australian Securities and Investments Commission dated 23 March 2023; and

   ·samples of work performed by the applicant in his role as an executive director of PTE Classroom Pty Ltd.

9. Having reviewed this material, the Tribunal was satisfied that a sufficient evidentiary basis was established to find that the applicant did work in a specified regional area for at least 1 year while he held his Subclass 489 visa.

   Work in a regional area

10. Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl 887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

11. The applicant was first granted his Subclass 489 visa on 3 September 2015.  At that time, IMMI 12/021 was the relevant instrument specifying regional areas in Australia.  The entire state of Victoria was specified in that instrument.  While the Tribunal notes the applicant was granted his Subclass 489 visa under sponsorship from the New South Wales government, he ensured that living and working in Victoria would be compliant with his visa conditions prior to establishing himself in Manifold Heights in western Victoria.  The Tribunal is satisfied that it was open to the applicant to live and work in Victoria while he held his Subclass 489 visa and that his location satisfied the requirement in IMMI 12/021.

12. The evidence before the Tribunal demonstrates that the applicant established a small business, PTE Classroom Pty Ltd, with a friend, Mr Syed Ali Hyder Hussaini, on 11 January 2018.  The Tribunal understands that PTE Classroom Pty Ltd stopped offering classes in early 2020 due to the impact of the Covid-19 pandemic, but notes that the cessation of the business at that time does not impact the Tribunal’s assessment of whether or not the applicant worked full time within that business for at least 1 year while he held his Subclass 489 visa.

13. The applicant provided both the Department and the Tribunal with his personal income tax assessments, showing that his taxable income in the 2017-18 financial year was $16,013.00, and that his taxable income in the 2018-19 financial year was $19,330.  These figures correlate to gross payments made to him by PTE Classroom Pty Ltd as director’s fees.  The applicant and Mr Hussaini have equal shareholdings and are the only 2 directors of PTE Classroom Pty Ltd.  However, Mr Hussaini did not derive any income from the business.   In his statement, Mr Hussaini explains that he is a non-executive director of the business and that his agreement with the applicant was that he would not take any fee from the business until it was well established.

14. The detailed financial statements for the business show revenue in the form of fees collected from students at $51,992 in the 2017-18 financial year, and $72,223 for the 2018-19 financial year.  The business wrote down expenses against all of its income in both periods.  The main expenses were the directors fees paid to the applicant, rent, payments to a staff subcontractor, and advertising.  The applicant contends that the business income is a more accurate reflection of his full time commitment to the business rather than his marginal directors fee. 

15. The applicant has stated that he worked full time from home, and so the Tribunal is satisfied that the rental expenses deducted for the business relate to rental payments for the applicant’s lodgings.  The Tribunal is also satisfied that the tax returns for the company do confirm the income stream generated by the applicant’s business and accept that this income has been derived by the applicant’s full-time commitment of at least 35 hours per week to this business.

16. In respect of the applicant’s working location, the Tribunal notes the delegate’s concern that the business was registered to an address in the western suburbs of Melbourne. The Tribunal has considered the statement Mr Hussaini provided and is satisfied that the decision to register the business at that address was entirely pragmatic, noting that Mr Hussaini already operated a business from that location.  The Tribunal notes it is common for businesses to choose a registered address that is in a formal office environment in circumstances where the business may in fact be operated from a director’s home – this protects the personal privacy of that director.  The Tribunal has no reason to disbelieve the applicant’s claim to have worked from home in Manifold Heights while he was operating the business through PTE Classroom Pty Ltd.

17. For completeness, the Tribunal notes it is satisfied that a Subclass 489 visa is a type of vusa listed in cl.887.212, and the Tribunal is satisfied that the applicant held that visa while he was working in a specified regional area.

18. The Tribunal finds that the applicant satisfies cl 887.213.

19. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

20. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

    ·cl 887.213 of Schedule 2 to the Regulations.

    Mary Sheargold
    Member