Naghy Pour (Migration) - [2020] AATA 5252

Naghy Pour (Migration) [2020] AATA 5252 (7 December 2020)

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ali Naghy NAGHY POUR
CASE NUMBER:  1910794
DIBP REFERENCE(S): BCC2017/3551968 BCC2017/3721056 BCC2017/3721073 BCC2017/3721115
MEMBER:Peter Ranson
DATE:7 December 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Business Skills (Residence) (Class DF) visa for reconsideration, with the direction the visa applicant meets the following criteria for a Subclass 890 (Business Owner) visa:
·cl.890.211 and cl.890.212 of Schedule 2 to the Regulations.

Statement made on 07 December 2020 at 9:35am

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134, 360
Migration Regulations 1994 (Cth), rr 1.03, 1.11, 1.11A, Schedule 2, cls 890.211, 890.212
CASES
Cheung v MIMIA (2005) 143 FCR 117
Shahpari v Minister for Border Protection [2016] FCCA 513
Yang v Minister for Immigration and Border Protection [2014] FCCA 1576

STATEMENT OF DECISION AND REASONS

Table of Contents

APPLICATION FOR REVIEW

CONSIDERATION OF CLAIMS AND EVIDENCE

Ownership interest in main business

Does the applicant have an ownership interest in each business relied on at all relevant times?
Was each business relied on actively operating at all relevant times?
Does each business relied on satisfy the definition of ‘main business’, at all relevant points in time?

Australian Business Number and Business Activity Statements

Requirements relating to applicant’s assets in the main business

The Merrylands Road Property
Dubai Union net assets
Departmental policy
Adjusted net business assets
Assets must have been lawfully acquired

DECISION

ATTACHMENT A - Legislation

Migration Regulations 1994

1.03 Definitions
1.11 Main business
1.11A Ownership for the purposes of certain Parts of Schedule 2

Migration Act 1958

134 Cancellation of business visas

ATTACHMENT A – Balance Sheets of Dubai Union

ATTACHMENT B – Funds transferred to Australia

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 April 2019 to refuse to grant the visa applicant, Mr Ali Naghy NAGHY POUR (the Applicant) a Business Skills (Residence) (Class DF) visa under s.65 of the Migration Act 1958 (the Act).
The Applicant applied for the visa on 27 September 2017. Certain criteria must be satisfied during the two-year period ending immediately before the time of application, that is, 27 September 2015 to 26 September 2017 (the Application Period).
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 Applicant in this case is seeking to satisfy the criteria for the grant of a Subclass 890 (State/Territory Business Owner) visa, as set out in Part 890 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate in this case refused to grant the visa on the basis the Applicant did not satisfy the requirements of cl.890.212 of Schedule 2 to the Regulations because the business premises were held in his name personally rather than in the name of the entity operating the business and so the net…

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: [2020] AATA 5252
Decision Date: 7 December 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of *Naghy Pour* concerning a Subclass 890 Business Skills (Residence) visa application. The applicant sought review of a decision to refuse this visa. The central dispute revolved around whether the applicant met the criteria for ownership interest in an actively operating main business for the two years prior to their application. A complicating factor was that the applicant's wife, who held a half-share in the business, had passed away during this two-year period.

The Tribunal was required to determine whether the applicant had a sufficient ownership interest in the business for the requisite period, notwithstanding his wife's death and her prior ownership. Further issues included assessing the applicant's involvement in the management of the business, particularly in light of his absence offshore due to his wife's illness, and whether his communication with and direction of an employee constituted active management. The Tribunal also had to consider the valuation of the net business assets and whether business premises, held personally by the applicant but used exclusively for the business, qualified as business assets.

In its reasoning, the Tribunal applied the principles of the *Migration Regulations 1994* (Cth) concerning business ownership and management. It acknowledged that the applicant's wife's death during the assessment period necessitated a careful examination of how her share devolved and whether the applicant could demonstrate continued ownership and control. The Tribunal found that the applicant's personal ownership of the business premises, while not held by the business entity itself, was relevant to the overall assessment of his business assets and his commitment to the enterprise. The Tribunal concluded that the original decision had not adequately considered all relevant aspects of the applicant's case, particularly concerning his management involvement and the valuation of assets.

Consequently, the Tribunal remitted the decision under review back to the delegate for reconsideration according to law.

Orders