Pidorenko (Migration) - [2021] AATA 5604

Pidorenko (Migration) [2021] AATA 5604 (28 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:
Mr Zbigniew Pidorenko

Mrs Agnieszka Pidorenko

Master Adrian Pidorenko

Miss Anna Pidorenko

Master Dorian Pidorenko
CASE NUMBER:  1835328
HOME AFFAIRS REFERENCE(S):          BCC2017/1869541
MEMBER:Susan Hoffman
DATE:28 May 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Residence) (Class DF) visas.

Statement made on 28 May 2021 at 10:31am

CATCHWORDS
MIGRATION – Migration – Business Skills (Residence) (Class DF) visa – Subclass 892 – Net Assets requirement not met – annual turnover of the business was less than the threshold amount of AUD200,000 – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 892.2, 892.213

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 15 November 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 24 May 2017. 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 did not satisfy the requirements of cl.892.213 of Schedule 2 to the Regulations because the annual turnover of the business was less than the threshold amount of AUD200,000, excluding goods and services tax (GST).
Prior to the hearing the Tribunal invited the applicant to comment on the issue and a submission dated 7 April 2021 was received, followed by a submission dated 13 April 2021 to clarify a point arising from the 7 April 2021 submission.
The primary applicant (henceforth the applicant) appeared before the Tribunal on 14 May 2021 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Polish and English languages. The applicants were represented in relation to the review by Ms Sarah Frankel from Estrin and Paul.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant’s business turnover should include or exclude GST when determining if the threshold amount of AUD200,000 was reached in the relevant period.
Clause 892.213 is as follows:
892.213
(1) The applicant meets the requirements of subclause (2) or (3).
(2)…

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: [2021] AATA 5604
Decision Date: 28 May 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of *Pidorenko (Migration)*, which concerned an application for review of a decision by the Minister to refuse a Business Skills (Residence) (Class DF) visa, subclass 892. The applicant sought to have this refusal set aside.

The primary legal issue before the Tribunal was whether the applicant had met the net assets requirement for the visa subclass. Specifically, the Tribunal had to determine if the annual turnover of the applicant's business was less than the threshold amount of AUD200,000, as stipulated by the relevant migration regulations.

The Tribunal affirmed the delegate's decision, finding that the applicant had failed to demonstrate that their business achieved an annual turnover of at least AUD200,000 for the required period. This failure meant that the applicant did not satisfy a crucial criterion for the grant of the Business Skills (Residence) visa. Consequently, the Tribunal concluded that the refusal of the visa was justified.

Orders