Rahbarinejad (Migration)

[2020] AATA 4538

Rahbarinejad (Migration) [2020] AATA 4538 (26 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Gholamreza Rahbarinejad

Mrs Zahra Bahejab

Ms Yasaman Rahbarinejad
Master Yasin Rahbarinejad

CASE NUMBER:  1827593

HOME AFFAIRS REFERENCE(S): BCC2015/916689 BCC2016/122282 BCC2016/122286

MEMBER:Deputy President Jan Redfern

DATE:26 October 2020

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

Statement made on 26 October 2020 at 10:36 AM

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) Subclass 892 visa – consideration of time of application criteria – whether the applicant has an ownership interest in an actively operating main business – two main businesses nominated – business activity statements provided after application made – meaning of “included in the application” – whether the applicant meets time of decision criteria –  meaning of “continues to satisfy” – where one main business ceased operating before the decision – whether second main business was “actively operating” – applicant found not to continue to have an ownership interest in an actively operating main business at time of decision – recommendation for Ministerial Intervention – decision under review affirmed.

PRACTICE AND PROCEDURE – relevant considerations for a virtual hearing – virtual hearing in COVID-19 Pandemic.

LEGISLATION

Migration Act 1958 (Cth), ss. 65, 134(10)

Migration Regulations 1994 (Cth), reg 1.03, 1.11, part 892 of Schedule 2

CASES

Anand v Minister for Immigration and Citizenship [2013] FCA 1050

Australian Securities Investment Commission v GetSwift Limited [2020] FCA 504
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
Campbell v Minister for Immigration and Citizenship [2011] FCA 940
Chugha and Comcare (Compensation) [2020] AATA 2835
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Minister for Immigration and Citizenship v Hart [2009] FCAFC 112
Nasirzadeh v Minister for Immigration [2019] FCCA 115
Rahbarinejad & Ors v Minister for Immigration & Ors [2018] FCCA 2293
Tetley v Goldmate Group Pty Ltd [2020] FCA 913
Tung-Liang Liang v Minister for Immigration [2009] FCA 189
Shahpari v Minister for Immigration [2016] FCCA 513
Yang v Minister for Immigration and Anor [2014] FCCA 1576

1414607 [2015] MRTA 807

SECONDARY MATERIALS

Department of Home Affairs, Procedural Advice Manual 3: Sch 2 Visa – State/Territory Sponsored Business Owner

Department of Home Affairs, Procedural Advice Manual 3: Act – Ministerial Powers – Minister’s guidelines on ministerial powers (s351, s417 and s501J)
President’s Direction, Conducting Migration and Refugee Reviews, (1 August 2018)

President’s Direction, COVID-19 Special Measures Practice Direction: Migration and Refugee Division (27 April 2020)

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (now the Minister of Home Affairs) on 3 March 2016 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 23 March 2015. 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 first named applicant, Mr Gholamreza Rahbarinejad, is the primary applicant. The second name applicant, Mrs Zahra Bahejab, is Mr Rahbarinejad’s spouse. The other two applicants are their children. The subclass 892 visa is a permanent visa.

3. The delegate refused to grant the visas on the basis that Mr Rahbarinejad did not satisfy the requirements of cl.892.211(1) of Schedule 2 to the Regulations because the delegate was not satisfied Mr Rahbarinejad had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application was made.

4. The applicants applied for review of this decision and the Tribunal affirmed the decision under review in May 2017.The applicants then applied to the Federal Circuit Court of Australia (‘FCCA’) for judicial review of the Tribunal’s decision. The FCCA quashed the decision and remitted the matter to the Tribunal for reconsideration according to law.[1]

   [1] Rahbarinejad & Ors v Minister for Immigration & Ors [2018] FCCA 2293.

5. For the following reasons, I have decided that the decision under review should be affirmed. In summary, I have found that Mr Rahbarinejad meets all relevant time of application criteria but does not meet critical time of decision criteria because I am not satisfied he continues to have an ownership interest in a main business at this time. The reasons for this are complicated by the significant effluxion of time since he made the application and matters that are outside his control, which have resulted in undue hardship for him and his family. The applicant has requested that if I am not satisfied he meets the requirements of Part 892, I consider making a recommendation about referral for Ministerial intervention. I have done so for the reasons later outlined.

   BACKGROUND

6. Mr Rahbarinejad is a national of Islamic Republic of Iran. He first arrived in Australia on a tourist visa on 14 March 2008 and departed on 8 April 2008. In December 2010, Mr Rahbarinejad was granted a Subclass 163 Business Skilled (Provisional) visa and he made his current Subclass 892 business owner visa application while onshore. Mr Rahbarinejad and his family commenced living in Australia in 2010.

7. Petroyas Pty Ltd (Petroyas) ABN: 42 150 217 235 and Petroyas Nominees Pty Ltd (Petroyas Nominees) ABN: 86 150 217 422 were incorporated on 1 April 2011. Mr Rahbarinejad is the sole director and shareholder of both companies. Petroyas is the trustee of the Petroyas Family Trust. Petroyas Nominees is the trustee of the Petroyas Business Trust. The Petroyas Business Trust (ABN: 27 409 541 799) and Petroyas Family Trust (75 709 910 557) were established on 5 April 2011. The applicants are beneficiaries of the Petroyas Family Trust. Petroyas, as trustee for the Petroyas Family Trust, is the beneficiary of the Petroyas Business Trust.

8. Petroyas Nominees operated a retail food services business, which was initially the Croissant Express Gateway. A copy of a franchise agreement between Croissant Express Franchising Pty Ltd as franchisor and Petroyas Nominees Pty Ltd as franchisee dated 13 July 2013 was provided with the application. Documents provided with the visa application indicate this business commenced trading in August 2013. The franchise agreement terminated in April 2014 following a dispute with the franchisor, after which Petroyas Nominees traded under the business name Coffee and Food Express, which was registered with ASIC on 15 May 2014. I refer to this as the “retail food business” in this decision.

9. Petroyas Nominees was deregistered on 3 July 2019 and ceased operations in June 2019.

10. Petroyas operated an engineering consulting business from at least 30 June 2012, this is evidenced by the financial reports for the Petroyas Family Trust for the financial year ended 30 June 2012 indicating that an income (professional fees) was derived from contract work undertaken in that financial year. Petroyas continues to be registered, but at the time of this decision, derives its income from rental activities.

11. Mr Rahbarinejad made his application for a subclass 892 visa on 23 March 2015. Mrs Bahejab and their children were included in the application as members of the family unit. He nominated the business operated by the Petroyas Nominees ATF the Petroyas Business Trust as the relevant business for the purposes of the subclass 892 visa. The application included a form that was required to be completed, known as ‘Form 1217’. Form 1217 is directed to asking an applicant to provide information and evidence to support the claim that the applicant meets each of the criterion set out in Part 892 of Schedule 2 of the Regulations.

12. The evidence provided by Mr Rahbarinejad at the time the application was lodged was not found to be sufficient by the delegate and by letter dated 1 December 2015 the delegate requested that Mr Rahbarinejad provide further information in relation to the nominated business. In particular, the delegate requested additional business activity statements for the trading period February 2013 to August 2013 and January 2015 to March 2015. This is because the statements provided by Mr Rahbarinejad only covered the period August 2013 to December 2014 and an applicant for a subclass 892 visa must provide business activity statements for the two-year period prior to lodging the application. Mr Rahbarinejad provided a response on 24 December 2015 and requested that a second business, operated by Petroyas ATF Petroyas Family Trust, be added to the application. The delegate found that as the second business was not a nominated business at the time of application it was unable to be considered. The application was refused.

13. The applicants sought review of this decision and the Tribunal, differently constituted, affirmed the decision to refuse the visa. The Tribunal was not satisfied that the business nominated in the Form 1217, being the business operated by Petroyas Nominees, was actively operating for the relevant two-year period and did not take into account the second business nominated in December 2015. The Tribunal further found, after reviewing business activity statements provided to the Department, that there was no evidence to suggest that the businesses were trading prior to August 2013.

14. The applicants sought judicial review of this decision and, as already noted, the decision of the Tribunal was quashed and the review was remitted to the Tribunal for reconsideration according to law.

15. The Court found that the Tribunal committed jurisdictional error because the presiding member focussed on the business selected in the Form 1217 and did not make the inquiry about whether a business was a “main business”, as defined in reg 1.11(1), in relation to the applicant for the purposes of the criteria for a subclass 892 visa. Relevantly, the Court found as follows:

    …..whatever may have been the entries on the form 1217, the tribunal was required to conduct an inquisitorial investigation into the applicant’s claims. The tribunal’s statutory duty was to assess to complicated elements of cl 892.211 against the complex commercial arrangements of the applicants. The proper discharge of that statutory duty was not limited to minutely scrutinising the entry on the form 1217. It seemed to me that the tribunal was required to investigate the totality of the factual scenario that presented itself to the tribunal. The question for the tribunal was whether a particular business was a “main business”. Rather than approaching the inquiry with that in mind, in this case the tribunal focussed on the business selected on the form 1217 and the tribunal analysed the situation thereafter from that starting point. To my mind that was an error. Regulation 1.11(1) in its definition of “main business” did not speak of a business as identified on form 1217. Instead, in the definition of “business” as a “main business” the tribunal needed to be satisfied that in relation to such a business the applicant met the particulars in reg 1.11(1)(a) to (d). That could have been Petroyas Pty Ltd or Petroyas Nominees Pty Ltd. There seemed to be little doubt that either of those companies met the definition of “qualifying business” and that the first applicant had an “ownership interest” in both companies.[2]

    [2] Ibid at [27].

16. The Tribunal was also found to have erred because it failed to consider relevant information to the effect that the relevant business had been operating at least two years before the application and had relied erroneously on the business activity statements as “providing a definitive answer” to the issue of whether the businesses had traded in the relevant period.[3]

    [3] Ibid at [35] and [36].

17. The Court remitted the matter to the Tribunal for reconsideration by order dated 14 August 2018.

18. On 8 June 2018 the applicants travelled to Iran. This was after the hearing of the appeal but before the decision was made. In his evidence at the first hearing before me, Mr Rahbarinejad explained the circumstances leading to his extended absence from Australia. He said that the purpose of the trip was for he and his family to visit his father who was ill. He said that his father had subsequently passed away. According to Mr Rahbarinejad under his bridging visa conditions, he was required to return to Australia by September 2018. Mr Rahbarinejad said that while he, Mrs Bahejab who was at the time pregnant, and their children were at the airport trying to return to Australia, [details deleted]. Mrs Bahejab and their children were able to depart and return to Australia, but Mr Rahbarinejad was unable to do so. He left Iran on 11 July 2019, travelling to the United Kingdom, [details deleted].

19. Mr Rahbarinejad provided significant detail about his experiences in Iran and his efforts to leave but as they are not relevant to the current application, I have not included this evidence, other than to record the circumstances that have resulted in Mr Rahbarinejad being unable to return to Australia. I accept Mr Rahbarinejad’s evidence in this regard and note he has been unable to return to Australia and is unlikely to be able to return to Australia in the foreseeable future unless he is granted a visa permitting him to do so.

    PROCEDURAL ISSUES AND DOCUMENTARY EVIDENCE

20. The matter was reconstituted for reconsideration in late 2019. After a telephone directions hearing on 13 January 2020, with directions about the evidence and submissions to be lodged with the Tribunal, the matter was initially scheduled for a hearing in Perth in March 2020. Because of concerns about travel arising from the COVID-19 pandemic, the hearing did not proceed at that time and was rescheduled to 4 June 2020. The hearing proceeded by use of the Microsoft Teams platform by videoconferencing.

21. As observed by the Federal Court on several occasions since the commencement of the COVID-19 pandemic, the legal system must continue to function, and parties may have to accommodate less conventional approaches to hearings. Whether a hearing can or should proceed through online platforms is a matter that should be determined on the facts of each case.[4]

    [4] Refer for instance Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (Perram J); ASIC v GetSwift Limited [2020] FCA 504 (Lee J) [7] [33] and

22. In this case, I formed the view that the matter could proceed through Microsoft Teams. The applicants had access to the Microsoft Teams platform and the internet, and the Tribunal undertook significant outreach prior to the hearing to ensure the all parties could actively participate. Critical to this was the lodging of all relevant documentary evidence and submissions prior to the hearing. This was also facilitated by directions made during the hearing and in writing. Compliance with directions made by the Tribunal to assist it to conduct the review is an important aspect of conducting a hearing by Microsoft Teams videoconferencing. Relevantly, it is important that applicants and representatives have regard to and comply with the COVID-19 Special Measures Practice Direction: Migration and Refugee Division made on 27 April 2020 to assist the Tribunal during the COVID-19 pandemic in providing a review that is fair, just, economical, informal and quick. Notably, Mr Rahbarinejad was able to be afforded greater access to participate in the hearing because the Microsoft Teams platform was able to be accessed through his telephone remotely from the United Kingdom. The Tribunal has been conducting hearings through Microsoft Teams videoconferencing since the commencement of the COVID-19 pandemic and the issues arising in relation to the conduct of a lengthy hearing with multiple witnesses have been usefully outlined in a decision of the Tribunal in Chugha and Comcare (Compensation) [2020] AATA 2835. Subject to some issues arising through the telephone connection with the interpreter in the second hearing, the conduct of all hearings proceeded without incident.

23. Mr Rahbarinejad attended the hearings from Wales in the United Kingdom through videoconferencing. He has been overseas since 8 June 2018 and has been unable to return to Australia. Mrs Bahejab also appeared by videoconference from Perth.  She was at a different location from their migration agent, Mr Galloway, who represented the applicants and was of considerable assistance in providing cogent detailed submissions directed to the critical issues that required determination. Mr Galloway participated by videoconference, as did a witness, an accountant who had prepared various financial statements for businesses operated by Mr Rahbarinejad. The other applicants, who are 20 and 10 years old did not participate in the first hearing although Ms Yasaman Rahbarinejad participated in the second and third hearings. The applicants were assisted by an interpreter in the Persian language. The interpreter participated by videoconference on two occasions and by telephone at the second hearing. All hearings were scheduled for late in the afternoon into the evening to facilitate obtaining evidence from Mr Rahbarinejad. Evidence was given by Mr Rahbarinejad, Mrs Bahejab and their accountant, Mr Goce Nikoloski. The first two hearings were adjourned to allow the applicants to provide further information.

24. Relevantly, by letter dated 9 June 2020 the Tribunal sought evidence and further submissions about whether the applicant satisfied certain criteria in Part 892 of Schedule 2 of the Regulations. The applicant was directed to particular issues of concern and was requested to provide any further evidence in support of his claims. The applicants requested an extension of time, which was granted, and on 7 July 2020 the applicant provided further detailed written submissions and evidence in support of the review.

25. The proceedings were listed for further hearing on 27 August 2020. During this hearing, I raised concerns that the evidence and submissions provided did not sufficiently address the question of whether Mr Rahbarinejad could meet certain time of decision criteria arising from his extended absence from Australia and questions about the status and continued operation of the main businesses nominated by him in support of his application for the visa. The proceedings were adjourned to give the applicants an opportunity to address those issues and the proceedings were listed for hearing on 24 September 2020. Unfortunately, the critical submissions and evidence was not provided until the day before the hearing and much of the hearing was devoted to clarifying the new matters raised.

26. Over the course of the review, the applicants provided extensive documentary evidence in support of the review. The documents provided included the following:

    (1)Documents lodged with the application for the visa, comprising a business overview prepared by Mr Rahbarinejad, supplier and franchise agreements, searches from the Australian Securities and Investments Commission (ASIC) recording the registration of Petroyas Nominees, an extract of the Petroyas Business Trust Deed, business activity statements for August 2013 to December 2014, tax returns for 2013 and 2014, financial statements for the year ended December 2014 for Petroyas Business Trust, bank statements and a certificate of title and settlement statement for a commercial property, being a two storey shop and offices or apartment, at 12/23 Junction Boulevard, Cockburn Central in Western Australia. This was purchased by the applicant in 2012.[5]

    [5] Visa application with annexures lodged 23 March 2015.

    (2)In response to the delegate’s request for information Mr Rahbarinejad provided documents relating to Petroyas Family Trust including, financial statements for the Petroyas Family Trust for the year ending December 2014, trust tax returns for 2013 to 2015, business activity statements for the Petroyas Family Trust for January 2012 to March 2015, bank statements, customer and supplier documents, evidence of repairs and maintenance and a copies of the business activity statement for Petroyas Business Trust for the period January to March 2015.[6]

    [6] Letter and email of the applicant dated 24 December 2015 with annexures.

    (3)Prior to the first scheduled hearing, the representative provided to the Tribunal ABN lookup historical details for the Trustee of Petroyas Business Trust and Petroyas Pty Ltd, a copy of the applicants’ previous representatives written submission and evidence submitted to the previously constituted Tribunal dated 25 January 2017, emails to and from strata and property managers in relation to the shop owned by Mr Rahbarinejad and receipts of payment of utilities, arrears and levy notices for the property.[7]

    [7] Written submission of the representative dated 5 February and 6 March 2020 with annexures.

    (4)Following the Tribunal’s request for further information in the letter dated 9 June 2020, the Tribunal was provided with full copies of current and historical ASIC extracts and the trust deeds for both Petroyas Business Trust and Petroyas Family Trust, financial statements and income tax returns for 2016 and 2017 for Petroyas Business Trust and financial statements and income tax returns for Petroyas Family Trust for 2016 to 2020, business activity statements for Petroyas Family Trust for January 2012 to June 2016 and April 2017 to June 2018, copies of bank statements and the title documents and valuations for a shop and house owned by Mr Rahbarinejad and Mrs Bahejab. The house was purchased in August 2015. The applicants also provided a letter with annexures dated 1 July 2020 from their previous accountants. The annexures included ASIC annual company statements for Petroyas Business Trust and Petroyas Family Trust and financial statements for 2015 and a trust tax return for Petroyas Business Trust for 2015.[8]

    [8] Written submission of the representative dated 6 July with annexures.

    (5)After the second hearing on 27 August 2020, the Tribunal was provided with a copy of various utility bills and notices from Oasia strata management, rental invoices for the period 1 March 2017 to 1 September 2020 for the shop owned by Mr Rahbarinejad, business activity statements for the Petroyas Family Trust from July 2017 to September 2020, an agreement between the Petroyas Family Trust and Petrotech-Australia Trust dated 1 September 2019, emails between Mr Rahbarinejad and parties said to be potential clients for the consulting business operated by the Petroyas Family Trust and a letter from Mr Nikoloski about the value of assets of Mr Rahbarinejad and Mrs Bahejab in the businesses in the 12 months before the visa application. Mr Galloway also provided written submissions.[9]

    [9] Email from the representative received on 11, 17 and 23 September 2020.

1. Mr Rahbarinejad, Mrs Bahejab and Mr Nikoloski gave oral evidence. Details of this evidence, insofar as it is relevant to the claims and matters in dispute, is set out below.

2. At the end of the final hearing Mr Galloway requested 14 days to provide any further submissions and to consider, if appropriate, making submissions about a referral for Ministerial Intervention under s.351 of the Act. While the applicants have been given ample opportunity to present their case, provide evidence and submissions, given the potential impact of an unfavourable decision on the applicants, who have resided in Australia for nearly 10 years and have made significant investments in pursuance of a permanent visa, I considered it appropriate to give the applicants the additional time requested.

   RELEVANT LAW AND MATTERS IN DISPUTE

3. The subclass 892 Business Skills (Residence) visa allows a non-citizen who has owned and managed a business for at least two years to stay in Australia indefinitely where the business owner is sponsored by a regional authority in the state or territory where the business is conducted and where the owner meets the other requirements set out Part 892 of Schedule 2 of the Regulations, such as residency, assets ownership and business turnover requirements.

4. The Department has issued a Procedures Advice Manual 3 (PAM3) Sch 2 Visa – State Territory Sponsored Business Owner (‘the Procedures Manual’) in relation to the subclass 892 visa, which provide instructions to decision makers about how to assess the criteria for the visa. This Procedures Manual is useful because it provides clear guidance and commentary about how to assess the criteria set out in what is, on its face, a scheme with several specific technical requirements.

5. The primary criteria for the visa must be satisfied by at least one member of the family unit, which in this case is Mr Rahbarinejad. The other applicants are family members and dependents. They must meet the secondary criteria which provides, among other things, that they be a member of the family unit of a person who satisfies the primary criteria.[10]

   [10] cl.892.3 of the Regulations.

6. Part 892 sets out time of application criteria, relevantly in cl.892.21 of the Regulations, and criteria that must be satisfied at the time of the decision, cl.892.22 of the Regulations. There are five criteria that need to be established at the time of the application, some of which must continue to be satisfied at the time of the decision. These criteria are set out in cl.892.221 of the Regulations. I have not considered the time of decision criteria set out in cl.892.222 (sponsorship by regional authority) and cls.892.223 and 892.224 of the Regulations (public interest criteria).

7. In this case, the delegate and the previous Tribunal found that Mr Rahbarinejad did not meet the first criteria relating to business ownership in the two years prior to the application. The President’s Direction on Conducting Migration and Refugee Reviews, directs that in reviewing a decision, Tribunal members should generally restrict their review to the issues in respect of which the delegate for the Department made its adverse decision.[11] Given the time that has passed since the applicants lodged their application for a subclass 892 visa, I considered it appropriate to consider both time of application and time of decision criteria in the event that I was satisfied Mr Rahbarinejad met the first criteria about business ownership. Mr Rahbarinejad and his representative provided submissions and evidence addressing each of the criteria.

   [11] President’s Direction, Conducting Migration and Refugee Reviews, (1 August 2018) 8.2.

8. As such it is apt to summarise the relevant criteria in cl.892 of the Regulations and identify those matters that are satisfied and those which are contentious and require determination.

9. The first requirement is that the applicant must have and continue to have an ownership interest in one or more actively operating main businesses in Australia for at least 2 years before the application is made (cl.892.211(1)).

10. Each business must meet certain taxation requirements as set out in cl.892.211(2) of the Regulations, namely, the business must have an Australian Business Number (ABN) and all business activity statements required to be lodged for the two year period must have been submitted to the Australian Taxation Office (the ATO) and must be “included in the application”.

11. Mr Rahbarinejad contends that at the time of the application he had an ownership interest in two main businesses, being the businesses operated by Petroyas Nominees and Petroyas on behalf of Petroyas Business Trust and the Petroyas Family Trust respectively, and that they were operating in the two years immediately before the application was made, namely from 23 March 2013. The business operated by the Petroyas Nominees was a retail food outlet. This business is said to have operated until at least June 2017.[12] Petroyas has conducted business activities on behalf of the Petroyas Family Trust from 2012 to date. Mr Rahbarinejad contends that he satisfied the criteria about ownership interest because the value of his interest in the businesses is 100%, he owns all of the shares in the corporate trustees: Petroyas Nominees and Petroyas.

    [12] In early submissions and evidence it was suggested that Petroyas Nominees continued to operate the retail food business until June 2019 as Nick’s Kebabs but it was later clarified that this business was operated by another entity that had taken over the premises from about 2017.

12. In this case, neither the delegate nor the previous Tribunal accepted that the second business nominated by Mr Rahbarinejad in response to the request from the Department should be included. Relevantly, the delegate did not accept the second business because it was not nominated at the time of the application. Given the findings of the Court in Rahbarinejad & Ors v Minister for Immigration,[13] I must consider all of the evidence before me, not just the Form 1217, to determine whether the applicants meet the criteria in cl.892 of the Regulations.

    [13] [2018] FCCA 2293.

13. One of the fundamental issues in this case, having regard to the basis for the refusal by the delegate, is whether Mr Rahbarinejad satisfied the criteria in cl.892.211 of the Regulations at the relevant time.

14. There are two elements to cl.892.211 of the Regulations. Subclause 892.211(1) of the Regulations provides that the applicant must have an “ownership interest” in an “actively operating main business or businesses” for the two years prior to and at the time of the application. Subclause 892.211(2) of the Regulations provides that the applicant must meet the relevant taxation requirements in respect of those businesses. The issue is not whether Mr Rahbarinejad failed to meet the criterion because he did not nominate the second business in the Form 1217. According to the Court, the Tribunal must consider whether the criteria is satisfied by making an inquiry into whether, as a matter of fact, Mr Rahbarinejad had, and continued to have, an ownership interest in one or more actively operating main business or main businesses in the two years before the application was made, relevantly from 23 March 2013 to 23 March 2015. The Court found that it did not matter that the second business was not nominated in the Form 1217 and it should nonetheless be considered for the purposes of assessing whether Mr Rahbarinejad satisfied cl.892.211 of Schedule 2 of the Regulations.

15. There is no dispute that Mr Rahbarinejad nominated the second business operated by the Petroyas Family Trust and lodged the relevant business activity statements for that business and for the additional period requested by the delegate for the Petroyas Business Trust nine months after the application was lodged. Nor is there dispute that this information was lodged in response to a request from the Department.

16. Having regard to the circumstances around the lodgements of documents with the application, there are several critical issues that must be considered in respect of cl.892.211 of the Regulations.

17. First, there is a question about whether the businesses nominated by the applicant as “main businesses” were actively operating for the two-year period before the application was lodged. According to the Procedures Manual, if there are two main businesses relied on it is not necessary for both to have been owned and operated for the full two-year period. This is consistent with the ordinary meaning of cl.892.211(1) of the Regulations. As such, the two-year period of ownership can be satisfied through consecutive ownership of businesses. In this case it is apparent that Mr Rahbarinejad must rely on the business activities conducted on behalf of the Petroyas Family Trust because the Petroyas Nominees did not commence actively operating the retail food business until July 2013.

18. Secondly, there is a question about whether the applicant had an “ownership interest” in the “main businesses” at the relevant time. These are defined terms.

19. Thirdly, there is a question about whether lodging the relevant business activity statements nine months after the application was lodged is fatal. This is because cl.892.211(2)(b) of the Regulations provides that the relevant business activity statements must “have been included in the application”. This is not a factual matter but rather a legal question of interpretation about the meaning of the phrase “included in the application” for the purposes of cl.892.211(2)(b) of the Regulations.

20. Subclause 892.221(a) of the Regulations provides that an applicant must continue to satisfy the criteria in cl.892.211of the Regulations at the time of decision. The question of whether Mr Rahbarinejad met cl.892.211 of the Regulations at the time of the application and whether he continues to meet the criteria are contentious issues that are considered in detail later in these reasons.

21. The second requirement is set out in cl.892.212 of the Regulations and the criteria provides that the applicant must meet certain requirements relating to employment or 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.

22. There is no evidence before the Tribunal that the appropriate regional authority has determined that there are exceptional circumstances in this case nor is there a submission to this effect. Accordingly, the Tribunal must consider whether the substantive requirements of this criteria are met.

23. Mr Rahbarinejad concedes, through his representative, that he does not meet the criterion set out in cl.892.212(a) of the Regulations. This is consistent with his response to question 18 in Form 1217 which asks for details about employees in the main businesses. Mr Rahbarinejad responded that there were no employees for the two years prior to the application.

24. Mr Rahbarinejad contends that he met cl.892.212(b) of the Regulations at the relevant time because the net assets in the main business were $217,259 and that the net personal assets of the applicant and his spouse were $750,000.[14] He relies on the certificate of title and settlement statement for the commercial property, which was provided with the Form 1217, and the relevant financial statements for both the Petroyas Business and Family Trusts. The documents provided by Mr Rahbarinejad show that he purchased the commercial property in 2012 and that the purchase price was AUD473,000. There is evidence that Mr Rahbarinejad held this asset in trust for the Petroyas Family Trust.[15] This is consistent with the financial statements for the Petroyas Family Trust for 30 June 2014 and 2015, which record buildings at AUD531,614. If this asset is included as an asset of the Petroyas Family Trust, I am satisfied that the net value of the assets of Mr Rahbarinejad and Mrs Bahejab exceeded AUD250,000 in the relevant period based on their interest in the Petroyas Family Trust.[16] I am therefore satisfied Mr Rahbarinejad met cl.892.212(b) of the Regulations in the relevant period.

    [14] Form 1217 answers to questions 14 and 16 and supporting material.

    [15] Letter from Walker Wayland dated 1 July 2020, annexure 4 being information regarding the purchase of the shop. Including, purchase invoice, settlement statement and a copy of the acknowledgement of trust.

    [16] According to the financial statements for the Petroyas Family Trust for 30 June 2014 and 30 June 2015 the total assets were $559,048 and $549,640 respectively and the beneficiaries accounts were $557,841 and $549,640 respectively. Refer also letter from Walker Wayland dated 1 July 2020.  

25. Subclause 892.221(b) of the Regulations requires that an applicant must continue to meet cl.892.212(b) of the Regulations at the time of decision. I am satisfied Mr Rahbarinejad meets the requirements in cl.892.221(b) of the Regulations at the time of decision. First, the financial statements for the Petroyas Family Trust record the buildings, being the commercial premises, as AUD531,614. Mr Rahbarinejad also provided a valuation for this property, which is valued AUD550,000 and supports the value recorded in the financial statements. The financial statements record a liability, being a loan from Mr Rahbarinejad to the Petroyas Family Trust, of AUD517,079. Secondly, Mr Rahbarinejad provided the title documents and a valuation for the home purchased by him and Mrs Bahejab in 2015. The estimated market value for house at 15 June 2020 is AUD305,000. The valuations provided are probative. I am satisfied that the combined value of the home owned by Mr Rahbarinejad and Mrs Bahejab and the loan owed to him by the Petroyas Family Trust has a net value of at least AUD250,000. I am therefore satisfied that Mr Rahbarinejad continues to meet the criterion in cl.892.212(b) of the Regulations.

26. Mr Rahbarinejad contends that he met cl.892.212(c) of the Regulations at the time of the application because the assets owned by him and Mrs Bahejab in the main businesses had a net value of at least AUD75,000 throughout the 12 months before the application was made and the assets were lawfully obtained. He relies on the net assets of the main businesses and his claim that he and Mrs Bahejab own 100% of the businesses, presumably because they are beneficiaries of the Petroyas Family Trust. It is also claimed that there is no evidence that Mr Rahbarinejad and Mrs Bahejab have obtained their interests in the business assets other than lawfully. This is not in dispute. The questions are − what was the net value of the main businesses in the twelve-month period prior to the application and what were the assets owned by Mr Rahbarinejad and Mrs Bahejab in those businesses?

27. The value of the businesses is said to be evidenced by the relevant financial statements for the period 1 January 2014 to 30 December 2014 for both Petroyas Business Trust and Petroyas Family Trust. Mr Rahbarinejad owns the shares in the companies that are trustees for the Petroyas Business and Family Trusts, he and his family are beneficiaries of the Petroyas Family Trust (with himself and Mrs Bahejab having between them half of the entitlement to distributions under the relevant trust deed) and the Petroyas Family Trust is the beneficiary of the Petroyas Business Trust. The financial statements for the Petroyas Business Trust record AUD216,570 under current liabilities as the “beneficiaries current account”. This records a liability owed to the Petroyas Family Trust as at 31 December 2014. The financial statements for the Petroyas Family Trust for the years ended 31 December 2013 and 2014 record the beneficiaries accounts as AUD670,371 and AUD773,416 respectively. According to the accountant, the distributions from the Petroyas Family Trust were made to Mr Rahbarinejad and Mrs Bahejab. This is confirmed in the financial statements which record equal distributions to Mr Rahbarinejad and Mrs Bahejab for 2013 and 2014 of AUD50,092 and AUD21,962 respectively. The financial statements for the Petroyas Family Trust as at 30 June 2015 record the beneficiaries accounts as AUD549,640. While this is different to the amounts recorded in the financial statements as at 31 December 2014, it is possible that the differences can be explained by reference to the different accounting periods. As such, I am prepared to accept that in the 12 months immediately before the application Mr Rahbarinejad and Mrs Bahejab owned assets in the Petroyas Family Trust that were valued at least AUD75,000. Accordingly, I am satisfied that Mr Rahbarinejad met cl.892.212(c) of the Regulations at the relevant time.

28. The third requirement is set out in cl.892.213 of the Regulations, which provides that an applicant must meet the requirements of subclauses (2) or (3). Subclause (2) provides that the main business or businesses must meet an annual turnover of at least AUD200,000 in the 12 months before the application was lodged. If an applicant does not meet this cl.892.213 of the Regulations will be satisfied if the applicant meets the criteria in cl.892.212 of the Regulations and the applicant resides in and operates the main business in an area specified in instrument in writing made by the Minister and the appropriate regional authority has determined there are exceptional circumstances.

29. According to the Procedures Manual, this alternate criterion was introduced to provide further flexibility for applicants who have not met the revenue requirement and have businesses in regional areas are specified by legislative instrument. There is no evidence that the alternative criterion applies in this case.

30. Mr Rahbarinejad contends that he met cl.892.213 of the Regulations in the relevant period. This turnover is said to be evidenced by the financial statements for the Petroyas Business Trust and Petroyas Family Trust. The financial statement for Petroyas Business Trust for the period 1 January 2014 to 1 December 2014 shows a turnover of AUD200,809 and the financials for Petroyas Family Trust for the same period shows an annual turnover of AUD62,737. Mr Rahbarinejad provided business activity statements for the Petroyas Business Trust for the period August 2013 to December 2014 and for January to March 2015 and business activity statements for the Petroyas Family Trust for the period January 2013 to March 2015. I have reviewed this evidence which support his contention. I am therefore satisfied Mr Rahbarinejad met cl.892.213 of the Regulations in the relevant period.

1. The fourth requirement set out in cl.892.214 of the Regulations which provides that neither the applicant nor his or her spouse or de facto partner must have a history of involvement in business activities that are of a nature that is not generally acceptable in Australia. Subclause 892.221(a) of the Regulations provides that the applicant must continue to meet the criterion in cl.892.214 at the time of decision. While it is difficult to establish a negative, this is said to be met because there is no evidence to the contrary. I accept this contention find that Mr Rahbarinejad satisfied cl.892.214 of the Regulations the relevant time and continues to satisfy this criterion at the time of this decision.

2. The fifth requirement is set out in cl.892.215 of the Regulations. This criterion relates to residence in the two years immediately prior to the visa application. It is contended that Mr Rahbarinejad meets this criterion as was living in Australia as the holder of one of the visas referred to in paragraph 1104B of Schedule 1 of the Regulations, being a subclass 163 visa, from at least 6 June 2010. This is not in dispute and as such I am satisfied that this requirement is met.

3. In summary, I am satisfied Mr Rahbarinejad meets the requirements set out in cls.892.212(b), 892.212(c), 892.213, 892.214 and 892.215 of the Regulations. The criteria in cls.892.211(1) and (2) of the Regulations are more contentious. As already noted, the criterion in cl.892.221 of the Regulations must be satisfied at the time of the decision. Clause 892.221 of the Regulations provides that the applicant must continue to satisfy cls.892.211 and 892.214 of the Regulations and, if cl.892.212(b) of the Regulations applies, Mr Rahbarinejad must continue to meet those requirements.

4. The difficulty in this case is that Mr Rahbarinejad has resided outside Australia since June 2018. The applicant’s representative advised this by letter dated 17 January 2020. This raises the issue of whether Mr Rahbarinejad, at the time of this decision, continues to have an ownership interest in one or more actively operating main businesses. Mr Rahbarinejad contends that he does.

5. The further issue that requires determination is the impact of the deregistration of Petroyas Nominees and the fact that the Petroyas Business Trust’s retail food business ceased operations from about 2017. While I am satisfied that Petroyas, as trustee for the Petroyas Family Trust, has continued to actively operate since the time of the application, the question is whether the business or businesses operated meet the definition of a “main business” for the purposes of assessing whether Mr Rahbarinejad meets the relevant time of decision criteria. This issue emerged as one of the key issues in dispute during the course of the various hearings.

   ISSUES FOR DETERMINATION

6. Having regard to the evidence provided and submissions made by the applicant and my findings as outlined above, the issues in this case are:

   (1)Issue 1: Did Mr Rahbarinejad meet cl. 892.211(1) of the Regulations at the relevant time? Relevantly, did he have an “ownership interest” in one or more “actively operating main businesses” in Australia for at least 2 years immediately before his application was made?

   (2)Issue 2: Did Mr Rahbarinejad meet cl.892.211(2) of the Regulations? Relevantly, what is the meaning of “included in the application”?

   (3)Issue 3: Does Mr Rahbarinejad meet cl.892.221(a) of the Regulations? Relevantly, does Mr Rahbarinejad continue to satisfy cl.892.211 of the Regulations by continuing to have an “ownership interest” in one or more “actively operating main businesses” at the time of the decision?

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Issue 1: Ownership interest in main business – time of application criteria?

7. Clause 892.211(1) of the Regulations requires that the applicant had an “ownership interest” in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made and that the applicant continued to have that interest at the time the visa application was made.

8. The provisions about ownership interest are technical, but they are well explained in the Procedures Manual which sets out the purpose and requirements of this criterion in clear terms. According to the Procedures Manual, the intention of cl.892.211(1) of the Regulations is to assess whether the applicant has been actively involved in businesses in Australia in which he or she has at least a minimum ownership interest over a significant period of time. The Procedures Manual further describes the taxation requirements of a business in cl.892.211(2) of the Regulations, noting that all businesses with an annual turnover of AUD75,000 or more must register with the ATO for goods and services tax and must have an ABN. The commentary outlines the nature of the evidence to be provided.

9. Regulation 1.03 provides that the “ownership interest” has the meaning given to it by s.134(10) of the Act, as follows:

   "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.

10. Regulation 1.03 also provides that a “main business” has the meaning set out in reg 1.11(1), which provides that a business is a main business in relation to an applicant if:

    (a)the applicant has an ownership interest in relation to that business (reg 1.11(1)(a)) and

    (b)the applicant maintains or has maintained direct and continuous involvement in the day to day management of the business (reg 1.11(1)(b)) and

    (c)the value of the applicant’s ownership interest (or the total value of the ownership interests of the applicant and their spouse) meets certain thresholds (reg 1.11(c)) and

    (d)the business is a qualifying business (reg 1.11(1)(d)).

11. Regulation 1.11(1)(c) sets out different requirements for an ownership interest depending on the size of the business. Relevantly:

    ·if the business is operated by a publicly listed company, the value of the ownership interest must be at least 10% of the total value of the business (reg 1.11(1)(c)(i));

    ·if the business is not operated by a publicly listed company and the annual turnover of the business is at least AUD400 000, the value of the ownership interest must be at least 30% of the total value of the business (reg 1.11(1)(c)(ii));

    ·If the business is not operated by a publicly listed company and the annual turnover of the business is less than AUD400 000; the value of the ownership interest must be at least 51% of the total value of the business (reg 1.11(1)(c)(iii)).

12. Regulation 1.11(2) provides:

    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.

13. This regulation is relevant to the notion of continuity which is referenced in cl 892.211(1), reg 1.11(1)(b) and the criteria in cl.892.221 of the Regulations.

14. Regulation 1.03 provides that a “qualifying business” is defined as an enterprise that 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 is not operated primarily or substantially for the purpose of speculative or passive investment. Regulation 1.11(2) provides that if there is an ownership interest in more than one qualifying business, the applicant must not nominate more than two of those qualifying businesses.

15. The businesses relied on by the applicant to satisfy these requirements are the retail food business operated by Petroyas Nominees and the business activities conducted by Petroyas on behalf of the Petroyas Family Trust, which included an engineering consultancy business and renting of commercial premises. Accordingly, the Tribunal must consider the nature and value of Mr Rahbarinejad’s interest in these businesses, whether the businesses were actively operating and whether they met the definition of “main business” in the period commencing two years immediately prior to the date of application. According to the Federal Circuit Court, both businesses should be considered, even though Mr Rahbarinejad did not include details for the Petroyas Family Trust in the original application.

16. The term “actively operating” is not defined in the Act or Regulations. In considering whether this requirement is met, the Tribunal may consider whether the business exhibited activity of a “repetitive, continuous and permanent character” at the relevant times, in which the business actively sought to generate business, in fact generated trade and custom and derived some financial gain for its activities in the relevant period: Shahpari v Minister for Immigration and Border Protection [2016] FCCA 513 at [71].

17. In this case, I am satisfied that Petroyas was actively operating a business on behalf of the Petroyas Family Trust from at least January 2012 to the date of the application. This is evidenced by the financial statements and business activity statements for the period January 2012 to March 2015, financial statements for the year ending December 2014 and tax returns for 2013 to 2015. According to the evidence from Mr Rahbarinejad, he provided industrial engineering consultancy services through the Petroyas Family Trust, which is, in part, supported by a copy of a consultancy agreement between Petroyas and Baker RDS Pty Ltd dated January 2012. The question about the business or businesses operated by the Petroyas Family Trust becomes critically important to the issue of whether Mr Rahbarinejad continues to meet cl.892.211 of the Regulations at the time of my decision. This is considered in more detail under my analysis and reasoning in respect of Issue 3.

18. I am satisfied that the Petroyas Nominees was actively operating a retail food business from July 2013 to the date of the application. This is evidenced by business activity statements for August 2013 to December 2014 and January to March 2015, financial statement for the year ending December 2014 and tax returns for 2013 and 2014.

19. Accordingly, I am satisfied that at least one of the businesses nominated by the applicant was actively operating at all relevant points in time up to an including the time of the application.

20. In order to satisfy the requirements of cl.892.211(1) of the Regulations, the business or businesses relied on by the applicant must meet the definition of “main business” at the time of application and during the two years immediately before. There are four elements to the definition in reg 1.11, each of which must be satisfied for a business to be a main business.

21. First, the applicant must have an “ownership interest” in the business or businesses in the relevant period and, secondly, the value of that 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 must meet certain thresholds.

22. In this case, the main businesses were not publicly listed and their combined turnover was less than AUD400,000. As such, the relevant threshold for the purposes of assessing whether Mr Rahbarinejad had the required ownership interest in one or more main business is at least 51% of the total value of the business.

23. Whether a person has an interest in a business which is operated by a trust is often a complicated issue under the general law. However, the Parliament has enacted special provisions that expressly deal with this issue for the purposes of permanent business visas. Relevantly, s.134(10)(a) of the Act provides that a shareholder in a company that carries on the business has an ownership interest in relation to the business.

24. As explained by the majority of the Full Court in Minister for Immigration and Citizenship v Hart [2009] FCAFC 112, while a beneficiary of a discretionary trust has no interest, legal or equitable, in any assets of the trust under the general law, the definition in s.134(10) of the Act of an “ownership interest” is in disconformity with the ordinary meaning of such an interest under the general law. According to Greenwood J, this is deliberately so, stating as follows:

    65 It is equally true that a shareholder in a company enjoys the particular rights attached to a share but enjoys no legal or equitable interest in the assets of the company in which the share is held. Therefore, it would be anomalous to describe a shareholder as having an ownership interest in the assets of a company or a business conducted by a company. In the modern world of shareholder representative groups, shareholders in a market sense in listed entities have a real interest in the capacity of a company to generate a return on assets as it affects the share price. However, the Parliament of the Commonwealth must be taken to have understood the orthodoxy of the position that a shareholder enjoys no legal or beneficial interest, or put another way, no ownership interest in the assets deployed by a company in conducting its business undertaking whether a listed entity or a proprietary family company.

    66 Accordingly, when the Parliament enacted a definition of ownership interest for the purposes of the Migration Act and Regulations which defined an ownership interest in relation to a business to mean an interest in the business as a shareholder in a company that carries on the business, the Parliament must be taken to have departed from orthodoxy so as to establish a construct, in the migration context, in relation to Established Business Visas, so as to bring about the result that, as a shareholder, an applicant would enjoy a qualifying ownership interest in relation to a business, in the circumstances of the integers that must be made out in order to satisfy the applicable criteria for such a visa. Presumably, the Parliament intended that a non-citizen who invests the relevant threshold of capital or financial support in a qualifying business for the relevant period and continuously engages in the management and decision-making affecting the overall direction and performance of the business, would by doing so, serve Australia’s national interest in encouraging the development and expansion of enterprise business activity which might be productive of employment and the transmission of goods and services into a relevant market. An element of serving the national interest through enabling non-citizens to obtain a permanent "Business Skills – Established Business (Residence) (Class BH)" visa involves, in the statutory context of such a visa, treating an applicant who has a shareholding in a qualifying business within the notion of a main business as that term is understood, as having an ownership interest in that business.

25. His Honour, Spender J agreed, observing that the definition of ownership interest is meant to apply to situations which are “outside the orthodox position” and in this case the legislative provision is clear. Spender J further noted at [30]:

    The definition, inelegant and not in conformity with the ordinary understanding of the general law as it may be, may explain that a shareholder in a company that carries on the business has an interest in the business, and that interest is an ownership interest.

26. This was subsequently followed by Collier J in Campbell v Minister for Immigration and Citizenship [2011] FCA 940.

27. At the relevant time, namely in the two years prior to the application, Mr Rahbarinejad owned the issued shares in Petroyas and Petroyas Nominees. Petroyas operated the business of the Petroyas Family Trust as trustee and Petroyas Nominees operated the business of the Petroyas Business Trust, also as trustee. Mr Rahbarinejad was a beneficiary of the Petroyas Family Trust and Petroyas, as trustee for the Family Trust, was the beneficiary of the Petroyas Business Trust. These matters are evidenced by ASIC current and historical extracts of both Petroyas and Petroyas Nominees and copies of the trust deeds for both Petroyas Business Trust and Petroyas Family Trust.

28. Having regard to the definition in s.134(10) of the Act, the fact that the businesses nominated were discretionary trading trusts does not complicate the enquiry I must make about whether Mr Rahbarinejad has an ownership interest in those businesses. These trusts were operated by companies in respect of which Mr Rahbarinejad held all of the issued shares and this is sufficient to establish an “ownership interest” for the purpose of the Act. As such, I am satisfied that he had an ownership interest in the businesses at the relevant time, for a continuous period from two years prior to and up to the time of the application and that ownership interest exceeded the required threshold of at least 51%.

29. Thirdly, the applicant must maintain or have maintained direct and continuous involvement in the day to day management of the main business or businesses. Mr Rahbarinejad provided documents that he contends demonstrate this including a franchise agreement between Croissant Express Franchising Pty Ltd and Petroyas Nominees as trustee of the Petroyas Business Trust, a consultancy agreement between the Petroyas Family Trust and Baker RDS Pty Ltd, customer and supplier documents, business overview, evidence of repair and maintenance work and correspondence to and from the franchisor. The applicant’s previous representative submitted Mr Rahbarinejad was involved in duties including, maintaining business records, enforcing occupation health and safety in the worksite and providing information to the accountant to assist with the finalisation of financial reports.[17] I am satisfied that Mr Rahbarinejad had and maintained direct and continuous involvement in one or more of the main businesses during the relevant period March 2013 to March 2015.

    [17] Written submission of previous representative dated 25 January 2017.

30. Fourthly, the business must be a “qualifying business”. Having reviewed the business activity statements for the two year period up to and including the application, I am satisfied that Petroyas Nominees carried on business as a retail food business, first under a franchise agreement from July 2013, and then as a kebab and coffee shop from October 2014. I am also satisfied that Petroyas, as trustee for the Petroyas Family Trust, carried on business as a consultancy business from 2012. Mr Rahbarinejad is an industrial engineer and provided advice to the oil and gas industry in Australia. It is self-evident that these businesses were operated for the purpose of making profit through the provision of goods, services or goods and services to the public. I am satisfied that the business operated by the Petroyas Nominees was a qualifying business in the relevant period. I am also satisfied that the business operated by the Petroyas as trustee for the Petroyas Family Trust was a qualifying business during part of the two-year period before the application. However, there is evidence that at some stage the Petroyas Family Trust changed its focus because Mr Rahbarinejad was increasingly concentrating his efforts on the retail food business operated by the Petroyas Nominees and because profitable consultancy work in the oil and gas industry was less available from 2015 to about 2017. Mr Rahbarinejad gave evidence about this in the final hearing. While this question has ultimately become the critical determinative issue in the case and is considered below, I am satisfied that one or more of the main businesses operated by Petroyas and Petroyas Nominees met the definition of main business at the relevant points in time for the purposes of cl.892.211(1) of the Regulations.

1. Given I am satisfied that Mr Rahbarinejad met all requirements of cl.892.211(1) of the Regulations, I must consider whether he also met cl.892.211(2) of the Regulations at the relevant time.

   Issue 2: Did the applicant meet cl. 892.211(2) – meaning of “included in the application”?

2. Subclause 892.211(2) of the Regulations provides as follows:

   (2)  For each business to which subclause (1) applies:

   (a)  an Australian Business Number has been obtained; and

   (b)  all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.

3. There is no dispute that Mr Rahbarinejad satisfies cl.892.211(2)(a) of the Regulations as both the Petroyas Business Trust and the Petroyas Family Trust had registered ABNs at the relevant time.

4. Based on the evidence, I am satisfied Mr Rahbarinejad provided business activity statements required by and submitted to the ATO for Petroyas Nominees as trustee for the Petroyas Business Trust for the period August 2013 to December 2014. These were provided at the time Mr Rahbarinejad lodged the application on 23 March 2015. Mr Rahbarinejad nominated the business operated by Petroyas as trustee for the Petroyas Family Trust as a secondary main business and provided the relevant business activity statements for this business for the period January 2012 to March 2015 on 24 December 2015 in response to a request from the delegate. He also provided business activity statements for the Petroyas Nominees for January to March 2015, which had not been included with the documents when he lodged the application. It is evident that either the Petroyas and the Petroyas Nominees were actively operating businesses from at least March 2013, the Petroyas as trustee for the Petroyas Family Trust from January 2012 to the date of application and the Petroyas Nominees as trustee for the Petroyas Business Trust from July 2013 to March 2015 and business activity statements were lodged for these periods. It is unnecessary for both businesses to be actively operating for the whole of the two-year period prior to the lodgement of the application. It is sufficient if the main businesses nominated cover the two-year period, relevantly, both do not need to have operated for the whole of the period concurrently.

5. To comply with cl.892.211(2)(b) of the Regulations it is necessary for each of the main businesses nominated to have submitted business activity statements as required by the ATO. In other words, the main businesses must have complied with ATO requirements and the applicant must provide proof of this.

6. Based on the evidence provided by Mr Rahbarinejad, it is apparent that the main businesses lodged business activity statements as required with the ATO in the two-year period from 23 March 2013 to 23 March 2015.

7. The difficulty is that the business activity statements for the Petroyas and some business activity statements for the Petroyas Nominees were not lodged at the time Mr Rahbarinejad made the application, nor did he provide any other documents relating to the business operated by Petroyas as trustee for the Petroyas Family Trust at the time of the application. It was submitted that Mr Rahbarinejad prepared the applications himself and did not realise that the business operated by the Petroyas Nominees had not operated long enough to satisfy the requirements of cl.892.211(1) of the Regulations. When the delegate requested further information, Mr Rahbarinejad nominated the business operated by the Petroyas as trustee for the Petroyas Family Trust and provided the relevant business activity statements.

8. As such, even though the Petroyas Family Trust had been operating from at least March 2012 and had submitted business activity statements as required by the ATO for the relevant period, these details and information were not lodged with the application.

9. This raises the question of whether Mr Rahbarinejad complied with the requirements of cl.892.211(2)(b) of the Regulations because the business activity statements for the Petroyas Family Trust were not “included in the application”. This raises a further question about the meaning of this in the context of the requirements in cl.892.211 of the Regulations.

10. Because this gives rise to an issue about the interpretation of the Regulations, I requested written argument about this under s.358(2) of the Act from the Secretary of the Department of Home Affairs by letter dated 15 January 2020.

11. A representative from the Department responded to the effect that the Secretary would not provide written arguments and noted as follows:

    Background for not providing written arguments:

    -Subclass 892 visa regulations and policy, and noting the context of existing visa processes for the Business Innovation and Investment visa subclasses, does not prevent the provision of additional information after lodgement and up to time of decision, and

    -decision makers routinely request BAS statements for the 2 years immediately before application before moving to a decision

    -a finding against the 2016 refusal may occur, if BAS provided on 24 December 2015 is taken "to be included in the application" and therefore 892.211(2)(b) found to be met. In that instance the business nominated at a later stage may meet the criteria of clause 892.211(1).

    -number of on hand applications for the permanent visa subclass 892, currently is less than 100, with very few new applications being received (2 or less / month).

12. While not entirely clear, I have taken this response to mean that delegates of the Minister “routinely request” business activity statements and other information after an application under Part 892 of the Regulations is received and take this information into account “before moving to a decision”. In other words, this response seems to indicate that the Department’s existing procedures contemplate the provision, and presumably consideration, of additional information, including business activity statements, after lodgement and up to the time of the decision.

13. The representative for Mr Rahbarinejad submitted that Form 1217 only provides sufficient space for one main business and it was not clear that two main businesses could be used. The Department routinely requested further information and it is therefore contemplated that information provided after the time of lodgement would be included in the application. It was further submitted that if Parliament had intended that all the business activity statements should be provided at the time of the application then it would have included this requirement in the relevant part of Schedule 1 of the Regulations so that any application not including this information would be deemed to be invalid. The fact that the delegate asked for the outstanding business activity statements on 1 December 2015, is said to support the contention that, at least administratively, information provided in response to this request would have been considered otherwise the decision-maker should simply have refused the application prior to making this request.

100. Given the circumstances leading to the refusal and the submissions of the applicants, one of the critical issues in the case is whether Mr Rahbarinejad complies with cl.892.211(2)(b) of the Schedule 2 of the Regulations. If the business activity statements provided on 24 December 2015 are taken to be “included in the application”, Mr Rahbarinejad would have satisfied this criterion.

101.   The meaning of “included the application” was raised in Nasirzadeh v Minister for Immigration [2019] FCCA 115 but was not considered because the Court determined the issue on another basis. In that case, like the facts in this case, the delegate invited the applicants to provide information after an application for a subclass 892 visa had been lodged and identified the need for the applicant to provide copies of all business activity statements for the relevant period. The applicant had not provided any of the business activity statements at the time of the application. Two months after the request, the applicant’s representative provided the relevant business activity statements for the period. The delegate refused to grant the visa because the documents had not been provided at the time of the application. The applicant sought merits review of that decision to the Tribunal and the Tribunal affirmed the decision under review, finding that the requirement in cl.892.211(2)(b) of the Regulations had not been met. The Tribunal was satisfied that the relevant business activity statements were lodged but was not satisfied that they had been included in the application. The applicant sought judicial review and contended that the Tribunal’s decision to affirm the refusal based on its interpretation of cl.892.211(2)(b) of the Regulations was in error. In the alternative, it was contended that this regulation was ultra vires and therefore in invalid.

102.   The Federal Circuit Court dismissed the appeal. It is apparent from the judgment that the issue of what was meant by “included in the application” was not the subject of consideration because this point appears to have been conceded by the applicant, or at least was taken by the Court to have conceded. The Court observed that the words “included in the application” imported an objective temporal test and the conclusion drawn by the Tribunal that the business activity statements were not included in the application was correct on the evidence before the Tribunal.[18] By implication, the Federal Circuit Court was satisfied that “included in the application” meant at the time of the application and not some extended period, although it is evident that this was not the subject of detailed analysis or argument because it is not disclosed in the reasoning and it is apparent from the judgment that this issue was not pressed. Instead, the Court focused on the question of whether cl.892.211(2)(b) of the Regulations was invalid, finding that it was not. Accordingly, this case does not provide an authoritative judicial ruling on the meaning of “included in the application”.

[18] Nasirzadeh v Minister for Immigration [2019] FCCA 115 at [45].

103.   The criteria in cl.892.211(2)(b) of the Regulations is under the heading “Criteria to be satisfied at time of application”. It could be argued this heading makes it plain that the requirement that the business activity statements be “included in the application” supports an interpretation that these documents must be lodged at the same time as the application. According to the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8, where vocational English was a primary criterion for a skilled visa, the undefined heading “Criteria to be satisfied at time of application” did not have a direct connection to its terms and, while regard may be had to headings under s.13 of the Acts Interpretation Act1901 (Cth), the relevant provision should be construed by reference to its text and the statutory context as a whole.[19] Relevantly, the High Court observed that the criteria designations appearing as headings were not otherwise defined and may be taken as “part of” the Regulations but that there was “no provision otherwise giving substantive operation to the headings in which the designations appear”.[20] The Hight Court found that the text of the relevant provision in relation to the English test did not “speak exclusively to satisfaction at the time of the application”.[21] Accordingly, it is apparent that headings may not impose direct operation on the provisions under the heading and it is a matter of construing the text and the statutory context.

[19] Berenguel v Minister for Immigration and Citizenship at [25] and [26].

[20] Ibid at [15].

[21] Ibid at [26].

104.   The only other cases that may provide judicial guidance in this regard are the decisions of the Federal Court in Anand v Minister for Immigration and Citizenship [2013] FCA 1050 (‘Anand’) and the Full Court of the Federal Court in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 (‘Khan’).

105.   In Anand, Katzman J considered the proper construction of cl.487.216 of Schedule 2 of the Regulations which contains one of the primary criteria for the grant of a subclass 487 Skilled Regional Sponsored visa. The criteria required that the application be “accompanied by evidence” that the applicant had applied for an Australian Federal Police (AFP) check during the 12 months immediately preceding the day the application was made. It was common ground that the applicant had in fact applied for the AFP check by the time he lodged his application for the visa and that the check revealed there were no disclosable court outcomes. However, the results were not available until after the applicant had lodged the application and he had failed to disclose in his application that he had applied for the AFP check. Following the application, a delegate of the Minister requested certain information, including evidence that the applicant had applied for the AFP clearance. The applicant’s agent responded, attaching certain documents, but this did not include evidence about the application to the AFP. After the decision by the delegate, refusing the visa, the representative provided evidence that the AFP check had been sought prior to the application and that the AFP clearance had been subsequently obtained. The applicant applied for a review to the Migration Review Tribunal and was unsuccessful because the Tribunal was not satisfied that the application was “accompanied by evidence” that the applicant had applied for the AFP check. Her Honour observed that the purpose of requiring evidence to be submitted at the time of application was to ensure that the results of the AFP check were available to the Minister when he makes his decision. Relevantly, Katzman J stated as follows:

It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria. That is why the relevant evidence is to accompany the application. Consistent with that purpose the evidence should be submitted with or at the same time as the application. Certainly that appears to be the object of the provision. Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question. There is force in Mr Karp’s submission that there is some flexibility or elasticity in the phrase “accompanied by” (see, for example, Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 at 103, Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 96). It would seem that the delegate had the same view. Why else send the letter of 10 June 2009 requesting the evidence? In this respect I think that both the tribunal and the federal magistrate construed the words of cl 487.216 too narrowly. The next question is what, if anything, turns on this error of construction.[22]

[22] Anand v Minister for Immigration and Citizenship [2013] FCA 1050 at [27].

106.   Accordingly, Katzman J accepted that evidence accompanying an application could be supplied after the application was lodged but stated that there still needed to be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient, but she noted that:

….. the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps.[23]

[23] Ibid at [28].

107.   In Khan, the Full Court considered the construction of cl.485.223 of Schedule 2 of the Regulations in relation to the eligibility criteria for the Skilled Provisional Temporary Graduate visa. This criterion required that when an application was made it should be “accompanied by evidence” that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority. It was not in dispute that when the applicant applied for the visa, he had not applied for a skills assessment and he did not do so for nearly 2 months after the application was lodged. The assessment was successful but the decision to refuse the visa was made prior to this time. The applicant sought merits review and the Tribunal affirmed the delegate’s decision. According to the Full Court Katzman J had taken a “benign view of the word accompanied”. The Full Court observed that the stretching of the concept may give rise to difficulties in determining how far a departure from the temporal requirement may be permitted. Relevantly, the Full Court observed as follows:

15. The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.

16. The test is objective. Clause 485.223 is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.

17. The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.

108.   The Full Court did not expressly reject the approach taken by Katzman J, nor did it need to, but rather found that the issue of fairness or whether the result was potentially harsh was not relevant to assessment of whether the objective temporal test permitted some flexibility.

109.   On the face of it, there may be little distinction between the requirement that an application be “accompanied by evidence” and the requirement that certain evidence be “included in the application”. Both provisions speak of evidence that needs to be provided to the decision maker. Arguably “accompanied by” has, and is intended to have, a close temporal connection with the application because the plain meaning of this suggests that any evidence must be lodged with the application. “Accompanied” is generally understood to mean at the same time. In contrast, the word “included” means contained in or as part of a whole and may be sufficiently broad to cover the application process. This seems to be the approach that the Department generally adopts, even though it was not the approach taken by the delegate in this case.

110.   In Anand the information was provided after the decision. As Katzman J found, this stretched any temporal connection too far. In Khan not only had the applicant failed to lodge evidence of having applied for the skills assessment but he failed to apply for the assessment until two months after the application was lodged. The skills assessment was fundamental to the visa and, unlike Anand and the present case, the applicant could not have provided the evidence at the time of the application because it did not exist.

134.   After the final hearing Mr Rahbarinejad submitted, through his representative, that he had been continuously involved in the management of two main businesses and there was no gap between the businesses. It was further submitted that Mr Rahbarinejad:

..had a lot of correspondence with different companies and the reason he did not locate them all was because when he was arrested in Iran he deleted all emails. He has not been able to retrieve any correspondence except these few which remained in the system. [30]

[30] Email from the representative received 8 October 2020.

135.   I give this submission little evidentiary weight because Mr Rahbarinejad has not provided particulars or details of the work that he undertook in his consulting work, he has not explained why he deleted all of the emails and, significantly, he did not give this evidence at the hearing when this was raised with him. He said that this documentation was in his office in Australia but could not be located. He did not give evidence that this correspondence was in emails that had been deleted. The additional evidence provided by him after the hearing included a further copy of an email from Prosernat January 2017 and an email with person called Cai Jun dated 17 December 2012 which, on its face, is a communication relevant to Mr Rahbarinejad’s consulting business. In addition, Mr Rahbarinejad provided a copy of a request for his resume from a party known as the Kronos Oil and Gas Team dated 10 January 2017 and an email from Mr Rahbarinejad to a party dated 23 March 2014, which I am also prepared to accept relates to the promotion of his consulting business and services at or around that time.

136.   The submissions provided after the final hearing are not entirely consistent with the submissions provided just before to the effect that the Petroyas Family Trust had “recently begun operating again as an oil and gas engineering consultancy”.

137.   Having regard to this evidence and the requirement that Mr Rahbarinejad must continue to meet cl.892.211 of the Regulations at the time of my decision, I make the following findings, and where there is a paucity of evidence, observations:

(1)The Petroyas Family Trust was operating a consultancy business from at least 2012. From about 2014 Mr Rahbarinejad focused his efforts on the business operated by the Petroyas Nominees on behalf of the Business Trust, which was a retail food business. This business operated until at least 30 June 2017. It operated from the commercial premises at 12/23 Junction Boulevard, Cockburn Central, which was originally purchased by Mr Rahbarinejad in 2012 but is said to be held by him for the Petroyas Family Trust, which I accept.

(2)Thereafter, the Petroyas Nominees did not generate any income through the sale of goods or services and another business, Nick’s Kebabs Pty Ltd, operated, and continues to operate, a kebab and coffee shop from the ground floor of the commercial premises. Neither the Petroyas nor Petroyas Nominees (either on their own account or as corporate trustees) have an interest in this business. Mr Rahbarinejad does not have an interest in this business. The second floor of the commercial premises has been used as an apartment and office and has been rented from time to time.

(3)The business operated by Petroyas Business Trust ceased in June 2019 and the trustee company, Petroyas Nominees, was deregistered on 3 July 2019.

(4)Mr Rahbarinejad claims that the Petroyas, as trustee for the Petroyas Family Trust, continued to operate the consultancy business from 2014 to date. The only evidence provided in support of this are copies of 10 emails between Mr Rahbarinejad and third parties exploring prospects about providing consultancy services in late 2014 and 2015 and January 2017. The financial statements for the Petroyas Family Trust for each of the years ended 30 June 2016 to 30 June 2020 do not record any income from professional services or fees and the only expenses referred to are property expenses, depreciation and bank fees and charges. There is no record of expenses for marketing, salaries or wages or other expenses that may tend to suggest that the business operated on behalf of the Petroyas Family Trust was providing goods or services to the public during this period.

(5)Since 2017, the Petroyas Family Trust has generated all of its income, with the exception of the lump sum service fee of AUD3000, from rental income generated by the commercial premises. I accept that this income may be enhanced by additional equipment provided with the commercial premises but this does not change the nature of the income generated. On Mr Rahbarinejad’s evidence, the equipment provided is part of the commercial premises. There is no evidence that the Petroyas Family Trust promotes the rental of this equipment outside the commercial premises. It is provided to Nick’s Kebabs Pty Ltd and is not rented out or offered for rental to members of the public more generally.

(6)I am not satisfied that the Petroyas, as trustee for the Petroyas Family Trust, operates a business providing “rental management services”. This is the service provided by its property agent, Oasia Finance and Property. According to the invoices provided by the applicants, Petroyas Family Trust pays a management fee to Oasia and this is deducted from the rental and is recorded on the monthly statements.

(7)I am satisfied that the Petroyas Family Trust has been offering consultancy services through Mr Rahbarinejad but find that this has generated very little income since 2014 and that the primary focus of the Petroyas Family Trust is and has been since at least 2015 generating income through its rental property.

138.   These matters raise a number of issues.

139. First, there is an issue about the “main business” relied on by Mr Rahbarinejad for the purposes of cls.892.211 and 892.221(a) of the Regulations. Secondly, there is an issue about whether this main business is a “qualifying business” as defined in reg 1.03 of the Regulations. Thirdly, there is an issue about whether Mr Rahbarinejad “continues to satisfy” cl.892.221 of the Regulations in respect of this business. Fourthly, there is an issue whether this is a main business that is actively operating in Australia, given Mr Rahbarinejad has resided outside Australia since June 2018.

140.   One of the main businesses nominated by Mr Rahbarinejad was the retail food business operated by Petroyas Nominees. This business operated from at least July 2013 until about June 2017. The business operated by the Petroyas Business Trust satisfies the definition of being a “qualifying business” because it involved the sale of goods and services for profit to members of the public. There is also evidence that Mr Rahbarinejad was involved in the day-to-day management of this business until at least mid-2017. No evidence was provided about the trading of the Petroyas Business Trust after this period but there appears to be no dispute that this business ceased operations by about mid-2019. Accordingly, this business is not an actively operating main business as at the time of my decision.

141.   To establish that he continues to satisfy cl.892.211 of the Regulations, Mr Rahbarinejad must be able to provide evidence that he has an ownership interest in an actively operating main business in Australia as at the time of my decision. The business now relied on by Mr Rahbarinejad is the business (or rather businesses) operated by the Petroyas as trustee for the Petroyas Family Trust. I accept that Mr Rahbarinejad continues to have an ownership interest in Petroyas, but the critical question is whether the business or businesses relied on satisfy cl 892.221(a) of the Regulations.

142.   According to Mr Rahbarinejad, the Petroyas is and has been operating two businesses. One is said to be a consulting business and the other said to be a “rental management business”. These must be two separate and distinct businesses because they are different in nature and there is no connection between them.

143. For the reasons set out above, I do not accept that Petroyas is or has been operating a “rental management business”. It is apparent that the income generated is rental income from the property held by the Petroyas Family Trust. This does not fall within the definition of a “qualifying business” because this business does not make profit through the provision of goods, services or goods and services to the public. Its income is based on rental and, as such, it cannot be said that the business is “not operated primarily or substantially for the purpose of speculative or passive investment”. This business therefore does not meet the requirements set out in reg 1.11 of the Regulations because it is not a qualifying business. There is also the difficulty that Mr Rahbarinejad cannot rely on yet another main business, he is confined to two (reg 1.11(2) of the Regulations).

144.   In contrast, the consultancy business would be a “qualifying business” but I am not satisfied that this assists Mr Rahbarinejad in meeting the criteria in cl 892.221(a) of the Regulations. The only income said to have been generated from the consultancy service is the lump sum fees of AUD3,000 paid in September 2020 from work undertaken by Mr Rahbarinejad, on behalf of the Petroyas Family Trust, in the previous financial year. First, I would need to be satisfied that this business is actively operating and, if so, that this was “in Australia” notwithstanding that the services provided by Mr Rahbarinejad are provided outside Australia. Secondly, I would need to be satisfied that this is a business in respect of which Mr Rahbarinejad “continues to satisfy” the criteria in cl.892.211 of the Regulations.

145. It is contended that, even though Mr Rahbarinejad provided the service when he was outside Australia, because he provided those consultancy services on behalf of the Petroyas Family Trust and they were received and accounted for in Australia, this is sufficient to satisfy the requirement that the main business should be operating “in Australia”. Where the core function of a business is to provide professional consultancy services, it is difficult to accept that those services can be provided outside Australia yet still satisfy the requirement that the business be actively operating as a main business in Australia. If this was the case, non-citizens could establish a business in Australia over a period of two years, meet all of the time of application criteria then move offshore but maintain a corporate presence in Australia. This would seem to be inconsistent with the policy behind Part 892.

146.   I accept that Mr Rahbarinejad contends that if the visa is granted and he is able to return to Australia, he would provide those services in Australia. However, given the evidence that emerged during the hearing and final submissions, it is apparent that this is not the determinative issue. The critical question is whether the consultancy business is “actively operating” at the time of my decision and, if so, whether there has been continuity in the active operation of the consultancy business from the time of application to the time of decision as contemplated by cl 892.221(a) of the Regulations.

147.   There is no definition in the Act or Regulations for “actively operating” and as such, this term should be given its ordinary meaning. According to Shahpari v Minister for Immigration [2016] FCCA 513, the question of whether a business is actively operating is a question of fact. When determining whether a business is actively operating, it is open to the Tribunal to consider whether the business exhibits activity of a “repetitive, continuous and permanent character”. This was the approach adopted by the former Migration Review Tribunal as per Member Mercer in [2015] MRTA 807 at [39] which Judge Wilson found to be persuasive in Shahpari.[31]

[31] Shahpari v Minister for Immigration at [60] and following.

148.   In this case, there is little evidence that the Petroyas Family Trust was actively operating the consultancy business after about 2014 and possibly 2015. Given the emails of January 2017, I am prepared to give Mr Rahbarinejad the ‘benefit of the doubt’ that he was attempting to find work for the consultancy business until at least this time and possibly beyond. However, I am not satisfied, based on the evidence provided, that this consultancy business was “actively operating” in the way described in Shahpari. Apart from the emails and Mr Rahbarinejad’s evidence about his efforts, there is little evidence to suggest that the Petroyas, either on its own account or as trustee for the Petroyas Family Trust, was involved in the consultancy business as an activity with a “repetitive, continuous and permanent character”. There are no documents evidencing the active operation of this business, other than the emails, nor is there evidence of income generated or expenses incurred in respect of this business since late 2013, apart from the lump sum fees generated in September 2020. The only evidence is Mr Rahbarinejad’s assertion about this. He says there are no documents available to support his claims because his office has been cleaned out. He later asserts, through submissions, that these emails were deleted.

149.   In evidence provided by Mr Rahbarinejad in written submissions and at the second hearing, he contended that he was very much involved in overseeing the day to day management of the rental business. For instance, Mr Rahbarinejad provided copies of many email exchanges between him and Oasia Property and Finance about the property. Mr Rahbarinejad also gave evidence that after June 2018, [details deleted]. In other words, the preponderance of evidence from Mr Rahbarinejad, which I accept, is that he has attempted as best he could while he is been outside Australia to manage that part of the business operated by the Petroyas Family Trust renting out the shop and commercial premises, [details deleted] and, where possible, attempting to obtain income through promoting his consultancy services. The level of income generated in relation to the consultancy business over the past few years since he started the retail business is consistent with Mr Rahbarinejad’s evidence that he focussed his attention on the retail food business from 2015, ceased those operations from mid-2019 and then devoted his attention to managing the rental activities of the Petroyas Family Trust remotely from at least this time. I accept that Mr Rahbarinejad may have made efforts to promote the consultancy business after 2015 but his efforts could best be described as sporadic and seemed to reflect his assessment of the poor prospects in providing consultancy services for oil and gas projects and the other matters that were the focus of his attention after 2015. Relevantly, the level of income generated is in my view the most objective evidence about the extent to which this consultancy business is and has been “actively operating” from the time of the application to the time of decision. Mr Rahbarinejad was able to provide approximately 180 emails in relation to the operation of the rental business but very few emails or documents relating to the consultancy business.

150.   In summary, I am not satisfied that the consultancy business is “actively operating” but even if I am wrong about this, I am not satisfied that that this business has been continuously operating since the time of the application and, in my view, this is necessary for me to be satisfied that Mr Rahbarinejad continues to satisfy cl.892.211 of the Regulations. My reasons for this follow.

151.   The effect of similar provisions has been considered by the Federal Circuit Court and Federal Court. These decisions are instructive given the discussion about what happens where there is a change in circumstances between the time of the application and the decision.

152.   This issue was considered by Judge Driver in Yang v Minister for Immigration and Anor [2014] FCCA 1576, who observed, in dealing with Part 890 which contains provisions in the same terms as Part 892, as follows:

64.      The applicants assert jurisdictional error due to the Tribunal finding that clause 890.221 cannot be satisfied by an ownership interest in a business or businesses other than by the two businesses nominated at the time of application.

65.      Contrary to the applicants’ submissions, it is clear when clause 890.211, 890.221 and regulation 1.11(2) of the Regulations are read together that one or both of the main businesses nominated for the purpose of satisfying clause 890.211 must be those used to satisfy the criteria in clause 890.221.

153.   His Honour also observed, noting the importance of continuity, that:

67.      Regulation 1.11(2) makes clear that an applicant can only nominate up to two main businesses for the purposes of an application. The time of application criterion requires the nomination at time of application of one or more main businesses in Australia, which must, by regulation 1.11, be limited to two. An applicant must continue to hold an ownership interest in those main businesses over a period of two years.

68.      It is, in my view, clear that the regulation is intended to ensure continuity in the holding of an ownership interest. Such continuity is emphasised by the requirements in regulation 1.11(1)(b) to maintain a direct and continuous involvement in the day to day management of those businesses. The requirement in clause 890.221 that an applicant continue to satisfy clause 890.211 at the time of decision, requires the applicant to continue to satisfy the requirement in light of the limitation on the number of main businesses which can be nominated for the purpose of the Regulations at the time of application. There is nothing “extreme” or “arbitrary” in such a construction. Rather, such a construction is consistent with the regulatory requirement for ownership continuity over a two year period prior to application. A similar argument made by the applicant was rejected in relation to a similar regulation in Tung-Liang Liang v Minister for Immigration.

154.   In Tung-Liang Liang v Minister for Immigration [2009] FCA 189 (‘Liang’), Logan J considered the meaning of “continues to satisfy” in the context of a Part 845 visa. The visa under Part 845 has been replaced but the relevant provisions are in similar terms. His Honour found that the meaning of “continues” may depend on the context and whether it is used in relation to a status or activity, which he explained as follows:

In those parts of the Regulations considered in Xiang’s Case and in Rao’s Case, as well as in the present case, “continues” is used as a transitive verb. So used, the sense of the word is “to carry on, keep up, maintain, go on with, persist in (an action, usage, etc.) (Oxford Dictionary, 2nd Ed, 1989) or “to go forwards or onwards in any course or action; keep on” (Macquarie Dictionary, Online Edition). When used for the purposes of cl 845.221 in conjunction with “a status which has a temporal condition”, it requires nothing more than that that status is possessed at the time when the assessment falls to be made, relevantly, at the time when the administrative decision in respect of the visa application is made. If a visa criterion contains a temporal limitation in relation to possession of a particular status at the time of application, a visa applicant who then has that status and who also has that status at the time when the decision in respect of that application is made, necessarily “continues” to have that status. Furthermore, the visa applicant will “continue” to have that status at the time of decision irrespective of whatever his or her status may be in the period which elapses after the date of application and before the date of decision. On the other hand, in respect of an activity based criterion carrying with it no temporal limitation, satisfaction at the time of decision that the visa applicant “continues to” meet that criterion will necessarily require scrutiny of whether that activity was maintained in the interval.[32]

[32] Tung-Liang Liang v Minister for Immigration [2009] FCA 189 at [47].

155. According to Logan J, not all paragraphs in reg 1.11 are status based. Relevantly sub-regulation 1(b) is activity related and the language employed “[n]ecessarily….requires an assessment of an activity over a continuum”. His Honour also noted that the requirements specified in the paragraphs of the definition in in reg 1.11 were cumulative.[33]

[33] Ibid [57].

156.   Liang is authority for the proposition that, when making an of whether an applicant continues to satisfy a criteria which is activity based, such as the criteria relating to an ownership interest in an actively operating main business, it is necessary for the activity to be continuously maintained. As such, I am of the view that in order to make a finding that Mr Rahbarinejad meets the criterion in cl.892.221(a) of the Regulations I must be satisfied that he has an ownership interest in at least one of the main businesses which were the subject of the application and the main business must be an actively operating qualifying business that has been continuously operating form the time of the application to the time of the decision.

157.   In addressing this issue in post hearing submissions provided on 8 October 2020, Mr Rahbarinejad’s representative contended that Liang could be distinguished because the case related to a different visa class and, unlike Mr Rahbarinejad, the applicant in Liang did not maintain a directed continuous involvement in the management of the main business from the time of the application to the time of decision. In Liang the applicant ceased to have an interest in one main business and commenced involvement with another, whereas Mr Rahbarinejad had been continuously involved in the two main businesses and that there was no such gap as identified in Liang.

158.   I reject this submission.

159.   First, the provisions relating to subclass 845 were in similar terms to subclass 892. As such the observations made by Logan J are relevant and authoritative. Secondly, while the circumstances in Liang are different from those in this case, the matters of principle set out by Logan J about the meaning of “continues to satisfy” are authoritative for the purposes of assessing whether Mr Rahbarinejad continues to satisfy cl.892.221 of the Regulations. Finally, the contention that Mr Rahbarinejad has been involved in two main businesses continuously and that there is “no gap” is not supported by the available evidence provided. There is no dispute that the retail food business operated by the Petroyas Nominees, which was one of the businesses nominated by Mr Rahbarinejad, ceased operations by June 2019. This business is not actively operating in Australia as at this time and, as such, cannot satisfy the time of decision criteria in cl.892.221 of the Regulations. The only other business that could be relied upon to meet the criteria is the consulting business operated by the Petroyas, as trustee for the Family Trust because this is the only business that could meet the definition of a “qualifying business” for the purposes satisfying the time of decision criterion in cl.892.221 of the Regulations. 

160.   For the reasons previously outlined, I am not satisfied that the consulting business actively operated in Australia continuously from the time of application to the time of this decision. On the available evidence, it appears this business has been dormant for significant periods while Mr Rahbarinejad devoted his energies to other pursuits. This is not a criticism of Mr Rahbarinejad. It is simply a statement of fact based on the circumstances that arose which, for the reasons that I will outline later in my decision, were largely outside his control and have resulted in undue hardship with unintended consequences for all of the applicants. 

161.   Accordingly, I find that Mr Rahbarinejad does not continue to have an ownership interest in an actively operating “main business” in Australia at the time of my decision. He therefore does not and cannot satisfy cl.892.221(a) of the Regulations. 

162.   Given my findings, the decision under review must be affirmed.

MINISTERIAL INTERVENTION

163.   Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal under s.349 of the Act another more favourable decision if he or she thinks that it is in the public interest to do so. The guidelines relating to the Minister’s discretionary power under s.351 are set out in the Department’s Procedural Advice Manual 3 (PAM3) Act – Ministerial powers – Minister’s guidelines on Ministerial powers (s 345, s 351, s 417 and s 501J). The guidelines provide that cases that have one or more “unique or exceptional circumstances”, such as those described below, may be referred for possible consideration of the use of the Minister’s intervention powers, relevantly including:

·    compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person;

·    exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia;

·    circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case;

·    a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa. For example, systematic harassment or denial of basic rights available to others in their country, or the person has experienced torture or trauma in their country of origin and is likely to experience further trauma if returned to that country;

164.   I recommend that this matter be referred to the Minister for consideration on the following grounds.

165. First, the policy behind Part 892 is to promote business investment in regional areas where the investment is significant and continuing. In this case, there is evidence that Mr Rahbarinejad would have satisfied the key time of application and time of decision requirements if the delegate had taken into account the second main business nominated and the business activity statements provided by Mr Rahbarinejad in December 2015. Given the outcome of the judicial review, there is also evidence Mr Rahbarinejad would have satisfied these requirements on review to this Tribunal. It is apparent that one of the reasons Mr Rahbarinejad cannot now satisfy certain time of decision criterion is because he has been unable to operate the main businesses originally nominated given his personal circumstances. This seems an unfair and unreasonable result in the circumstances of this case.

166.   Secondly, there is evidence that Mr Rahbarinejad’s children, one who was born in Australia and two who have lived nearly ten of their formative years in Australia, would suffer hardship in returning to a country with which they have now little connection. The third and fourth named applicants have lived in Australia since they were 10 years old and 10 months old respectively. The fourth named applicant is still at school and the third named applicant is enrolled as a medical student at James Cook University supported by her parents as a full fee-paying student.

167.   Thirdly, there is evidence that Mr Rahbarinejad and Mrs Bahejab have significant high-level tertiary qualifications, Mr Rahbarinejad in Industrial Management and Mrs Bahejab in law, that may be recognised in and be of benefit to Australia, although there is no evidence that this benefit could necessarily be characterised as “exceptional”.

168.   Fourthly, Mr Rahbarinejad has provided evidence [details deleted]. The delay is a significant factor because Mr Rahbarinejad has already been separated from his family for over two years. He has not met his youngest child. This is a heavy burden for the family and raises questions about the best interests of the child under the Convention on the Rights of the Child.[34] The claims made by Mr Rahbarinejad may equally apply to his family. As such, this may give rise to non-refoulement obligations which I have not assessed for the purposes of this recommendation, but which are detailed in the submissions provided by the applicants’ representative.

[34] Refer Guidelines at [5].

169.   Having regard to the applicants’ circumstances, and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351 and the submissions made by the applicants’ representative, I recommend this case, and the additional information provided by the applicants, should be referred to the Department to be brought to the Minister’s attention.

DECISION

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

Jan Redfern PSM
Deputy President

Tetley v Goldmate Group Pty Ltd [2020] FCA 913 (Bromwich J) [16].