Rahbarinejad (Migration)

This matter concerned an appeal by Mr Rahbarinejad against a decision regarding his Subclass 892 Business Owner visa application. The applicant, a national of Iran, had been living in Australia since 2010 and sought to satisfy the criteria for a permanent business skills visa. The core of the dispute revolved around whether Mr Rahbarinejad met the requirements relating to his ownership interest in actively operating main businesses, both at the time of his application and at the time of the decision. The appeal was heard by Deputy Jan Redfern P.

The legal issues before the court were whether Mr Rahbarinejad had an ownership interest in an actively operating main business at the time of his application, and crucially, whether he continued to satisfy this criterion at the time of the decision. This involved interpreting the meaning of "included in the application" in relation to business activity statements submitted after the application was made, and the meaning of "continues to satisfy" in circumstances where one of the nominated main businesses had ceased operating before the decision was made. The court also had to determine if the second main business was "actively operating" at the relevant time.

The court found that Mr Rahbarinejad met the time of application criteria. However, it determined that he did not meet the critical time of decision criteria because it was not satisfied that he continued to have an ownership interest in an actively operating main business at that time. This conclusion was influenced by the significant passage of time since the application and circumstances beyond the applicant's control, which had caused hardship. The court noted that one of the nominated businesses, Petroyas Nominees Pty Ltd, which operated a retail food business, had ceased operations and was deregistered before the decision. While the other business, Petroyas Pty Ltd, continued to be registered and derived income from rental activities, the court was not satisfied it constituted an "actively operating main business" in the context of the visa requirements at the time of the decision.

Given the findings, the court affirmed the decision under review. However, acknowledging the undue hardship faced by Mr Rahbarinejad and his family, and his inability to return to Australia, the court made a recommendation for referral for Ministerial intervention. The court also addressed procedural matters, noting that the hearing proceeded by videoconference due to the COVID-19 pandemic, and that such virtual hearings were permissible and had been accommodated by the legal system.