Rahbarinejad v MIBP
[2018] FCCA 2293
•14 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAHBARINEJAD & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2293 |
| Catchwords: MIGRATION – Business skills (residence) (class DF) visa – state or territory sponsored business owner residence – tribunal failed to investigate totality of the factual scenario presented to it – tribunal found no evidence that applicants’ business or businesses were operating in the two years prior to the visa application – tribunal could have drawn inferences from evidence before it – failure to consider a relevant consideration – tribunal focussed unduly on the lack of a business activity statement for a given period – jurisdictional error – constitutional writs issued. |
| Legislation: Migration Act 1958, s 134(10) |
| Cases cited: Lithgow City Council v Jackson (2011) 244 CLR 352 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| First Applicant: | GHOLAMREZA RAHBARINEJAD |
| Second Applicant: | ZAHRA BAHEJAB |
| Third Applicant: | YASAMAN RAHBARINEJAB |
| Fourth Applicant: | YASIN RAHBARINEJAD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 321 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 14 May 2018 |
| Date of Last Submission: | 14 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 14 August 2018 |
REPRESENTATION
| First Applicant: | In person |
| Solicitors for the First Applicant: | None |
| Second Applicant: | In person |
| Solicitors for the Second Applicant: | None |
| Third Applicant: | In person |
| Solicitors for the Third Applicant: | None |
| Fourth Applicant: | By his litigation guardian the first applicant |
| Solicitors for the Fourth Applicant: | None |
| Counsel for the First Respondent: | Mr A P Yuile |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
A writ in the nature of certiorari issue quashing the decision of the second respondent made on 24 May 2017 (bearing AAT reference 1603906).
A writ in the nature of prohibition issue restraining the first respondent, by himself, his officers, employees, delegates or agents, from acting upon or giving effect to the decision made by the second respondent on 24 May 2017.
A writ in the nature of mandamus issue requiring the second respondent to reconsider and determine according to law the applicants’ application made to it for review of the decision of the delegate of the first respondent.
The first respondent pay the applicants’ costs of the proceeding as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 321 of 2017
| GHOLAMREZA RAHBARINEJAD |
First Applicant
And
| ZAHRA BAHEJAB |
Second Applicant
And
| YASAMAN RAHBARINEJAB |
Third Applicant
And
| YASIN RAHBARINEJAD |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Four applicants brought this proceeding for judicial review of a decision of the Administrative Appeals Tribunal pursuant to which the tribunal affirmed a decision of the minister’s delegate not to grant the applicants a business skills (residence) (class DF) visa. They applied for judicial review on 15 June 2017. Their application for judicial review contained two generic grounds that were not accompanied by particulars.
A registrar of this court had fixed the final hearing of this application on 28 April 2021. While sitting in Perth at the time, I arranged for the case to be mentioned. I did that in accordance with the instruction given by the chief judge of the Federal Circuit Court of Australia to bring forward any cases that were suitable for earlier determination. In this case, the applicants were facing a three year wait before their case was heard, a matter manifestly unsatisfactory to the applicants and indeed to the minister.
On 8 February 2018, I made orders appointing the first applicant as the litigation guardian of his children, the third and fourth applicants. I directed the parties to bring in their proposal for the orderly conduct of the case. They did so by consent orders made the following day. May I acknowledge the collaborative approach exhibited by the parties, particularly as the first and second applicants prepared and presented their case as litigants in person. The parties agreed that the applicants would file and serve an amended application with particulars and that they would file and serve any additional evidence on which they wished to rely by 5 April 2018. They subsequently agreed to extend the date for the applicants to file affidavit material to 19 April 2018. They complied.
The applicants’ amended application remained largely a submission, and it was not particularly straightforward to understand the way the applicants said the tribunal fell into jurisdictional error. In the passages below, I have considered the grounds argued.
In essence, the first applicant was required to satisfy the elements prescribed by cl 892.221 of sch 2 to the Migration Regulations (“regulations”). The requirements were highly technical. They required, at the time of the tribunal’s decision that –
The applicant:
a.continues to satisfy the criteria of clauses 892.211 and 892.214; and
b.if the applicant met the requirements of paragraph 892.212(b), continues to meet those requirements.
Clause 892.211 required, at the time of application, a collection of other matters. They were as follows –
1.The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.
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.
The phrase “main business” was defined in reg 1.11(1) of the regulations. It was in the following terms –
For the purposes of this regulation is the subject to subregulation (2), a business is a mean business in relation to an applicant for a visa if:
a.the applicant has, or has had, an ownership interest in the business; and
b.the applicant maintains, or has maintained, directing continuous involvement in management of the business from day-to-day and in making decisions affecting the overall direction and performance of the business; and
c.the value of the applicant’s 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 is or was:
i.if the business is operated by publicly listed company—at least 10% of the total value of the business; or
ii.if:
(A) the business is not operated by a publicly listed company; and
(B) the annual turnover of the business is at least AUD400 000;
at least 30% of the total value of the business; or
iii.if:
(A) the business is not operated by a publicly listed company; and
(B) the annual turnover of the business is less than AUD400 000;
at least 51% of the total value of the business; and
d.the business is a qualifying business.
The phrase “qualifying business” was defined in reg 1.03 of the regulations. It was in the following terms –
a.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
b.is not operated primarily or substantially for the purpose of speculative or passive investment.
The final phrase of relevance in this case was “ownership interest”. It was defined in s 134(10) of the Migration Act in the following terms –
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.
Having conducted a very fact-specific investigation, the tribunal concluded that it was not satisfied that cl 892.211 had been met.
The question in this case was whether the tribunal fell into jurisdictional error in reaching that conclusion.
Synopsis
For the reasons that follow, in my judgment the tribunal did in fact fall into jurisdictional error. I make orders for the issue of constitutional writs. The minster must pay the applicants’ costs.
Factual setting
The first applicant is a citizen of Iran, married to the second applicant. Their children are the third and fourth applicants. The second, third and fourth applicants applied as members of the same family unit as was the first applicant.
On 23 March 2015, the first applicant applied for a business skills (permanent) visa. He nominated the category of state or territory sponsored business owner residence. He said he spoke fluent English and had completed five years of primary education, seven years of secondary schooling, six years of trade or post-school technical training and five years of tertiary education. In answer to question 28 on his visa application, he stated he was a director of a company called Petroyas and had been since January 2012 to date.
The second applicant stated that she was an attorney-at-law first grade and, for a period, had been self-employed as an attorney-at-law in Iran.
The first applicant completed a form 47BU, a form 949 and a form 1217. He provided a large number of financial documents in support of his application. He also supplied documentary information from the tax agent representing the trustee of the Petroyas Business Trust. He provided a trust tax return in which Petroyas Nominees Pty Ltd was named as the trustee of the Petroyas Business Trust for 2013 and 2014. He supplied the Petroyas discretionary business trust deed. He also supplied a copy commercial credit account application giving the business name of a business conducted by Petroyas Nominees Pty Ltd entitled Croissant Express Blackburn Cockburn (Gateway), the Australian business number and the address being there stated. In a credit application related to a European foods wholesaler[1] the applicant listed the business name Croissant Express Gateway and that the start date of that business was 27 August 2013. A similar credit application was completed for a convenience food manufacturer.[2] The commencement date of Croissant Express Gateway was given as August 2013. The applicants’ documentation also included a franchise agreement between Croissant Express Franchising Pty Ltd as franchisor and Petroyas Nominees Pty Ltd as franchisee. The first applicant guaranteed the obligations of the franchisee under the franchise agreement.
[1] Court book (filed on 18 October 2017) 180
[2] Ibid 183
It seemed that more favourable business opportunities presented themselves with Petroyas Nominees Pty Ltd operating as an outlet under the Coffee & Good Express banner. It registered the business name Coffee & Food Express on 15 May 2014.[3] The first applicant paid $494 739 for his company’s acquisition of the business at Shop 93, 23 Junction Boulevard, Cockburn Central.[4] The Western Australian Small Business Development Corporation provided state nomination approval (form 949) for lodgment with the delegate.
[3] Ibid 208
[4] Ibid 218
On 24 March 2015, the delegate acknowledged that the visa application the applicants sought was valid by letter bearing that date.
On 1 December 2015 or thereabouts, a departmental officer wrote to the first applicant requesting certain additional documents. Among the documents sought were tax agent portal process business activity statement lodgments lodged during the two years preceding the visa application.[5] The delegate pointed out that the applicant had only supplied 16 months’ worth of business activity statements and that first applicant needed to supply business activity statements from February 2013 to August 2013 and from January 2015 to March 2015. The delegate also required an explanation as to why the business activity statements were submitted to the Australian Taxation Office late.
[5] Ibid 231
The first applicant responded to all of the delegate’s concerns by attaching 15 extra documents that he said addressed the delegate’s issues. Some documents had not been previously produced, while others had. He supplied the business activity statements that the delegate said had to be filed for the period from January to March 2015.[6] The applicant also supplied the business activity statements for the period 1 January 2013 to 31 March 2013,[7] for the period 1 April 2013 to 30 June 2013,[8] and for the period 1 July 2013 to 30 September 2013.[9] The first applicant’s accountant offered an explanation for the late lodgment, namely, staff changes at the accountancy practice.[10] The applicant also supplied details of insurance in relation to Petroyas Nominees Pty Ltd trading as Croissant Express Cockburn Gateway for the period 27 August 2013 to 30 June 2014, secured for the sum of $20 000, paid by the first applicant on 10 June 2013.[11]
[6] Ibid 278
[7] Ibid 299
[8] Ibid 297
[9] Ibid 295
[10] Ibid 309
[11] Ibid 315
The delegate’s decision
On 3 March 2016, the delegate refused the applicants’ application for the business visa they sought. The delegate relied on cl 892.211, finding that the first applicant did not meet the requirement that he had and continued to have an ownership in one or more actively operating main businesses in Australia for at least two years immediately before the application was made.
Being dissatisfied with the decision of the delegate, the applicants sought merits review before the Administrative Appeals Tribunal. They applied electronically on 22 March 2016, the receipt of which the tribunal acknowledged on 14 March 2016 by letter also dated 14 March 2016. On 14 December 2016, the tribunal invited the applicants to an interview at which they could give evidence and present arguments. The interview date was fixed for 1 February 2017. In response, all applicants indicated they would attend, represented by Mr Dean Khaze, and that they required a Persian interpreter. Mr Khaze was from an organisation called Home Migration Services. Mr Khaze provided a four-page submission to the tribunal on 25 January 2017. In it, the migration agency pointed out –
a)Petroyas Nominees Pty Ltd was incorporated on 1 April 2011 as was Petroyas Pty Ltd;
b)two trusts were settled on 5 April 2011 with one of those companies as trustees;
c)Petroyas Pty Ltd generated profits and incurred expenses between 2012 to the date of the submission (January 2017); and
d)Petroyas Nominees Pty Ltd entered into a franchising agreement on 13 July 2013, since which it had been actively operating.
Migration Home Services also pointed out that the visa application was lodged on 23 March 2015, meaning that the relevant two year countback period commenced on 24 March 2015 and that as Petroyas Pty Ltd, an entity owned and controlled by the first applicant, had traded since 2012 until the date of the submission, cl 892.211 requirements were met. Migration Home Services provided a bundle of documents to support its submissions, many of which the applicant had placed before the tribunal. One additional document was a letter from the first applicant’s accountants dated 25 January 2017. In it, the accountants stated that they had acted for the first applicant as his tax agents and business advisors between 30 March 2011 and 14 October 2016. They said that in that period of the first applicant had run several businesses out of Petroyas Business Trust and Petroyas Family Trust including the croissant business, a fast food outlet and a consultancy. The accountants stated that the first applicant was involved in the day to day operations of those businesses. In addition, a financial report of the Petroyas family trust was provided for the financial years ended 30 June 2012, 30 June 2013, 30 June 2014 and 30 June 2015.
The tribunal hearing commenced at 2:28pm on 1 February 2017 and concluded at 4:15pm that day, as the hearing record recorded.[12] The tribunal gave the applicant until 15 February 2017 within which to file further material.
[12] Ibid 460.
The tribunal’s decision
On 24 May 2017, the tribunal decided to affirm the delegate’s decision to not grant the applicants the visa they sought. Despite the large volume of information placed before the tribunal, its reasons were comparatively short. Its consideration of cl 892.221 relevantly was set out between paragraphs 25 to 33 of its reasons. It is necessary to deconstruct the tribunal’s reasoning to expose the flaw in its logic and its reasoning process.
At paragraph 25, the tribunal stated that on the form 1217, the first applicant nominated a business trust and the trading name of the trust as one of the main businesses, being the business known as Coffee and Food Express. In the paragraph immediately preceding paragraph 24, the tribunal recited the observations of the Federal Court in Nassif v Minister for Immigration and Multicultural and Indigenous Affairs[13] to the effect that it was not a necessary characterisation of “a main business” that the business is carried on by a single entity.
[13] (2003) 129 FCR 448
Pausing there, 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.
In paragraph 26 of its reasons the tribunal correctly identified that its task was to consider what was the business in this case and to then consider whether that business constituted the “main business”.
In paragraph 26 of its reasons the tribunal stated that the evidence revealed that “two different retail outlets were operated under the umbrella of the business trust structure”. The fact that two retail outlets were operated was true. The reference to “under the umbrella of the business trust structure” was too imprecise for me to accept.
At all events, the tribunal in paragraph 27 of its reasons address the business “Croissant Express”. That was correct. The tribunal referred to the franchise agreement involving Croissant Express Franchising Pty Ltd and Petroyas Nominees Pty Ltd dated 16 August 2013. That too was correct. The tribunal then stated that the franchisor and franchisee fell into dispute leading to the commencement of a subsequent food retail outlets, coffee and Food express. The tribunal stated that the registration of that business was October 2014. That was incorrect as the ASIC documentation[14] showed the registration date as being 15 May 2014.
[14] Court book 208
In paragraph 28 of its reasons the tribunal stated, erroneously, that there was no evidence to suggest that “this business or businesses” (meaning, I infer, Croissant Express or Coffee and Food express) were operating prior to August 2013. The Petroyas family trust financial report for the year ended 30 June 2012[15] revealed income of $49 267[16] made up of contract work. In view of the fact that income was recorded in a financial report as at 30 June 2012, applying a reasoning from such cases as Bradshaw v McEwans Pty Ltd,[17] Girlock (Sales) Pty Ltd v Hurrell[18] and Lithgow City Council v Jackson,[19] an inference can be drawn to the effect that some or all of that income was derived from the business activity undertaken prior to 30 June 2012 and most likely in the period 1 July 2011 to 30 June 2012. In other words, in the period two years prior to the visa application, Petroyas Nominees Pty Ltd was operating and thereby deriving income. That rendered incorrect the statement of the tribunal in the first sentence of paragraph 28 where the tribunal stated that there was no evidence to suggest that either business was operating before 2013. The tribunal failed to consider relevant information, and therefore, it failed to consider a relevant consideration. The tribunal thereby fell into jurisdictional error in the manner espoused in Craig v State of South Australia.[20] To my mind, it was equally erroneous for the tribunal to state, as it stated in paragraph 31 of its reasons, that the absence of a business activity statement in a particular segment of a financial year was an insuperable aspect of the applicants’ proofs.
[15] Ibid 422
[16] Ibid 427
[17] [1951] HCA 480
[18] (1982) 149 CLR 155
[19] (2011) 244 CLR 352
[20] (1995) 184 CLR 163
With that lengthy examination of the factual matters, it is necessary to turn to the grounds of review in the applicant’s amended application.
Grounds of review
The minister made a broad complaint that the grounds required the minister to construe the true kernel of the applicant’s grievances. There is some truth in that, as the grounds were bereft of particulars. The minster relied on one decision only to contend that a ground without particulars cannot succeed, citing WZATH v Minister for Immigration and Border Protection.[21] That much is true. But the real issue was whether the narrative in the amended application on pages 3.1 and 3.2 set out adequate particulars, albeit drafted by a lay person.
[21] [2014] FCA 969
In my view, they did.
It was abundantly plain from the first, second and third paragraphs on page 3.1 of the amended application that the applicants were challenging the tribunal’s reliance on the absence of a business activity statement return over one or more particular periods as evidence of the absence of trading activity. As the foregoing analysis revealed, the documentation before the delegate in fact included evidence of business activity by the relevant entity in the financial year commencing 1 July 2011, being two years prior to the visa application. The tribunal ignored that evidence. Instead the tribunal focused, erroneously in my view, on the phenomenon that the business activity statements providing the definitive answer to the issue of the phenomenon of business activity in a given period and that the absence of a business activity statement for a given period rendered unproven business activity for that period. In doing so, the tribunal fell into the classic formulation of the existence of jurisdictional error as espoused in Craig v South Australia and Minister for Immigration and Multicultural Affairs v Yusuf[22] by taking into account an irrelevant consideration (a complete unbroken historical excursus of chronologically perfect business activity statements) and by failing to take into account a relevant consideration (the financial return for the year ended 30 June 2012).
[22] (2001) 206 CLR 323
In my view, the tribunal fell into jurisdictional error vitiating its decision. On this ground alone, I order the issue of constitutional writs.
The factual information on which ground two proceeded was largely similar to that involving ground one. In response, the minister engaged in a debate about the tribunal’s consideration of the financial documentation before the tribunal. It seemed to me to amount to the same issue as that covered by ground one. The real question was the significance of the absence of the business activity statement where there was direct evidence, uncontroverted and unchallenged, concerning business activity in the period 30 June 2012. For reasons mentioned above, in relation to the financial statement for the period 30 June 2012, I do not accept that the tribunal considered it when, self evidently, the tribunal should have done so and did not do so.
Conclusion
Constitutional writs must issue. I order their issue. I also order the minister to pay the applicants’ costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 17 August 2018
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