Razmara (Migration)

[2018] AATA 5858

Razmara (Migration) [2018] AATA 5858 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kazem Agha Razmara
Mrs Mahin Abbaspour
Mr Amir Mohammad Razmara

CASE NUMBER:  1616816

DIBP REFERENCE(S):  BCC2015/2040934 BCC2015/2041164 BCC2015/2041166 BCC2016/3824471 BCC2016/3827652

MEMBER:Cathrine Burnett-Wake

DATE:26 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 892 State/Territory Sponsored Business Owner (Residence) visa:

·Regulation 1.11(1)(c)(iii) for the purposes of meeting cl.892.211(1) of Schedule 2 to the Regulations.

Statement made on 26 October 2018 at 9:07am

CATCHWORDS
MIGRATION – Business Skills (Residence)(Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – evidence of shareholding provided – requisite ownership interest met – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.11, Schedule 2, cl 892.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 October 2016 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958.

2. Mr Kazem Agha Razmara, the primary visa applicant, applied for the visa on 16 July 2015. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of subclause 892.211 of the Migration Regulations 1994 (the Regulations). The delegates decision states:

   ‘As the application was lodged on 16 July 2015, the applicant has to provide evidence of his ownership interest in the business for the period of 16 July 2013 to 15 July 2015. The applicant provided a Historical ASIC document and ASIC document 2E0949559 which indicates that the applicant and his spouse owned 40% of the shares in the nominated business until 25 August 2014 and that 100% of the shares from that date. As the applicant and his spouse owned less than 51% of the shares in the business for a part of the relevant 2 year period, the applicant is required to meet the requirements of Regulation 1.11(c)(iii) and must show that the turnover of the business for the 2 years of ownership is not less than AUD 400 000.

   The applicant provided financial statements that included sales figures for the years ending 31 May 2014 and 31 May 2015. The financial statements show the sales for the 12 months ending 31 May 2014 as AUD 203 319 and for the year ending 31 May 2015 as AUD 191 575. The applicant therefore does not meet the turnover requirement in Regulation 1.11(c)(iii) and consequently nominated business does not meet the definition of a main business the applicant does not meet the requirements of 892.211.

3. The applicants appeared before the Tribunal on 10 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, for at least two years immediately before the application was made, had the requisite ownership interest in a ‘main business’ as defined by regulation 1.11 for the purposes of satisfying subclause 892.211.

7. The application was made on 16 July 2015. As such the two years immediately before is from 16 July 2013 until 15 July 2015, being the relevant period.

8. The applicant’s claims towards meeting 892.211 are based on his and his spouse’s shareholdings in Australian Anthura Pty Ltd.

9. R.1.11 sets out that the applicant must, in the relevant period:

   •      have maintained direct and continuous management in the business;

   •      have an ownership interest to the total value of at least:

   • 51% if the turnover is less than AUD 400 000 or;
   • 30% if the turnover is AUD 400 000 or more or;
   • 10% if the business is a publicly listed company;

10. Based on the evidence provided to the Tribunal at the time the review application was made, being an Australian Securities Investments Commission (ASIC) historical company extract for Australian Anthura Pty Ltd, the applicant and his spouse held a 40% share from incorporation up until 25 August 2014, at which point the applicant solely held a 100% share.

11. The turnover for the business during the relevant period, based on the financial statements provided by the applicant, reflect for the 2014 financial year a turnover of AUD 203,319 and for the 2015 financial year a turnover of AUD 201,081.

12. The Tribunal received written submissions prior to the hearing that outlined when the applicant started Australian Anthura Pty Ltd in 2011 that he decided without legal consultation to split the shareholdings with a 40% share to himself and his wife; 20% to each of his sons; 10% to his daughter and 10% to his grandson. It was submitted that the applicant did not have any legal background or knowledge and had to rely on professional advice from a migration agent to make sure the business qualified. The applicant submitted that he was told the company structure was appropriate and the share structure was not an issue but it was only important to have the share percentage specified to be able to fulfil the requirements of the business turnover.

13. The applicant further claimed in the written submissions that he became concerned about the turnover being low, barely reaching AUD 200,000 and informed his migration agent about the concern. He claims after speaking with the migration agent he went to see a lawyer to put all shares under his name. He outlined his concerns were mainly because of his age and if something would happen to him he should make sure that the family wouldn’t be disadvantaged and the family remains united. It is claimed this was done on the basis of Persian culture because of an insecure business environment in the Middle East. On 10 November 2012 it is claimed, in a meeting of all shareholders, that it was agreed to transfer all shares into the visa applicant’s name and that the visa applicant signed all legal documents for this to occur. A copy of the signed minutes of the stated meeting of 10 November 2012 was provided to the Tribunal.

    Evidence at hearing

14. At hearing the Tribunal discussed the concerns it had with the applicant. The Tribunal outlined to the applicant that based on the ASIC historical company extract, which he provided to the Tribunal, it did not support his claim that he had held 100% shares from 10 November 2012.

15. In response, the applicant outlined that upon his arrival in Australia he was introduced to someone through his former lawyer to help him with the legal process of registering and establishing his business. He outlined that sometime later he realised that person lied and they weren’t actually a lawyer as he thought, rather it was the brother of his original lawyer. He stated that previously in Iran he had known and built a relationship with his former lawyer and had worked with him and received assistance with him to obtain his visa. He said he was told by his lawyer that he could get assistance from someone to request a loan and register a business amongst other things. He said because he was not familiar with the Australian business environment and didn’t know the language he decided to get help. He outlined that his former lawyer and the person helping him (his former lawyer’s brother) failed to provide accurate information in regard to the business, and they didn’t specify the visa requirement of a 51% shareholding if there was a low turnover. He stated that he had already divided the shares to his family members and that he thought the rules and regulations were pretty much the same as Iran. He said that after 3-4 months he got more familiar with how business operated in Australia and with the people. He said he was discussing with a friend in the Iranian community about his situation, and that this friend alerted him that there could be a problem with his company’s shareholding for visa purposes. He said his Iranian friend introduced him to a person called Omar to help him with transferring the shares. He said he was in a hurry so he invited Omar over to his house. He said his family members were present at the meeting with Omar, except for one of his son’s, who was participating from Iran over video. He said that the meeting took place on 10 November 2012. He further said that this meeting also took place in front of two other friends who could attest the meeting occurred if needed. He then stated that the relevant forms and documents were signed to transfer the shares into his name and that he then posted the documents to his son in Iran to sign. He said his son then sent all the signed forms back via post to Australia. The applicant outlined that he then provided all the documents to the accountant to complete the task and register the shareholding changes with ASIC. The applicant stated that he assumed it was done once the paperwork had been handed over to the accountant.

16. The Tribunal has some concerns about the applicant’s evidence, and its consistency. In the written submissions provided it outlines the applicant sought advice to change the shareholdings because the turnover was low and he was worried how that would impact his family if something were to happen to him. Then in the verbal evidence he provided direct to the Tribunal during the hearing, he stated that it was not until he was in discussions with a friend that he realised there may be an issue. It is entirely possible that these events are not mutually exclusive, in that he spoke to his friend, and then in turn spoke to the migration agent; however, this was not made clear by the applicant in verbal evidence. Notwithstanding this, the hearing was conducted entirely through an interpreter where the finer points can get lost in translation, as such the Tribunal will accept that the applicant at some point had concerns with the shareholding structure and turnover and sought further advice.

17. The applicant did however, state to the Tribunal that he was unaware of the shareholding requirements for the purposes of meeting ‘ownership interest’ when he established the company and was effectively given bad advice. He outlined when he realised the issue, he took steps to immediately rectify it.

18. The applicant further outlined that he only became aware that the documents relating to the shareholding meeting of 10 November 2012 were never lodged with ASIC when the Victorian government notified him that his shareholding was not sufficient for sponsorship purposes. The applicant stated that he went back to the accountant to ask what happened and to fix the issue and it was at this point, being 25 August 2014, that the accountant finally informed ASIC of the changes to the shareholding. The applicant blamed the accountant and said it was the accountant’s mistake. The Tribunal asked if the applicant had any evidence that he had instructed his accountant to lodge the shareholding documents of 10 November 2012, such as an email chain. The applicant said he did not and that he had given the documents to the accountant during an in-person meeting and assumed they were dealt with accordingly.

19. In concluding the hearing the Tribunal re-iterated its concerns. It explained that the evidence it had before it was that during the relevant period the applicant and his spouse did hold the requisite shareholdings given the company’s turnover.

20. The applicant’s representative made verbal submissions at the conclusion of the hearing that the Tribunal should accept the signed minutes of the meeting of 10 November 2012 as sufficient evidence that the applicant held the requisite shareholding during the relevant period. The Tribunal stated it could not accept this argument and that the prima facie evidence currently before it, being the ASIC historical company extract, reflected the applicant only held the requisite shareholding from 25 August 2014 and the relevant period he needed to demonstrate that he and/or his spouse held at least a combined share of 51% was 16 July 2013 until 15 July 2015. The representative requested further time, post- hearing, to obtain additional evidence to support the applicant’s claims. The Tribunal agreed to allow further time.

    Post hearing submissions

21. The applicant provided evidence to the Tribunal that on 14 August 2018, he lodged a Form 492 with ASIC (a request for correction form). The details of correction listed on the ASIC form state:

    The date for all the changes/transfers on this ASIC Form 484 should have been 10 November 2012 as evidenced by the meetings and drafted agreements.

    The ASIC Agent at the time incorrectly included a date that had no relevance to the actual date that the shareholders agreed to transfer.

    Could you kindly update the ASIC Register to show the date of change as 10 November 2012, rather than the incorrect date of 25 August 2014.

22. The applicant also provided the Tribunal with evidence of the late penalties that were paid to ASIC to change the register of shareholdings, amounting to AUD 1,848.

23. The Tribunal has confirmed through its own enquires that the ASIC public records now reflect that the applicant has held a 100% shareholding with Australian Anthura Pty since 10 November 2012.

24. It troubles the Tribunal somewhat that the applicant only took action to rectify the shareholding direct with ASIC after the Tribunal held a hearing. The applicant could have taken this action prior, which would make his actions appear less disingenuous. However, given the shareholding of Australian Anthura Pty Ltd has laid with the applicant’s immediate family since incorporation, the Tribunal does consider that the overall intention of the applicant was to satisfy the shareholding requirements and not be caught out on a technicality, which he has now overcome through being able to backdate his shareholding with ASIC. The Tribunal is of the position that as ASIC is Australia’s corporate regulator, and administers the laws under the Corporations Act 2001; if they have deemed the applicant’s explanation as sufficient to amend the register of shareholdings to reflect he has held a 100% shareholding from 10 November 2012, the Tribunal will accept this on face value and not look behind the document.

    CONCLUSION

25. The Tribunal is satisfied that the applicant meets r. 1.11(1)(c)(iii) as the ASIC public records for Australian Anthura Pty Ltd now reflect the applicant has held a 100% shareholding since 10 November 2012. It is therefore appropriate for the Tribunal to remit the matter to the Department to consider the remaining criteria for the grant of the subclass 892 visa.

26. The Tribunal finds that as the second and third named applicants applied on the basis of being family unit members of the first named applicant, their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

27. The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the applicant meets the following criteria for a subclass State/Territory Sponsored Business Owner (Residence) visa:

    ·Regulation 1.11(1)(c)(iii) for the purposes of meeting cl.892.211(1) of Schedule 2 to the Regulations.

    Cathrine Burnett-Wake
    Member