Sadri (Migration)

[2019] AATA 5897

Sadri (Migration) [2019] AATA 5897 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Hadi Sadri

Mrs Zohrehalsadat Khalifehsoltani

Mr Mohammad Sadra Sadri

Miss Soufiya Sadri

CASE NUMBER:  1714249

HOME AFFAIRS REFERENCE(S): BCC2015/1855782 BCC2015/1856157 BCC2016/1518508 BCC2016/1518514 BCC2016/1518533

MEMBER:R. Skaros

DATE:18 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first named review applicant a Business Skills (Residence) (Class DF) visa.

The Tribunal has no jurisdiction in respect of the second, third and fourth named review applicants.

Statement made on 18 December 2019 at 11:52am

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) – Subclass 892 (State/Territory Sponsored Business Owner) – qualifying business – company deregistered – no longer operating in Australia – have not supplemented stock – no jurisdiction in relation to other applicants – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2 cls 892.211, 892.221, r 1.11

CASES

Hasran v MIAC [2010] FCAFC 40
Yang v Minister for Immigration and Border Protection [2014] FCCA 1576

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 and Border Protection on 19 June 2017 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 29 June 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.

3. The delegate in this case refused to grant the visas on the basis that the first named visa applicant (the applicant) did not satisfy the requirements of cl.892.211(1) and 892.221(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s business continued to be a qualifying business, as required by the definition of main business in r.1.11(1)(d). The delegate noted, on the basis of information provided by the applicant, that the business’ physical store had closed following the end of the lease. The delegate also observed that the applicant had not supplemented their stock since March 2013 despite claiming to sell their products online.

4. The applicants provided a copy of the delegate’s decision record with the application for review.

5. The Tribunal notes that the second, third and fourth named review applicants were not in Australia at the time of the application for review. In the circumstances, they have not made a valid application for review and the Tribunal has no jurisdiction to review the decisions in relation to them.

6. During the processing of the review, unfavourable information came before the Tribunal which suggested that the business, in which the applicant had an ownership interest, is no longer actively operating in Australia. This information raised concerns about whether the applicant would be able to satisfy the time of decision requirement in cl.892.221 which requires the applicant to continue to meet the requirements in cl.892.211.

7. On 9 September 2019 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting the review applicants to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to ASIC records indicating deregistration of the company nominated by the applicant. The Tribunal explained to the applicant the relevant of the information and the consequences if it relied on that information. 

8. The invitation was sent to the applicant at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 23 October 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal is satisfied that the invitation to comment was properly sent to the correct email address. The email has not been returned to sender as undeliverable. The applicant has not made any contact with the Tribunal regarding the progress of their application since shortly after lodgement of the application for review in July 2017. To date the applicant has not provided any comments in response to the adverse information and there is nothing before the Tribunal which suggests that a response is forthcoming. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

11. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant meets the requirements in cl.892.221.

    Ownership interest in main business

13. Clause 892.211(1) 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 continued to have that interest at the time the visa application was made. The applicant must also continue to satisfy this requirement at the time of this decision: cl.892.221(a).

14. No more than two businesses can be nominated for this purpose (r.1.11(2)) and only one or both of the businesses relied on to meet the time of application criterion can be relied on to meet the time of decision criterion: Yang v Minister for Immigration and Border Protection [2014] FCCA 1576.

15. The business relied on by the applicant to satisfy these requirements is Global First Pty Ltd

    
    

    (ACN 145 938 432) which was involved in the sale of Persian carpets, handmade items and books.  The applicant provided evidence of his ownership interest in the nominated business which included an Australian Securities and Investment Commission (ASIC) statement indicating that the applicant held shares in Global First Pty Ltd – being the company that carries on the business. 

16. Current information obtained from ASIC indicates that Global First Pty Ltd was deregistered on 28 January 2018 and the ABN cancelled on 23 April 2018. This information suggests that the applicant, at the time of this decision, does not continue to have an ownership interest in an actively operating main business in Australia.

17. As noted above, the applicant was invited to comment on the above information but he has not done so.

18. To meet the requirement in cl.892.221(a), the Tribunal must be satisfied that the applicant continues to satisfy the requirement in cl.892.211(1) at the time of this decision. This requires the Tribunal to be satisfied that, at the time of decision, the applicant continues to have an ownership interest in the main business, being the business nominated at the time of application, which is actively operating in Australia.

19. The evidence before the Tribunal is that Global First Pty Ltd, being the company which carried on the applicant’s business, has been deregistered. On the basis of this evidence, the Tribunal is not satisfied that the applicant continues to have an ownership interest in an actively operating main business in Australia at the time of this decision.

20. Consequently, at the time of this decision, the applicant does not continue to satisfy the requirements in cl.892.211(1). Therefore the requirement in cl.892.221(a) is not met.

21. Given the above finding, the Tribunal must affirm the decision under review.

22. In relation to the secondary applicants, as noted above, the Tribunal does not have jurisdiction in relation to them.

    DECISION

23. The Tribunal affirms the decision not to grant the first named review applicant a Business Skills (Residence) (Class DF) visa.

24. The Tribunal has no jurisdiction in respect of the second, third and fourth named review applicants.

    R. Skaros
    Senior Member

    
    

    ATTACHMENT - LEGISLATION

    Migration Regulations 1994

    1.03Definitions

    In these Regulations, unless the contrary intention appears:

    …

    ownership interest has the meaning given to it in subsection 134(10) of the Act.

    …

    qualifying business means an enterprise that:

    (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.

    …

    1.11Main business

    (1)For the purposes of these Regulations and subject to subregulation (2), a business is a main 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, direct and 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 a 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.

    (2)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.

    1.11A Ownership for the purposes of certain Parts of Schedule 2

    (1)Subject to subregulation (4), for Parts 132, 188, 888, 890, 891, 892 and 893 of Schedule 2, ownership by an applicant, or the applicant’s spouse or de facto partner, of an asset, an eligible investment or an ownership interest, includes beneficial ownership only if the beneficial ownership is evidenced in accordance with subregulation (2).

    (2)To evidence beneficial ownership of an asset, eligible investment or ownership interest, the applicant must show to the Minister:

    (a)a trust instrument; or

    (b)a contract; or

    (c)any other document capable of being used to enforce the rights of the applicant, or the applicant’s spouse or de facto partner, as the case requires, in relation to the asset, eligible investment or ownership interest;

    stamped or registered by an appropriate authority under the law of the jurisdiction where the asset, eligible investment or ownership interest is located.

    (3)A document shown under subregulation (2) does not evidence beneficial ownership, for subregulation (1), for any period earlier than the date of registration or stamping by the appropriate authority.

    (4)Beneficial ownership is not required to be evidenced in accordance with subregulation (2) if the person who has legal ownership of the asset, eligible investment or ownership interest in relation to which the applicant, or the applicant’s spouse or de facto partner, has beneficial ownership:

    (a)is a dependent child of the applicant; and

    (b)made a combined application with the applicant; and

    (c)has not reached the age at which, in the jurisdiction where the asset, eligible investment or ownership interest is located, he or she can claim the benefits of ownership of the asset, eligible investment or ownership interest.

    Migration Act 1958

    134Cancellation of business visas

    ….

    (10)In this section:

    ….

    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.