Sato v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1273
•12 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sato v Minister for Immigration and Citizenship [2025] FedCFamC2G 1273
File number(s): BRG 553 of 2021 Judgment of: JUDGE EGAN Date of judgment: 12 August 2025 Catchwords: MIGRATION LAW – Where the applicant failed to establish that he had an ownership interest in one or more main businesses over a two-year period before he made application for a visa – where no jurisdictional error established on the part of the Tribunal – application dismissed. Legislation: Migration Act 1958 (Cth), s. 65
Migration Regulations (1994) (Cth), cl. 188.232
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of hearing: 2 July 2025 Place: Brisbane Counsel for the Applicants: The Applicant appeared on his own behalf Solicitor for the First Respondent: Ms L. Helsdon, Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
BRG 553 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HAMEED ULLAH SATO
First Applicant
TOBAHANA SATO
Second Applicant
NAFI MUHAMMED SATO
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
12 AUGUST 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship.”
2.The name of the Second Respondent be amended to “Administrative Review Tribunal.”
3.The Originating Application filed on 9 December 2021 be dismissed.
4.The First Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $8,371.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a citizen of Japan who applied for a Business Skills (Class EB) Business Innovation and Investment (Provisional) (Extension) Sub-Class 188 Visa on 9 July 2020. The application for the visa had been made on behalf of two children of the applicant, as well as one Mr Chaudhry. The success or otherwise of the applicant’s visa application would be determinative in respect of the visa applications made on behalf of the others.
On 13 November 2020, a delegate of the Minister refused to grant the applicant the visa under s. 65 of the Migration Act 1958 (Cth) (the Act).
The applicant sought review of the decision of the delegate by the then Administrative Appeals Tribunal (the Tribunal).
On 5 November 2021, the Tribunal in its written reasons found that it had no jurisdiction to review the decision made in respect of Mr Chaudhry because he was not within the Australian migration zone at the time of the making of the application for review by the Tribunal.
The Tribunal otherwise affirmed the decision of the delegate.
On 9 December 2021, an Originating Application for Review was filed on behalf of the applicant. That application for review, on its face, did not purport to make application for review on behalf of the applicant’s two children. For reasons later discussed in this judgment, it is unnecessary to determine whether the application for review was so made on behalf of the children or not.
Grounds of Review
At the hearing before the Court, the applicant withdrew his reliance upon Ground 1 of the Originating Application for Review.
Grounds 2 and 3 of the Originating Application for Review were as follows:
2. That I requested for legal status in Australia.
3. Establishment of farming.
Reasons of the Tribunal
In its reasons, the Tribunal recorded that it proceeded to consider the application for review on the papers because the applicant had not responded to requests made by the Tribunal for the applicant to provide it with further information. [1] Its valid reason for doing so was as set out at [5] – [10] inclusive of its reasons as follows:
5. On 15 October 2021 the Tribunal wrote to the review applicants pursuant to s 359 of the Act, inviting them to provide information about the State/Territory government agency nomination and information about their ownership interest in one or more actively operating main businesses in Australia.
6. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 29 October 2021 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
7. The review applicants have not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicants are 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 [201 OJ FCAFC 40.
8. In determining whether to proceed to a decision on this review, the Tribunal has considered the history of this case and the applicant's engagement with the Tribunal.
9. On review, the applicant provided a copy of the delegate's decision record and some information relevant to a request for a fee reduction, but he did not provide any submissions or additional information about his nominated business or address the concerns raised by the delegate in the decision record. The applicant has not, since lodging the review application, contacted the Tribunal or provided supporting documents which demonstrates that he is engaged with the review process.
10. The Tribunal invited the applicant to provide information relevant to various requirements for the visa, however, the applicant did not contact the Tribunal regarding this request. He also did not provide the information or request an extension of time to provide the information. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address. The email containing the invitation was not returned to the Tribunal as undelivered mail. Furthermore, as detailed below, the Tribunal on 25 October 2021 invited the applicant to comment on the validity of a non-disclosure (s.375A) certificate, the applicant was given 7 days to provide comments in writing but again did not do so. Having regard to all the circumstances and the history of this case, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.
[1] Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.
The Tribunal further held that the applicant did not satisfy the relevant criteria for the grant of the visa under cl. 188.232 of the Migration Regulations (1994) (Cth) (the Regulations) which relevantly provided as follows:
188.232
(1) Either:
(a) for at least the 2 years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia; or
(b) if the applicant holds or held a Subclass 188 visa in the Business Innovation stream (the innovation stream visa) or a Subclass 188 visa in the Business Innovation Extension stream (the extension stream visa) during a concession period and the innovation stream visa that the applicant holds or held was granted before 1 July 2019—the applicant had an ownership interest in one or more main businesses that were actively operating in Australia for a cumulative period of at least 2 years while the applicant was the holder of the innovation stream visa or the extension stream visa.
(2) The applicant continues to have the ownership interest mentioned in subclause (1).
The Tribunal found that the criteria under cl. 188.232(2) of the Regulations had not been satisfied, in that for at least the two years immediately before the making of the visa application, the applicant had not had any relevant ownership interest in one or more main businesses which were actively operating in Australia. The reasons of the Tribunal for so finding were as set out at [15] – [30] of its reasons as follows:
Ownership interest in a main business that is actively operating in Australia
15. Clause 188.232 requires that, for at least the 2 years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia: cl.188.232(1 ). In addition, the applicant must continue to have the ownership interest mentioned in subclause (1): cl.188.232(2)
16. The applicant applied for the Subclass 188 (Extension) visa on 9 July 2020. The relevant two years immediately before the application was made is therefore between 9 July 2018 and 8 July 2020.
17. In the application form, the applicant nominated a farming business (banana farm) in lnnesfail QLD which he indicated was operated by him as a sole trader (Hameed Ullah Sato ABN: 45788463780). The applicant indicated that he became involved in the business in May 2017 and claimed 100% ownership interest in the business. The applicant indicated that the turnover of the business in the most recent fiscal years (2019 and 2020) was $0.
18. Other than evidence of land ownership and ABN Registration, there was limited supporting evidence provided by the applicant which demonstrated that he had an ownership interest in an actively operating banana farm business as claimed.
19. On 1 September 2020, the delegate requested the applicant provide further supporting documents, including evidence of business ownership and operations, such as a business name extract and the purchase agreement for the business, business activity statements for the preceding two years, Itemised client account from the ATO portal for the business and evidence of the applicant's involvement in the management and decision making process of the nominated business.
20.On 27 September 2020 the applicant informed the Department that he is unable to provide the requested documents, that his accountant is preparing the tax returns for the relevant years and that he would be submitting the requested documents as soon as possible.
21. On 30 September 2020 the Department informed the applicant that his application would be re-assessed again on 19 October 2020 and any further information he submits prior to that date would be considered.
22. On 18 October 2020 the applicant sent a further email to the Department advising that he had been in contact with his accountant to complete his tax returns and when the tax returns had been completed he would lodge his request for State Nomination.
23. On 6 November 2020 the Department informed the applicant that a further extension would not be provided and that a final assessment of his application would be undertaken on 13 November and any documents lodged prior to that date would be considered.
24. On 12 November 2020 the applicant lodged various documents including ABN Lookup indicating that the ABN for Hameed Ullah Sato was registered on 1 June 2017 and registered for GST on 1 April 2019. Also provided was a draft tax return for the applicant for the 2019 and 2020 financial years indicating the description of the main business/professional activity as Share Ride Driving - Uber. The draft tax returns for the applicant for 2018 noted the description of the main business/professional activity as 'other fruit and crops growing'. The applicant also provided a form completed by and signed by him on 20 October 2020 for Queensland State Nomination, together with a Form 1414 (State Nomination) which was signed by the applicant but not endorsed by any State/Territory authority for the purpose of the Subclass 188 (Extension) visa.
25. The evidence on the Department's file regarding the applicant's involvement in business activities in Australia was somewhat limited and lacking in substance. While the draft tax returns for the applicant suggest that he may have worked, or operated under an ABN, an uber driver service and earned an income from growing crops, it is not clear on the evidence whether the business or businesses nominated by the applicant operated for the full two years immediately before the application was made. There is also very limited evidence to demonstrate that the business or businesses nominated by the applicant is a 'main business', as defined in r.1 .11(1)1, and in particular sub-paragraph (b) which requires the applicant to demonstrate that he 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.
26. The 2019 and 2020 tax returns suggest that the applicant may have been working as an Uber driver. There is limited evidence on the Department's file about the applicant having managed the day-to-day operations of a business, including making decisions affecting its direction and performance. The applicant has also not provided any evidence to the Tribunal which demonstrates that he has been involved in the management of the business. Given the limited evidence before it, the Tribunal is not satisfied that at least one of the businesses nominated by the applicant is a 'main business'.
27. For these reasons, the Tribunal is not satisfied that for at least the 2 years immediately before the application was made, the applicant had an ownership interest in one or more main businesses that were actively operating in Australia. The Tribunal is therefore not satisfied that the applicant met cl.188.232(1).
28. In any case, and in addition to the above, the Tribunal is not satisfied that, as at the time of this decision, that the applicant continues to have the ownership interest relied upon at the time of application. As noted above, the applicant was invited to provide information about whether he continues to have an ownership interest in at least one of the main businesses relied upon in the application, but he has not done so. In the circumstances, the Tribunal is not satisfied that the applicant continues to have an ownership interest in at least one main business that is actively operating in Australia. It follows, that the applicant does not satisfy the requirement in cl.188.232(2).
29. Given the above, the Tribunal finds that the applicant does not meet cl. 188.232 for the grant of the visa.
30. While it is not necessary for the Tribunal to go on and consider any of the other requirements for the Subclass 188 (Extension) visa, for the sake of completeness and because it was the issue on which the delegate refused to grant the visa, the Tribunal has decided to consider the evidence provided in respect of this requirement.
There was no evidence before the Tribunal demonstrating that the Tribunal had erred when arriving at its decision under cl. 188.232(2) of the Regulations.
Further, the Tribunal also validly found that there was no evidence before it in relation to another essential criterion for the grant of the visa, namely the requirement under cl. 188.212 of the Regulations that it be demonstrated to the Tribunal that the nominating State or Territory government agency had not withdrawn the nomination. The Tribunal set out its reasons for so finding at [31] – [39] of its reasons as follows:
Nomination by a State/Territory government
31. Clause 188.212 requires an applicant for the Subclass 188 (Extension) visa to demonstrate that the nominating State or Territory government agency or the CEO of Austrade has not withdrawn the Nomination.
32. The requirement does not indicate any validity period of the Nomination by either the State/Territory government agency or Austrade. Presumably, the applicant would have been nominated by a State/Territory government agency (which the applicant indicated was the State of Queensland) to be granted the initial Subclass 188 (Business Innovation and Investment (Provisional)) visa. So, on its face, this requirement suggests that unless there is evidence to the contrary, i.e. evidence that the Queensland government agency has withdrawn the Nomination, then the Nomination continues to be in effect.
33. There is no information on the Department's file which suggests that this initial Nomination by the Queensland government agency in respect of the applicant has since been withdrawn, however, information on the Department's file and Departmental policy suggests that to satisfy the requirement in cl.188.212 for the Subclass 188 (Extension) visa, an applicant must provide a completed Form 1414 demonstrating that the State/Territory nomination has not been withdrawn.
34. In this case, the Form 1414 (which was completed and signed by the applicant) was provided to the Department and indicated that it was in respect of a Subclass 188 (Extension) visa. This suggests that this is the process in place for applicants to demonstrate that they continue to be nominated by the State/Territory agency, or that the nomination has not been withdrawn.
35. Part 8 of Form 1414 is required to be completed by the State/Territory agency attesting to their assessment of the applicant's identity, business activities and contribution to the objectives of the business skills program and signed/stamped by the relevant agency. Part B of the Form submitted by the applicant to the Department was neither completed or signed by the State/Territory agency. The applicant also provided a copy of his Application for Queensland State Nomination, however, there was also no indication on that form of any endorsement or approval by the Queensland agency.
36. While the Tribunal considers the requirement in cl.188.212 to be somewhat awkwardly worded, in that it requires that the Nomination has not been withdrawn, it appears that the process in place to satisfy this requirement actually requires the applicant to provide an updated endorsement from the relevant State/Territory government agency to verify that they continue to be nominated (or supported) by the State/Territory agency, thereby placing the onus on the applicant to demonstrate that the nomination has not been withdrawn.
37. In this case, the applicant was requested by the Department on 1 September 2020 to provide a Form 1414 endorsed by the relevant State/Territory government agency. While the applicant has provided to the Department a completed form indicating that he had made a request for Queensland State Nomination and had also submitted a completed and signed Form 1414, neither of these forms appear to have been endorsed/stamped by the State/Territory government agency. On review, the Tribunal requested the applicant to provide evidence that a nomination in relation to him had been endorsed by the nominating State/Territory government or evidence from the relevant State/Territory government agency confirming that the nomination in relation to him has not been withdrawn. However, as noted above, the applicant did not provide the requested information.
38. Notwithstanding the Tribunal's remarks, above, about the wording of this provision, the
Tribunal considers that even if the applicant was nominated by a State/Territory agency sometime in the past for the purpose of the initial Subclass 188 visa, the applicant should, for the purpose of the Subclass 188 (Extension) visa, be able to provide current evidence to demonstrate that the relevant State/Territory agency continues to nominate him and/or that they have not withdrawn the nomination in relation to him.
39. Despite being requested by the Department, and the Tribunal on review, the applicant has not provided evidence that the nominating State/Territory government agency has not withdrawn the nomination. In the circumstances, the Tribunal is unable to be satisfied, at the time of this decision, that the nomination in relation to the applicant has not been withdrawn. The Tribunal accordingly finds that the applicant does not satisfy cl.188.212
The Hearing Before the Court
The applicant sought an extension of time for the filing of the Originating Application for Review, but such application was unnecessary because proceedings were commenced within time. It was unnecessary for the Court to further consider such application.
At the hearing before the Court, the applicant gave no coherent reason why the Court ought to grant the application for review.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
Grounds 2 and 3 of the Originating Application for Review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan . Associate:
Dated: 12 August 2025
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