Shahpari (Migration) - [2015] AATA 4032

Shahpari (Migration) [2015] AATA 4032 (30 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Nahid Shahpari
Miss Popak Bafekr
Mr Arta Bafekr
CASE NUMBER:  1404673
DIBP REFERENCE(S):  CLF2012/218603 CLF2012/218604
MEMBER:Fraser Syme
DATE:30 July 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.
Statement made on 30 July 2015 at 3:30pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 February 2014 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visa on 26 October 2012. The delegate refused to grant the visa on the basis that the first named applicant did not meet the requirements of cl.890.212 as the delegate was not satisfied that the first named applicant and/or her spouse had net assets of at least $100,000 in the main business Karamadan Overseas Pty Ltd (“Karamadan”) and throughout the period of 12 months ending immediately before the application was made.
The first and second named applicants appeared before the Tribunal on 13 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.
The applicants were represented in relation to the review by their registered migration agent. The migration agent provided several submissions attaching supporting documents before the hearing and attended the hearing in person. At the hearing, the Tribunal agreed to a request the applicants provide further evidence and submissions on or before 20 July 2015.
For the following reasons, the Tribunal has concluded that the [decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the first named applicant had an ownership interest in one or more actively operating main businesses in Australia in the 2 years immediately before the application was made for the purpose of cl.890.211. An extract of the relevant legislation is annexed to this decision.
Main business is defined in r.1.11, and the requirements include:
a.The first named applicant has an ‘ownership interest’ in the business;
b.The first named applicant has maintained a direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business;
c.The value of the ownership interest of the first named applicant and the second named applicant in the business was at least 10% of the total value of the business; and
d.The business is a ‘qualifying business’.
The meaning of ‘ownership interest’ in r.1.03 and s.134(10) includes a shareholder in a company that carries on the business.
The definition of qualifying business is set out in r.1.03 and the requirements include that the first named applicant’s business is operated for the purpose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shahpari (Migration)

Details

AGLC: Shahpari (Migration) [2015] AATA 4032
Case: [2015] AATA 4032
Decision Date

CaseChat Overview and Summary

The case of Shahpari involves an application for Business Skills (Residence) (Class DF) visas, with the decision under review concerning the eligibility of the first named applicant, who is also the director of a company called Karamadan. The central issue is whether the applicant had an ownership interest in an actively operating main business in Australia in the two years immediately preceding the application, as required by cl.890.211 of the relevant legislation. The Tribunal had to determine if Karamadan met the criteria for a qualifying business, including the active operation of the business, the applicant's ownership interest, and their continuous involvement in the management of the business.

The Tribunal evaluated the evidence provided, which included ASIC documents, financial statements, and business activity statements (BAS). It was noted that Karamadan had an Australian Business Number (ABN) and had submitted the required BAS to the Australian Taxation Office (ATO). However, the evidence showed a significant gap in recorded turnover between 2009 and the July-September quarter of 2011, raising questions about the active operation of the business during the relevant period. Additionally, the financial statements and ASIC records were described as "messy," partly due to inexperience of the first accountant and bookkeeper.

Upon considering the evidence and the ministerial guidelines, the Tribunal concluded that the applicants' case did not warrant a referral to the Minister for a discretionary decision under s.351. The Tribunal ultimately affirmed the decision not to grant the applicants the Business Skills (Residence) (Class DF) visas. The applicants retain the option to make a direct request to the Minister.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the [decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the first named applicant had an ownership interest in one or more actively operating main businesses in Australia in the 2 years immediately before the application was made for the purpose of cl.890.211. An extract of the relevant legislation is annexed to this decision. Main business is defined in r.1.11, and the requirements include:a.The first named applicant has an ‘ownership interest’ in the business; b.The first named applicant has maintained a direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business;c.The value of the ownership interest of the first named applicant and the second named applicant in the business was at least 10% of the total value of the business; andd.The business is a ‘qualifying business’. The meaning of ‘ownership interest’ in r.1.03 and s.134(10) includes a shareholder in a company that carries on the business. The definition of qualifying business is set out in r.1.03 and the requirements include that the first named applicant’s business is operated for the purpose of making a profit through the provision of goods and/or services and is not speculative or passive investment. Did Karamadan actively operate a main business for two years? To meet the requirements of cl.890.211(1), Karamadan must be a qualifying business and the first named applicant must have actively operated Karamadan for at least 2 years immediately before the application is made. To meet the requirements of cl.890.211(2)(b) at the time of making the visa application, Karamadan must have: an ABN; submitted to the ATO all BAS required by the ATO and included those BAS in the application. On the basis of the ASIC documents provided to the delegate, the Tribunal accepts the first named applicant has an ownership interest in and is a director of Karamadan and that Karamadan has an ABN. The question before the Tribunal is whether Karamadan was an actively operating business during the period 26 October 2010 to 26 October 2012. The evidence before the delegate was Karamadan undertook an initial shipment of saddles from Australia to Iran in 2009. The next recorded turnover is in the July-September quarter 2011 BAS. At the hearing, the Tribunal indicated whether Karamadan is a main business was a different issue to the one on which the delegate made the decision under review. The Tribunal noted the applicants had since provided further evidence regarding their shareholder loans to Karamadan. The Tribunal further noted that the financial statements and ASIC records of Karamadan were messy. The second named applicant explained their reliance Mr H, a former director of Karamadan, was the reason why the ASIC records were confusing. He further explained the accounts were confused due to their first accountant and then their bookkeeper being inexperienced.

Decision

Reasons for decision

As discussed during the hearing, the Tribunal has had regard to whether the applicants’ case is one which it should refer to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter. The Tribunal notes that the applicants can still make a request directly to the Minister.DECISION The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.Fraser SymeMember

Ratio Decidendi

Legal Principle Established

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