Sharifi Zad (Migration)

[2019] AATA 6717

Sharifi Zad (Migration) [2019] AATA 6717 (5 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Saeed Sharifi Zad

Mrs Shekoofeh Peymani Foroushani

Mr Amir Arshia Sharifi Zad

Mr Amir Arsalan Sharifi Zad

CASE NUMBER:  1732249

HOME AFFAIRS REFERENCE(S): BCC2016/3281874 BCC2016/3353874

MEMBER:Mary Sheargold

DATE:5 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Residence) (Class DF) visas.

Statement made on 05 December 2019 at 11:54am

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) visa – Business Activity Statements for the relevant period not supplied with application – applicant’s strained relationship with business director – access denied to Australian Taxation Office records – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 134
Migration Regulations 1994, Schedule 2, cls 892.211, 892.311; rr 1.03, 1.11

CASES

Nasirzadeh & 2 Ors v Minister for Immigration & Border Protection, [2019] FCCA 1115

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 15 December 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 28 September 2016. 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 applicant did not satisfy the requirements of cl.892.211(2)(b) of Schedule 2 to the Regulations because he did not include all Business Activity Statements (BAS) required by the Australian Taxation Office for the 2 years from 28 September 2014 to 27 September 2016 with his application.

4. The applicants appeared before the Tribunal on 28 October 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

5. The applicants were represented in relation to the review by their registered migration agents, Mr Dean Khaze and Mr Reza Aein, of Home Migration Services Pty Ltd.  Mr Khaze attended the Tribunal hearing by telephone link.

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

   Non-disclosure certificate issued pursuant to s.376 of the Act

7. The Department issued a non-disclosure certificate over 3 folios contained in its file pursuant to s.376 of the Act.  The non-disclosure certificate is dated 2 February 2018 and states that disclosure of the material in folios 140B, 143B, and 146B of the Departmental file would be contrary to the public interest because “the emails listed above contain personal information regarding people and business not directly associated with this visa application.  They should not be released for confidentiality and privacy reasons.

8. At the hearing, the Tribunal told the applicants that it found the certificate to be invalid, and invited them to comment on the validity of the non-disclosure certificate.  After consultation with their representative, and confirming that the material subject to the certificate did not contain any information in relation to the applicants themselves, the applicants advised the Tribunal that they did not wish to comment on the validity of the non-disclosure certificate.  The Tribunal told the applicants that the material subject to the invalid non-disclosure certificate was not relevant to the issue before the Tribunal in this matter. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the first named applicant included all BAS statements for the main business nominated in the application, Aus Co Supplies Pty Ltd, for the period covering 28 September 2014 to 27 September 2016, in the application to the Department.

   Relevant background

10. According to information from the Australian Securities and Investments Commission (ASIC) and discussed with the applicants at the hearing, the first named applicant, Mr Sharifi Zad, established the company Aus Co Supplies Pty Ltd on 12 August 2013.  Mr Sharifi Zad gave evidence that the company’s main business is the import of Iranian products to Australia for wholesale to Iranian and Afghani shops and supermarkets around the country.  Mr Sharifi Zad remained the sole director and secretary of the company until 10 April 2014, when the director and secretary roles were taken over by Mr Mohammad Taghi Khoshkhabar.  Mr Sharifi Zad remained a 30% shareholder in the company.

11. The sole director and secretary changed numerous times prior to this visa application being lodged with the Department, but according to ASIC’s records, Mr Sharifi Zad has always maintained a 30% shareholding in the company.  The sole director and secretary at the time the visa applications were lodged was Mr Reza Ghaasem Javadeh.  There is evidence before the Tribunal that Mr Sharifi Zad and Mr Javadeh had a strained relationship during the time that the applicants were preparing the documentation for this visa application.  At the hearing, Mr Sharifi Zad gave evidence that he has always been the manager of the business, despite the directorship and secretary roles being handed to others.  Mr Sharifi Zad stated that he had a number of disagreements with Mr Javadeh, and that Mr Javadeh had refused to provide the BAS statements that Mr Sharifi Zad requested in order to lodge this visa application.

12. Mr Aein provided written submissions to the Tribunal prior to the hearing, dated 24 October 2019. Mr Aein repeated evidence provided to the Department during the time it had requested further evidence from the applicants in terms of provision of lodged BAS for the relevant period.  Mr Aein notes, which is reflected in the delegate’s decision, that several BAS provided with the application were unprocessed versions.  These BAS were for the periods 1 July 2015 to 30 September 2015, 1 October 2015 to 31 December 2015, and 1 April 2016 to 30 June 2016.

13. Mr Aein notes that on 13 December 2017, submissions were made to the Department explaining the circumstances surrounding the dispute with Mr Javadeh.  It was stated that:

    The Accountant could not release the documents until it could obtain an approval from the current director, Mr Reza Javadieh [sic].  Only electronic lodgements declaration copies are obtained from the Accountant.

    Currently the Director is having a dispute with the Applicant who is a shareholder of the business.  With conflict of interest, the Director is not willing to assist and provide these requested documents.

14. At the hearing, the Tribunal asked Mr Sharifi Zad if he had repaired his relationship with Mr Javadeh, and Mr Sharifi Zad indicated that he had.  He stated that Mr Javadeh ordinarily resided in Dubai, and that Mr Sharifi Zad had carriage of the day to day business.  The Tribunal questioned whether Mr Sharifi Zad had a good working relationship with the new director and secretary, Mr Behrouz Sattari Sagharloo.  The Tribunal notes that Mr Sagharloo was appointed as the director and secretary on 25 March 2018.  In response to the Tribunal’s question, Mr Sharifi Zad expressed surprise and confusion.  On showing the ASIC current and historical company extract to Mr Sharifi Zad, he considered the details and stated he was not aware that a new director had been appointed.

15. The Tribunal notes it accepts Mr Sharifi Zad’s evidence in relation to the issues he encountered in being able to provide evidence of lodged BAS at the time the applicants made their visa application.  The implications of this are considered below.

    Did the applicant provide the required BAS at the time the visa application was made?

16. Clause 892.211(2)(b) requires a visa applicant to include, as part of the application, all BAS that would be required by the ATO for a set period – in this case, the period was determined as 28 September 2014 to 27 September 2016.  The provision states:

    892.211(2)(b) For each business…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 (emphasis added).

17. In the primary decision, the delegate acknowledged that Mr Sharifi Zad had attempted to meet the requirements of cl.892.211(2)(b) by providing the unprocessed BAS for the periods where he did not have access to copies of processed BAS.  The delegate considered the Department’s policy set out in the Procedure Advice Manual 3 (PAM3), which stated that:

    …the decision maker must be sure that the BAS statements have been lodged with the ATO, and states that a BAS that has been printed prior to lodgement with the ATO is not sufficient evidence of lodgement, and will therefore not meet the requirements for regulation 892.211(2)(b).

18. In Mr Aein’s submissions dated 24 October 2019, he argues that:

    …with the information that the Applicant was struggling in obtaining the lodged BAS Statements, the Delegate could have counter-checked the veracity of the Statements with the ATO.  As explained by the Applicant in his statement, he had a misunderstanding with the current Director of the Company thus, he was not able to have access to the relevant documents.  As a law-abiding person, he exerted all lawful means to obtain the copies of the relevant BAS even to the point of personally meeting an officer at the Australia Tax Office [sic] but to no avail.

19. Mr Aein also pointed to section 5.2 of the PAM3 in his submission dated 24 October 2019.  He quoted:

    Decisions (sic) makers should exercise flexibility in cases where originals of BAS are already held with the ATO and certification of these statements is not possible at time of application lodgement. Xxx (omission ours).

20. Mr Aein’s argument is that:

    It is therefore obvious that the unprocessed BAS statements submitted in reply to the 17 October 2017 request by the Delegate should have been treated in the same context and flexibility as that afforded to the uncertified copies of those official statements.  They should have been regarded as verifiable representations of the contents of those official public documents.

21. At the hearing, the Tribunal noted that whilst the Tribunal is not bound by Departmental policy, it would consider the applicants’ arguments in relation to the application of the PAM3 guidelines in this context.  After the hearing, the Tribunal reflected on the policy set out at section 5.2 in relation to the 892 visa subclass.  The Tribunal observed that the “xxx (omission ours)” in Mr Aein’s submission was in fact a critical omission in respect of the policy, and the Tribunal wrote to the applicant on 28 October 2019 requesting further submissions as to why the applicants felt that, in accordance with the Department’s PAM3 guidelines, the delegate should have exercised flexibility in relation to BAS statements required at the time the visa applications were lodged.

22. In its letter to the applicants dated 28 October 2019, the Tribunal quoted the full text of paragraph 5.2 in the relevant PAM3 guidelines.  This section states:

    Decisions makers should exercise flexibility in cases where originals of BAS are already held with the ATO and certification of these statements is not possible at time of application lodgement.  In this scenario, applicants are able to request copies of all lodged BAS, free of charge, through the ATO (emphasis added).

23. On 11 November 2019, the applicants provided further evidence in relation to Mr Sharifi Zad’s efforts to obtain the relevant lodged BAS prior to the lodgement of the visa applications.  The applicants provided three statutory declarations.  These declarations are from Mr Sharifi Zad dated 11 November 2019; from Mr Seyed Hossein Hakimi dated 8 November 2019; and from Mr Reza Amiri, dated 7 November 2019. In his covering letter, Mr Aein states that:

    The documents herein provided demonstrate that (a) Certification of ATO-lodged BAS from the company Accountant and Director was not possible at the time of the application lodgement; and (b) the applicant exerted all means available to him to obtain the information required by the Department of Home Affairs by approaching the Australian Tax Office (sic) in Melbourne VIC to request for the issuance of the relevant Compnay BAS to no avail.

24. In Mr Sharifi Zad’s statutory declaration, he states:

    On 4 October 2016, I lodged with the then Department of Immigration and Border Protection and now called the Department of Home Affairs, an application for a class DF State/Territory Sponsored Business Owner subclass 892 visa.

    In the course of my said visa application, I was requested on 17/10/2017 by the now Department of Home Affairs to provide evidence of my involvement in the management of my business including the processed Business Activity Statements that were submitted to the ATO for the two years immediately before the lodgement of my application or from 28 September 2014 to 27 September 2016.

    Mr Reza Ghasem Javadieh (sic) is the current Director of the company and was appointed as such on 27/01/2017.  During this time, I had a disagreement with Mr Javadieh and our business relationship soured to the point that he would not authorise the company Accountant to release documents and information to me which I was otherwise entitled to have.

    Due to my soured business relationship with the present Company Director, I was unable to obtain all the original ATO-lodged BAS statements of the company for the required period.  I also exerted all efforts necessary to obtain the said BAS by requesting a copy from the ATO office however, since I was no longer a Director of the Company back then, I was not permitted to access those original lodgements. As a consequence, my visa application was refused by the Delegate of the Department of Home Affairs.

    On 14/12/2017, I was accompanied by my long-time friend and colleague Seyed Hossein HAKIMI at the said ATO office to request for copies of my Company’s BAS Statements and he was present when I received advice from the ATO that they could not issue the related BAS to me since I was not the Director of the company and no authority was given to me in this respect.

    I also shared my predicament with one of my friends Reza AMIRI who referred me to his Accountant.  The Accountant, Mr. Chris Belden confirmed that I could not unilaterally obtain the company’s BAS statements without the consent and approval of the then current Company Director.  Mr Amiri is also aware of me approaching the ATO office in Melbourne VIC and the negative result that followed.

25. In Mr Hakimi’s statutory declaration, he states:

    I am aware that Mr Sharifi Zad had a falling out with his co-owner and the Director of his Company AUS CO SUPPLIES PTY LTD and because of this strained business relationship, Mr Sharifi Zad was deprived of his right to secure copies of his Company’s Financial Statements and Business Activity Statements.

    On 14/12/2017, I accompanied Mr Saeed Sharifi Zad to the ATO office in Melbourne VIC to request for the copies of the Business Activity Statements (BAS) of his company AUS CO SUPPLIES PTY LTD.

    Mr Sharifi Zad was unsuccessful in securing the said BAS statements of his company from the ATO since according to the latter, Mr Sharifi Zad was not the Director of the Company and therefore, was not authorised to transact with the ATO and obtain information regarding the company.

26. In Mr Amiri’s statutory declaration, he states:

    I am aware that Mr Sharifi Zad had a falling out with his co-owner and the Director of his Company AUS CO SUPPLIES PTY LTD and because of this strained business relationship, Mr Sharifi Zad was deprived of his right to secure copies of his Company’s Financial Statements and Business Activity Statements.

    I offered my help to Mr Sharifi Zad by introducing him to my own Accountant Mr Chris Belden.  While Mr Sharifi Zad was discussing his predicament with my Accountant, I heard the Accountant’s advice to Mr Sharifi Zad that he could not obtain his company’s financials including the BAS statements without the consent and authority of the Company Director.

    I am also aware that Mr Sharifi Zad approached the ATO office in Melbourne VIC to request for the copies of the Business Activity Statements (BAS) of his company AUS CO SUPPLIES PTY LTD.

    Mr Sharifi Zad informed me that he was unsuccessful in securing the said BAS statements of his company from the ATO since according to him, the ATO could only entertain requests of that nature if they were the current Director of the Company or were authorised to transact with the ATO and obtain information regarding the company.

27. The Tribunal accepts the evidence before it contained in the 3 statutory declarations, and finds that Mr Sharifi Zad did make considerable efforts to obtain the additional documents requested by the Department to support the visa applications.  The Tribunal has also considered further submissions made to the Tribunal by Mr Reza Aein, dated 27 November 2019, that Mr Sharifi had made further efforts to investigate with the ATO whether he had the right to obtain copies of lodged BAS to support his visa application.  Those submissions conclude that as Mr Sharifi Zad was neither a primary contact nor an authorised contact for Aus Co Supplies Pty Ltd, he had no capacity to obtain the statements, despite being a 30% shareholder in the business.  While the Tribunal accepts that Mr Sharifi Zad was bound by circumstances beyond his control, the Tribunal notes that cl.892.211(2)(b) clearly states that the relevant lodged BAS must have been included with the application.

28. At the hearing, the Tribunal questioned Mr Sharifi Zad in relation to his decision to give up the directorship and secretarial roles within the company in 2014.  Mr Sharifi Zad told the Tribunal that he simply wanted to contribute 30% of the capital for the business plus his business knowledge, and that he was comfortable in the role of General Manager of the company, a role that he has held continuously since the company was established.

29. The Tribunal notes that, for the purposes of determining whether Mr Sharifi Zad can meet cl.892.211(2)(b) of the Regulations, the nature of the dispute between himself and Mr Javadeh is not relevant.  The Tribunal notes that the facts surrounding the applicants finding themselves in these circumstances are that Mr Sharifi Zad relinquished his directorship and secretarial roles in Aus Co Supplies Pty Ltd more than 2 years prior to the visa applications being lodged; that the director and majority shareholder at the time the Department requested additional information from the applicants was received was Mr Javadeh and that Mr Sharifi Zad and Mr Javadeh did not have a functional working relationship at the end of 2017, that Mr Sharifi Zad exhausted all avenues to otherwise obtain the information requested by the Department, and that ultimately, he was not successful in doing so.

30. The Tribunal notes Mr Sharifi Zad’s evidence that he has since reconciled his differences with Mr Javadeh, and notes that satisfactory evidence in relation to the BAS for the relevant period has been provided to the Tribunal at review.  However, the Tribunal finds that at the time the application was made, Mr Sharifi Zad did not provided the requisite level of evidence in relation to the BAS for the relevant period, and as such, he cannot satisfy cl.892.211(2)(b).

1. In reaching this finding, the Tribunal has considered the Federal Circuit Court’s recent decision in Nasirzadeh & 2 Ors v Minister for Immigration & Border Protection[1] where Driver J found that cl. 892.211(2)(b) imports an “objective temporal test” as to “whether or not the BAS were included with the visa application.” The court went on to hold that the Regulation importing the test was valid, and that late lodgement of the BAS did not meet the requirement in the Regulation. The court further noted that this was not an issue (late lodgement) considered by the delegate, but was nonetheless a relevant consideration in determination of the application on review. In determining that the Regulation was valid, Driver J noted:

   In my view, the criterion in issue serves a clear purpose of requiring applicants for this class of visa to establish business activity as a going concern over a period of two years prior to their visa application. Further, while there may be harsh consequences, as the applicants have sought to demonstrate in this case, that is not enough to establish invalidity.[2]

   [1] [2019] FCCA 1115 ‘Nasirzadeh’

   [2] ibid at par 41 per Judge Driver

2. This Tribunal finds that the Regulation requires that the applicant submit all BAS required by the ATO for the relevant period of 2 years, included (meaning “with”) the application at the time of lodgement. For the reasons set out above, the Tribunal is satisfied that the applicants did not submit the required BAS included in the application. The Tribunal finds that the submission of the BAS to the Tribunal at review rather than the Department at the time the application was made, as in this instance, does not meet the requirement in the Regulation.

3. The Tribunal is cognisant of the “harsh consequences” for the applicants in this case as alluded to by Driver J in Nasirzadeh, and recognises the significant passage of time from the visa application being lodged with the Department to the Tribunal’s decision.  The Tribunal acknowledges the ongoing impact this uncertainty has caused for the applicants.  In particular, the Tribunal acknowledges the severe impact on the mental health of Mr Sharifi Zad’s eldest son.  However, the Tribunal notes that it has no discretion to consider the compassionate and compelling circumstances of the visa applicants in making its findings as to whether Mr Sharifi Zad can satisfy cl.892.211(2)(b) of the Regulations.

4. Given the findings above, the Tribunal is not satisfied that cl.892.211(2) is met.

5. Because one of the essential requirements for the grant of the visa is not met, the decision under review must be affirmed.

6. Further, because the first named applicant is unable to satisfy cl.892.211(2)(b), the secondary applicants are unable to satisfy cl.892.311 because they are not the members of a family unit of a person who holds a Subclass 892 visa granted on the basis of satisfying the primary criteria for the grant of the visa.  Therefore, the decisions in relation to the secondary applicants must be affirmed.

   DECISION

7. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

   Mary Sheargold
   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.