Star (Migration) - [2022] AATA 2040

Star (Migration) [2022] AATA 2040 (21 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Alexander Star
Mrs Alexandra Star
Ms Sofiya Star
Ms Avily Maria Star
Ms Lei Alexandra Star
REPRESENTATIVE:  Mr Harbir Singh N Durgadev Singh (MARN: 0004151)
CASE NUMBER:  1930763
HOME AFFAIRS REFERENCE(S): BCC2018/620103 BCC2018/654196
MEMBER:Peter Ranson
DATE:21 June 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Residence) (Class DF) visas.

Statement made on 21 June 2022 at 9:41am

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – ownership interest in main business – active operation at all relevant times – ‘main business’ definition – failure to include Business Activity Statements (BAS) in the visa application – ‘time of application’ criterion – objective temporal test – contemporaneous evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 54, 55, 65, 134
Migration Regulations 1994 (Cth), r 1.03, 1.11A; Schedule 2, cls 892.211, 892.321

CASES
Nasirzadeh & Ors v Minister for Immigration & Anor [2019] FCCA 1115

STATEMENT OF DECISION AND REASONS

INTRODUCTION

Mr Alexander Star and his family are from Russia. They came to Australia progressively from 2009 to 2014 and Mr Star started a business sourcing fresh fruit and vegetables as well as herbs and spices exporting them to various counties including their native Russia. They were granted Subclass 163 visas which were due to expire on 13 February 2018 and they sought and obtained sponsorship from Business & Skilled Migration Queensland (BSMQ). Armed with that sponsorship they applied for Subclass 892 visas on 5 February 2018. On 25 October 2019, a delegate of the Minister for Home Affairs refused to grant them Business Skills (Residence) (Class DF) visas under s 65 of the Migration Act 1958 (Cth) (the Act). Mr Star then applied on 30 October 2019 for review of that decision.
At the time of application, Class DF contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and Subclass 893 (State/Territory Sponsored Investor). Mr Star and his family 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 (Cth) (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.
The delegate in this case refused to grant the visas on the basis Mr Star did not satisfy the requirements of cl.892.211 of Schedule 2 to the Regulations because there was an absence of information with the application to establish his ownership interest in the export business and BAS for the two years immediately before the time of application were not included in the application.
The issue in this case centres around what documents were submitted with the application and…

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.

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Details

Case: [2022] AATA 2040
Decision Date: 21 June 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning Mr Star's application for a Subclass 892 (State/Territory Sponsored Business Owner) visa. The primary applicant, Mr Star, sought to have the delegate's decision affirmed, with secondary applicants applying as members of his family unit. The core dispute revolved around whether Mr Star met the visa criteria, specifically regarding his ownership interest in a main business and its active operation during the relevant period.

The Tribunal was required to determine whether Mr Star satisfied the criteria for the Subclass 892 visa, including demonstrating an ownership interest in a main business that was actively operated throughout the two-year period immediately preceding the application date (5 February 2016 to 4 February 2018). A further issue was whether the failure to include Business Activity Statements (BAS) in the visa application prejudiced Mr Star's ability to satisfy the 'time of application' criterion.

The Tribunal reasoned that the 'time of application' criterion required objective, contemporaneous evidence to establish that the criteria were met at that specific point. It found that the absence of the BAS, which would have provided crucial evidence of the business's active operation and Mr Star's involvement during the application period, meant that the primary criteria were not satisfied. Consequently, the secondary applicants, who relied on being part of Mr Star's family unit, also failed to meet the visa requirements. The Tribunal affirmed the delegate's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has decided that the decision under review should be affirmed. Mr Star appeared before the Tribunal on 16 June 2022 to give evidence and present arguments (the Hearing). The Tribunal also received oral evidence from Mr Star’s former business partner, Mr Georgiy Hleborodov (known as George). The Hearing was conducted with the assistance of an interpreter in the Russian and English languages. The applicants were represented in relation to the review by Mr Harbir Singh (known as Harry) who also attended the Hearing. All parties attended the Hearing by video link facilitated by the Tribunal utilising Microsoft Teams. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of Mr Star, Mr Singh and Mr Hleborodov. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied all parties were given a fair opportunity to give evidence and present arguments. The secondary applicants applied based on being members of the family unit of the Applicant. The delegate found the secondary applicants could not be granted Subclass 892 visas, as they did not meet the primary criteria, nor did they meet the secondary visa criterion (cl.892.321) requiring them to be members of the family unit of a person who met the primary visa criteria. Certain criteria must be satisfied during the two-year period ending immediately before the date of application, that is, 5 February 2016 to 4 February 2018 (the Application Period). Cancellation of business visas In this section:

Ratio Decidendi

Legal Principle Established

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