TAGHAVIPOOYA (Migration) - [2019] AATA 5470

TAGHAVIPOOYA (Migration) [2019] AATA 5470 (27 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Seyedeh Tiam TAGHAVIPOOYA
CASE NUMBER:  1722309
DIBP REFERENCE(S):  BCC2016/49314 BCC2016/49743 BCC2017/3898134
MEMBER:Keith Kendall
DATE:27 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa:
· cl.892.211(1) of Schedule 2 to the Regulations.
Statement made on 27 November 2019 at 3:05pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – main business – level of applicant’s ownership interest in company operating business at relevant times – change of company shareholder structure – oversight by accountant – restructure submitted to ASIC at later date and backdated to earlier date – no inquiry by ASIC as to legitimacy of backdating – treated as late lodgement with penalty fee – acceptance for corporations law does not extend to migration law – consideration of evidence from applicant and related owners of business – family business conducted with some informality – inconsistencies of evidence reflective of informality and time elapsed – backdating not solely to satisfy requirements for visa – decision under review remitted
LEGISLATION
Migration Act 1959 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.11(1)(c)(ii), Schedule 2, cls 892.211(1), 892.221(a)
CASES
Rahbarinejad v MIBP [2018] FCCA 2293
Razmara (Migration) [2018] AATA 5858
Shahpari v Minister for Border Protection [2016] FCCA 513
Yang v Minister for Immigration and Border Protection [2014] FCCA 1576
Yew (Migration) [2019] AATA 1540
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 13 September 2017 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 892 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 24 December 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 applicant in this case is seeking to satisfy the criteria for the grant of a Subclass 892 (State/Territory Business Owner) visa, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl.892.211(1) of Schedule 2 to the Regulations because the delegate was not satisfied that the business conducted by the applicant was not a “main business” on the basis that the applicant did not have an ownership interest of at least 30% at all relevant times.
The applicant appeared before the Tribunal on 6 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from two other witnesses, being members of…

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

AGLC: TAGHAVIPOOYA (Migration) [2019] AATA 5470
Case: [2019] AATA 5470
Decision Date: 27 November 2019

CaseChat Overview and Summary

This matter concerned an application for a Business Skills (Residence) (Class DF) visa, specifically a Subclass 892 (State/Territory Sponsored Business Owner) visa. The applicant, Mr. Taghavipoooya, sought review of a decision concerning his eligibility for this visa. The central dispute revolved around whether the applicant held the requisite ownership interest in the company operating the main business for the periods stipulated by the migration regulations.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied clause 892.211(1) of the Migration Regulations 1994. This clause requires an applicant to have had an ownership interest in an actively operating main business in Australia for at least two years immediately before the visa application and to continue to hold that interest at the time of application. The Tribunal was required to consider the nature of the applicant's ownership interest as a shareholder in Triten Group Pty Ltd (formerly Tirajeh Group Pty Ltd), whether the business was actively operating, and if it qualified as a "main business" during the relevant periods.

The Tribunal's reasoning focused on the applicant's ownership interest in Triten Group. While acknowledging that the company's shareholder structure had been altered and subsequently backdated for submission to ASIC, the Tribunal found that the evidence, despite some inconsistencies reflective of informality and the passage of time, did not solely indicate an intention to satisfy visa requirements. The Tribunal concluded that the applicant did meet the ownership interest criterion under clause 892.211(1).

Consequently, the Tribunal remitted the application to the Minister for reconsideration. The direction was that the applicant meets the ownership interest criterion for the Subclass 892 visa, allowing for the assessment of the remaining eligibility requirements.

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 matter should be remitted.CONSIDERATION OF CLAIMS AND EVIDENCE The central issue in the present case is whether the applicant held the requisite ownership interest in the company operating the business under cl.892.211(1).Ownership interest in main business 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 continue to satisfy this requirement at the time of this decision: cl.892.221(a). 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. The business relied on by the applicant to satisfy these requirements is operated through a company named Triten Group Pty Ltd (ACN 156 554 497) (Triten Group), which was formerly named Tirajeh Group Pty Ltd (Tirajeh Group). Accordingly, the Tribunal must consider the nature of the applicant’s interest in this business, whether the business was actively operating and whether it met the definition of ‘main business’ in the period commencing two years immediately prior to the date of application and as at the date of application. The evidence indicates that Triten Group does not operate with a trading name, operating through its legal name. Does the applicant have an ownership interest in each business relied on at all relevant times? An ‘ownership interest’, in relation to a business, means an interest in the business as:·a shareholder in a company that carries on the business, or·a partner in a partnership that carries on the business, or·the sole proprietor of the business;including such an interest held indirectly through one or more interposed companies, partnerships or trusts: r.1.03 of the Regulations and s.134(10) of the Act. Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of r.1.11A of the Regulations, set out in the attachment to this decision: r.1.11A(1). In order to meet cl.892.211(1) the Tribunal must be satisfied that the applicant had an interest of this kind in the relevant business or businesses both at the time of making that application and for the two years immediately before. As has been noted, the business the subject of this application is operated through a company, Triten Group. Therefore, the issue for consideration under this criterion is whether the applicant had an ownership interest as a shareholder in this company at the relevant times. Records provided obtained from the database maintained by the Australian Securities and Investments Commission (ASIC) indicate that Triten Group was incorporated on 29 March 2012 (initially as Tirajeh Group).

Decision

Reasons for decision

Given the findings above, the Tribunal is satisfied that cl.892.211(1) is met. The appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Business Skills (Residence) (Class DF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa: ·cl.892.211(1) of Schedule 2 to the Regulations.Keith KendallMemberATTACHMENT - LEGISLATIONMigration Regulations 19941.03DefinitionsIn 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.Migration Act 1958134Cancellation 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.

Ratio Decidendi

Legal Principle Established

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