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 the applicant’s family who had been involved in the business in some capacity, including as former shareholders.
Evidence was taken from Mr Amin Shayan and Mrs Nina Shayan, who are the applicant’s aunt and uncle respectively. As noted, both of these parties are former shareholders in the company operating the business the subject of the application. Both Mr and Mrs Shayan gave evidence as to the events surrounding the change of the company shareholder structure in 2012, which was the critical event in the timeline in the determination of this matter and considered at length below.
The Tribunal notes that the other shareholder on record is Ms Manigeh Shokr Khodaian, the applicant’s mother. Ms Shokr Khodaian has an application currently before the Tribunal arising from the same factual scenario described in this matter that raises similar issues.
Most evidence at the hearing was taken from the applicant, who provided a background to the business being operated, which is essentially a building project co-ordinator. The applicant described the events leading up to the business being established, where her and her family visited Australia from Iran some time in 2010, appreciated the opportunities that were possible in operating a business in Australia and made a family decision to immigrate ultimately to Australia to operate a business. The applicant described the additional business and political instability that began in Iran due to international sanctions being applied against that country in 2012 and 2013, which reinforced the family’s decision to move to Australia. The applicant explained that her family had previously (and continued to do so at that time) operate other businesses in Iran, although these were unrelated to the business undertaken in Australia. The family had decided to use their business experience from Iran in Australia and commenced a search for an appropriate opportunity.
The applicant explained that the business presently being undertaken was established in 2012. The applicant and her mother established the business with some guidance from Mr Amin, who had had some experience working in Australia at that time and, therefore, had some understanding of Australian regulatory requirements. The business has subsequently operated successfully under the guidance of the applicant and Ms Shokr Khodaian, who, according to the evidence taken from all witnesses at the hearing, have been the only two principals in the business, providing all the finance and personal effort (as principals).
As is discussed at length below, the evidence taken at the hearing supporting this being the de facto structure, although this was not reflected at all times in the formal legal documentation recording the corporate structure. This represents the critical issue for consideration in this application.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing. Throughout this application, the representative provided a number of submissions both prior to and subsequent to the hearing that were of great assistance to the Tribunal, which the Tribunal gratefully acknowledges.
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).
Evidence was provided in the form of directors’ resolutions and share certificates (as well as referred to in the representative’s submission prior to the hearing) that the applicant first obtained an ownership interest in Triten Group on 13 April 2012. As discussed at length below, there is some contention as to the extent of this ownership interest, however, for the purpose of this criterion, it is necessary that the applicant had only an ownership interest in Triten Group. The evidence indicates that there was an issue of new shares on 13 April 2012 in which the applicant held a 20% ownership interest in Triten Group after the share issue. The Tribunal is satisfied that the applicant held an ownership interest in Triten Group of at least 20% as at this date (the extent of the ownership interest is determined below).
There is no evidence to suggest that the applicant divested herself of this interest at any stage (indeed, as set out below, the evidence indicates that the applicant only ever increased her ownership interest after first acquiring the interest).
As the application was lodged on 24 December 2015, the relevant period for testing the ownership interest is 24 December 2013 until 24 December 2015. As the Tribunal is satisfied that the applicant obtained her initial ownership interest on 13 April 2012 and had not relinquished this interest at any time, the Tribunal is satisfied that the applicant had an ownership interest in the business (in the form of a shareholder in the operating company) at the time of application and for the two years prior to the application being made.
Accordingly, the Tribunal is satisfied that the applicant did have and does have an ownership interest in the nominated business at all relevant points in time.
Was each business relied on actively operating at all relevant times?
In order to meet cl.892.211(1) the Tribunal must be satisfied that the relevant business or businesses were actively operating both at the time of making the visa application and during the two years immediately before. In order to meet cl.892.221(a) the applicant must continue to satisfy this requirement at the time of this decision.
The term ‘actively operating’ is not defined in the Act or Regulations. In considering whether this requirement is met, the Tribunal may consider whether the business exhibited activity of a ‘repetitive, continuous and permanent character’ at the relevant times, in which the business actively sought to generate business, in fact generated trade and custom and derived some financial gain for its activities in the relevant period: Shahpari v Minister for Border Protection [2016] FCCA 513 at [71].
The records obtained from the ASIC database indicate that Triten Group has been continuously registered from the date of incorporation (29 March 2012). The applicant also provided evidence in the form of bank statements and financial reports up until December 2015 indicating that Triten Group had been actively operating for the two years up to and including the date of application (24 December 2015). All evidence received at the hearing was consistent with Triten Group actively operating during this period (and continuing to do so until the time of this decision). The applicant also provided four letters of recommendation from clients (all dated February 2017) referring to work done during the period leading up to the application being lodged.
Accordingly, the Tribunal is satisfied that the nominated business was actively operating at all relevant points in time.
Does each business relied on satisfy the definition of ‘main business’ at all relevant points in time?
In order to satisfy the requirements of cl.892.211(1), the business or businesses relied on by the applicant must meet the definition of ‘main business’ at the time of application and during the two years immediately before. Clause 892.221(a) requires that the applicant continues to satisfy this requirement at the time of decision. The term ‘main business’ is defined in r.1.11 of the Regulations and is set out in full in the attachment to this decision. There are four elements to the definition, each of which must be satisfied for a business to be a main business.
Firstly, the applicant must have or have had an ownership interest in the business. ‘Ownership interest’ is defined in s.134(10) of the Act: r.1.03. If a beneficial interest is relied on for these purposes, certain evidentiary requirements must also be met: r.1.11A. These provisions are set out in full in the attachment to this decision.
As set out above, the Tribunal is satisfied that the applicant has had an ownership interest in the business.
Secondly, the applicant must maintain or have 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.
All evidence received at the hearing is that the applicant takes an active role in the management of the business, from day to day activities as well as active involvement in making decisions affecting the overall direction and performance of the business.
The applicant also provided four letters of recommendation from clients, all referring to the applicant by name as having been involved in the services received. The applicant also provided a quotation for work dated 1 September 2015 that was signed by the applicant.
There is no evidence to contradict the applicant’s active role in the business.
In light of the above evidence, the Tribunal is satisfied that the applicant maintained a direct and continuous involvement in the management of the business.
Thirdly, 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 must meet certain thresholds:
·if the business is operated by a publicly listed company, the value of the ownership interest must be at least 10% of the total value of the business;
·if the businesses is not operated by a publicly listed company and the annual turnover of the business is at least AUD400 000, the value of the ownership interest must be at least 30% of the total value of the business;
·If the business is not operated by a publicly listed company and the annual turnover of the business is less than AUD400 000; the value of the ownership interest must be at least 51% of the total value of the business.
As noted above, this is the central issue of concern in this matter.
On 13 April 2012, the shareholder structure (the first structure) of Triten Group (at that time, named Tirajeh Group) was altered by issuing new shares and transferring existing shares. The original structure (that had been in place for approximately for two weeks) had Mr and Mrs Shayan as 50% shareholders.
The new share structure (the second structure) involved a transfer of Mr Shayan’s shares, such that he was no longer a shareholder. As a result of this transfer and the issue of the new shares, Mrs Shayan became a 55% shareholder, the applicant a 20% shareholder, Ms Shokr Khodaian a 20% shareholder and Mr Seyed Ahmad Taghavipooya (the applicant’s father) a 5% shareholder.
This transaction and the resulting share structure are uncontroversial, although the circumstances surrounding this restructure necessitate some analysis, which is considered below.
The applicant claims that on that same date, 13 April 2012, a further restructure was undertaken (the third structure) in which shares were transferred such that the resulting structure was that the applicant and Ms Shokr Khodaian became 50% shareholders. While the third structure is accepted as being in place at the time of this decision, it is the timing and the circumstances surrounding the third structure that are the subject of controversy and represent the critical consideration in respect of this criterion.
The applicant has provided evidence in the form of a special purpose financial report for the year ended 23 December 2015 disclosing sales of $927,366. This report has comparison figures dated 2014 (presumably for the year ended 30 June 2014, although this is immaterial for this criterion) showing sales of $737,393. Business activity statements were also provided to the Tribunal that are consistent with these figures. The Tribunal is satisfied that these figures constitute the turnover for the business and, as the turnover for the business during these years is above $400,000 and Triten Group is not a publicly listed company, the relevant shareholding benchmark is 30% as per r.1.11(1)(c)(ii) of the Regulations (paragraph (b) in the list above).
In brief, if it is accepted that the third structure was implemented and effective as of 13 April 2012, then the applicant satisfies this criterion. However, if the third structure was not implemented and effective until some time after 24 December 2013 (being two years prior to the application being lodged), then the applicant fails to meet this criterion.
The ASIC records indicate that the second structure was registered on 13 April 2012. The applicant provided the completed ASIC Form 484 that was lodged with ASIC and dated 13 April 2012 to implement the second restructure. The name of the company on this form was Tirajeh Group, which was the company’s name as at 13 April 2012. The applicant also provided a copy of a Directors’ Resolution dated 13 April 2012 (noting the company name as Tirajeh Group) as well as share certificates consistent with the second restructure.
ASIC records indicate that the company changed its name from Tirajeh Group to Triten Group on 3 September 2013.
ASIC records indicate that the third restructure was submitted to ASIC on 18 September 2015 and backdated to 13 April 2012. The backdating was accepted by ASIC which records the third restructure as having been implemented as of 13 April 2012.
The applicant’s representative made two submissions to the Tribunal, the first dated 5 September 2019 and the second dated 6 October 2019. Both of these submissions include, in part, an assertion (implicit in the first submission and made explicit in the second) that the Tribunal, in light of ASIC having accepted the backdating and implemented the third restructure in its records from 13 April 2012, does not have the power to “look behind” the ASIC documents and to accept the third restructure as recorded in the ASIC database. That is, as ASIC has given effect to the third restructure as of 13 April 2012, the Tribunal should accept this record without further inquiry.

In the second submission (dated 6 October 2019), the representative stated “that neither legislation nor policy permit the Tribunal to ‘go behind’ the transaction leading to ASIC registering [the applicant’s] shareholding at 50% as at 13 April 2012.” The submission did not cite any part of the relevant legislation or policy that explicitly prohibits the Tribunal from doing so.
In support of this submission, the representative cited the Tribunal decisions in Razmara (Migration) [2018] AATA 5858 and Yew (Migration) [2019] AATA 1540. Both of those decisions involved a backdating of ASIC records to amend shareholding structures, with the amendments bringing the applicant in each case in line with the requirements for cl.892.211(1).
Both decisions state that if ASIC, as the corporate regulator, has “deemed the applicant’s explanation as sufficient to amend the register of shareholdings to reflect [the backdated structure], the Tribunal will accept this on face value and not look behind the document” (emphasis added); see Razmara at [24] and Yew at [18].
The Tribunal notes that, prior to coming to this conclusion, the Tribunal in Razmara considered the legitimacy of the backdating at some length before terminating its inquiry and accepting the ASIC register.
With respect, the submission made in this regard is rejected. At the hearing, the representative specifically inquired of the Tribunal whether the Tribunal would be inclined to “look behind” the ASIC documents. The Tribunal indicated that it was so inclined unless it could be demonstrated that ASIC had undertaken an inquiry and accepted the explanation provided prior to registering the third structure. In that eventuality, the Tribunal would accept the ASIC documents on their face consistent with the applicant’s submission. The Tribunal invited the applicant at the hearing to provide submissions subsequent to the hearing setting out any evidence or information that such an inquiry had been undertaken.
The applicant did not provide any evidence or other information to indicate that such an inquiry was undertaken. To the contrary, a letter was provided by the applicant’s accountant dated 13 September 2019 that indicated (amongst other matters) that as they anticipated that ASIC did not grant penalty remissions for late lodgements, no submission was made to ASIC to explain the reasons behind the late lodgement.
Based on the evidence before it, the Tribunal is of the position that ASIC accepts the backdating of shareholder records, treating them as late lodgements, and charges an increased fee accordingly. However, no inquiry is made as to the legitimacy of the backdating and, specifically, whether the contents of the lodgement reflect the substantive position as disclosed in those documents. Consequently, it may be seen that ASIC accepts such lodgements for the purposes of maintaining and administering the corporate register. However, this does not equate to an acceptance of the substantive position such that the Tribunal must accept the documents at face value in the manner that the applicant has submitted.
The Tribunal’s duty in this matter is to apply the migration law as it applies to the applicant’s circumstances. While ASIC’s acceptance of the backdated documents may be effective for corporations law purposes, this does not, in the absence of legal authority to the contrary, extend to other areas of law.
As a matter of policy, given the evidence indicates that ASIC adopts such submissions as an administrative exercise and accepts such late lodgements without any inquiry, the Tribunal should inquire, where relevant, as to the legitimacy of the purported backdated structure. If the Tribunal is to accept such records without further inquiry, this would lead to a situation where applicants could backdate documents in order to satisfy migration law requirements regardless of the substance of the position. In such circumstances, the shareholding requirement in cl.892.211(1) (and associated regulations) would be rendered a nullity if such backdated documents that had not been independently verified could be used as conclusive proof of the legal position in this regard.
As the applicant has not drawn the Tribunal’s attention to any binding legal authority requiring it to accept the backdated documents on their face, the Tribunal is of the position that it may inquire into the circumstances surrounding the purported backdating for the purposes of applying cl.892.211(1). This is also consistent with the comments from the Federal Circuit Court in Rahbarinejad v MIBP [2018] FCCA 2293 at [27], where the Court, whilst discussing a different aspect of cl.892.211, stated that the Tribunal’s duty is to conduct an inquisitorial investigation into the applicant’s claims and is “required to investigate the totality of the factual scenario [presenting] itself to the tribunal.” While those comments were made in respect of a different element of cl.892.211, they do, in the Tribunal’s view, accurately reflect the Tribunal’s duty in the conduct of its merits review, particularly where questions about the veracity of legal forms may arise.
Much of the hearing was, consequently, dedicated to taking evidence of the circumstances surrounding the second and third structures. There was some inconsistency in the oral evidence received from the witnesses, particularly whether professional advice had been taken by the applicant and her associated family members prior to implementing either or both of the second or third structures. The evidence received was consistent in that all witnesses stated that the applicant, Ms Shokr Khodaian and Mr and Mrs Shayan had all met twice on 13 April 2012, although there was some inconsistency in the location of these meetings.
The Tribunal accepts that the inconsistencies are reflective of the time that has elapsed since the events in question (over seven years) rather than any dishonesty on the part of any witness. Indeed, it would be more remarkable should the evidence received from all three witnesses been completely consistent given this passage of time. Consequently, the Tribunal does not place any weight on these inconsistencies to disregard the oral evidence received and has assessed this evidence in light of submissions received since the hearing as well as the other evidence received in respect of this matter.
The submission from the applicant, supported by the other witness evidence received at the hearing, was that the family (collectively, the applicant, Ms Shokr Khodaian, Mr and Mrs Shayan and Mr Taghavipooya) met on 13 April 2012 and agreed to the second structure. This second structure was designed to bring the applicant and Ms Shokr Khodaian into the shareholding structure to reflect their involvement in the business.
The Tribunal has confirmed with Departmental records that the applicant, Ms Shokr Khodaian and Mr Taghivapooya were in Australia on 13 April 2012.
Subsequently on that same date, the family had another meeting in which it was concluded that the second structure did not accurately reflect the contributions being provided by the applicant and Ms Shokr Khodaian. The consensus at this subsequent meeting was that the applicant and Ms Shokr Khodaian collectively were providing all of the finance for the business and would be providing all the personal effort into the business operations. As such, the family felt that this should be reflected in the formal shareholding and it was decided that this would be achieved via the third structure.
This decision was then communicated to the applicant’s accountant. However, the accountant submitted the documents for the second structure with ASIC, but not those relating to the third structure.
At the hearing, the Tribunal raised a number of concerns with the narrative presented by the applicant. The Tribunal queried why the two meetings took place in such temporal proximity (being on the same date) and came to significantly different conclusions whilst addressing the same subject matter. The Tribunal queried whether professional advice had been taken, to which, as noted above, inconsistent evidence was provided (although this inconsistency has been discounted in recognition of the amount of time that had passed since the events in question).
The Tribunal also noted that the documents provided in support of the third structure, being the directors’ resolution and share certificates, also contained inconsistencies with the explanation that they reflected decisions made on 13 April 2012. In particular, it was noted that these documents were prepared naming Triten Group as the relevant company, whereas at that date, the company’s name was Tirajeh Group (which was reflected on the documents supporting the second structure). Further, the directors’ resolution was signed by only the applicant and Ms Shokr Khodaian, whereas Mrs Shayan and Mr Taghavipooya were also directors as at 13 April 2012 (and whose signatures were on the resolution implementing the second structure). The Tribunal notes that Mrs Shayan and Mr Taghavipooya had been removed as directors, according to ASIC records, on 3 September 2013, being the same date as the change to company name.
The Tribunal stated at the hearing that these documents appeared to be more consistent with a scenario that those implementing the second structure reflected the events that took place on 13 April 2012, but that those implementing the third structure had not been prepared on that date. In particular, this was based on the observation that the documents implementing the third structure reflected alterations made to the company, including the name change and change of directors, some time after 13 April 2012 and particularly on or after 19 September 2013 (the time by when those changes had taken effect).
Subsequent to the hearing, the representative provided a submission dated 6 October 2019 clarifying the events surrounding the meetings held on 13 April 2012 and the related documents that were lodged with ASIC (in addition to reasserting the position that the Tribunal should not “go behind” the ASIC documents). This submission was supported by written statements provided by the applicant and Mr Shayan (both dated 20 September 2019) and the business’ accountant (dated 13 September 2019).
The events described may be summarised as follows. The initial meeting (at which the second structure was agreed upon) took place at the accountant’s premises at which the relevant documents implementing that structure were prepared and signed. After this had taken place, the family left the accountant’s premises.
The second meeting took place later on that day at which it was agreed that the third structure better reflected the family’s intentions. The third structure was agreed upon and the accountant contacted with this new information. It was requested that the accountant provide new documents for signature that would implement the third structure.
This last request was never actioned by the accountant, who lodged the documents implementing the second structure (which is reflected in the ASIC records). In September 2015 (approximately three months prior to the visa application being lodged), it was realised that the third structure had not been implemented and immediate action was undertaken to rectify this situation by lodging the ASIC documents, which were registered on 18 September 2015.
On balance, the Tribunal accepts this version of events. The Tribunal harbours some reservations, however, in light of the evidence provided, this narrative is plausible and, ultimately, accepted.
To accept this version of events, the Tribunal acknowledges that many small businesses are conducted with a degree of informality, particularly, as is the case here, where all the principals are related family members. The evidence obtained at the hearing included submissions that the applicant and her family members were not very familiar with Australian regulatory requirements, which explains some of the inattention.
Critically for the Tribunal to accept these submissions is that it explains why the documents implementing the third structure, specifically the company name and the directors who signed the forms, do not reflect the position as of 13 April 2012 (which was raised at the hearing). These details reflect the position as of 18 September 2015, when the documents were lodged with ASIC. For the purposes being considered here (i.e. for satisfaction of cl.892.211), this evidence supports the narrative that has been put forward. Had the applicant been of a mind to misrepresent the position, these details would more likely have been amended to reflect the position as of 13 April 2012.
As the business is one operated and controlled in all respects by close family members, the Tribunal accepts that the business has been conducted with a certain degree of informality. Inattention to ASIC documents, especially as these are not records requiring regular attention (in contrast with, for example, maintaining financial records) is accepted as being a likely feature of businesses operated in such an informal nature. It should be noted that the Tribunal does not regard these matters as unimportant or a “mere technicality” (adopting the words of one witness at the hearing). However, in addressing the substantive matters at issue in this case, this inattention does not automatically lead the Tribunal to conclude that the requirements of the visa have not been satisfied in the circumstances at hand.
The Tribunal’s acceptance of the applicant’s submissions is not without reservation. It cannot be conclusively stated that the applicant did not backdate the documents in order to satisfy cl.892.211 once it came to light that the corporate structure would not satisfy the requirements for the visa. However, if that were the motivation, then it would have been more likely that the applicant would have backdated those documents only to the minimal extent where the shareholding requirement would be met, that is, 24 December 2013 or shortly before. It was not necessary for the documents to be backdated to 13 April 2012. That they were done so, in light of the submission provided, lends credence to that narrative.
The Tribunal is also concerned about the readiness with which applicants are prepared to accuse their accountant or other professional adviser as the basis for their failure to ensure that regulatory requirements are met. In many cases, it would seem that this explanation represents a convenient excuse for what has been a deficiency in the preparation of an application by the applicant and/or their migration agent. Such accusations carry serious reputational and possibly legal consequences for these professionals and should not be made lightly. In this case, the accountant has admitted to the oversight, indicating that the submission is not without foundation, leading the Tribunal to accept it in this matter. Consequently, these comments are not to be seen as criticism of the applicant or her authorised representative in this case but, rather, a critique of submissions observed to have been made in similar cases.
In light of the foregoing, the Tribunal accepts the version of events that the applicant has submitted. The Tribunal accepts that the applicant held a 50% shareholding in Triten Group as of 13 April 2012. As this shareholding is above the 30% threshold, and was in place before the commencement of the two year holding period, the Tribunal is satisfied that the applicant meets this criterion.
Finally, the business must be a qualifying business. ‘Qualifying business’ is defined as an enterprise that 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 is not operated primarily or substantially for the purpose of speculative or passive investment: r.1.03.
All evidence indicates that the business provided building project services. Letters of recommendation from clients as well as a quotation for works have been referred to above. All evidence received at the hearing indicated that the business actively provided services in return for the revenue it generated.
There is no evidence to suggest that the business was operated on a merely passive or speculative basis.
Accordingly, the Tribunal is satisfied that the business is a qualifying business as it was operated for the purpose of making profit through the provision of services.
Accordingly, the Tribunal is satisfied that the nominated business does meet the definition of main business at all relevant points in time.
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 Kendall
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.
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.