Variagin (Migration) - [2023] AATA 3147

Variagin (Migration) [2023] AATA 3147 (20 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sergei Variagin
Miss Valeriia Variagina
Mr Vladislav Variagin
Mr Daniil Variagin
Miss Diana Variagina
REPRESENTATIVE:  Mr Christopher Levingston
CASE NUMBER:  2113172
HOME AFFAIRS REFERENCE(S): BCC2018/6149700 BCC2019/4721670 BCC2019/4721772

MEMBER:Peter Ranson
DATE:20 September 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the applications for Business Innovation and Investment (Permanent) visas for reconsideration, with the direction the first named visa applicant meets the following criteria:
·cl.888.222 of Schedule 2 to the Regulations.

Statement made on 20 September 2023 at 10:52am

CATCHWORDS
MIGRATION – Business Skills (Permanent) (Class EC) visa – Subclass 888 (Business Innovation and Investment (Permanent)) – ownership interest in actively operating main business – direct and continuous involvement in day-to-day management – property development – time taken to find, purchase, design, gain approval, build and sell properties – applicant solely responsible for all business activities – decision made without hearing necessary – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(10), 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.03, 1.11, 1.11A(1), Schedule 2, cls 888.222(1)(a), 888.311

CASES
Drake v MIEA (No 2) (1979) 2 ALD 634
Ibrahim v MIAC [2009] FCA 1328
Shahpari v MIBP [2016] FCCA 513

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Mr Variagin and his family are from Russia. He is an engineer and applied his skills to property development in Australia through his own company. Property development can be a drawn-out process of finding sites suitable for development, obtaining the necessary approvals, arranging the works and then the sale hopefully at a profit. Small scale property development businesses generally only have one project on the go at any one time and given the process involved, each project can take years to complete. This is the case for Mr Variagin.
Mr Variagin and his family applied for their visas on 14 January 2019. The criteria for a Subclass 888 visa are set out in Part 888 of Schedule 2 to the Migration Regulations 1994. An applicant seeking to satisfy the primary criteria for the visa must satisfy the Common Criteria set out in Subdivision 888.21 and one of the stream specific criteria set out in subdivision 888.22 to 888.26. At least one member of the family unit must satisfy the primary criteria. In this case, Mr Variagin is seeking to satisfy the primary criteria for the grant of the visa in the Business Innovation stream.
Other members of the family unit who are applicants for the visa need only satisfy the secondary criteria set out in subdivision 888.3. The secondary applicants applied based on being members of the family unit of Mr Variagin.
A delegate…

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: [2023] AATA 3147
Decision Date: 20 September 2023

CaseChat Overview and Summary

In the matter of *Variagin (Migration)*, the Administrative Appeals Tribunal considered an application for a Subclass 888 (Business Innovation and Investment (Permanent)) visa. The applicant, Mr Variagin, sought review of a decision concerning his eligibility for this visa, which requires, among other things, an ownership interest in an actively operating main business in Australia and direct and continuous involvement in its day-to-day management. The dispute centred on whether Mr Variagin's property development activities constituted a "main business" and whether he had met the criteria for direct and continuous management.

The Tribunal was required to determine whether Mr Variagin had maintained a direct and continuous involvement in the day-to-day management of his property development business. Furthermore, the Tribunal had to ascertain if this property development undertaking qualified as a "main business" for the purposes of the visa application, and if Mr Variagin continued to hold the requisite ownership interest in that business at the time of the decision. The Tribunal also noted that as Mr Variagin had started the business rather than purchasing it, a specific sub-clause relating to purchased businesses did not apply.

The Tribunal reasoned that a business is an enterprise or undertaking, not a legal entity, and therefore it was crucial to identify the specific business to which the definition of "main business" applied. In this instance, the business was property development conducted through Fortune Build Pty. Ltd. The Tribunal affirmed that while policy can guide decision-makers, it must not be applied inflexibly and should only be considered to the extent it aligns with legislative requirements. It is an error of law for the Tribunal to state it must follow policy regarding the interpretation of the Act or Regulations. The primary criteria for the visa, including those specific to the Business Innovation stream, must be satisfied at the time of the decision.

The Tribunal concluded that the matter should be remitted for reconsideration. This course of action was taken because the decision had been made without a hearing, and the Tribunal needed to fully assess whether Mr Variagin met the criteria concerning his ownership interest, the active operation of the business, and his direct and continuous involvement in its management.

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

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Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. Where a general policy exists to guide the decision maker in exercising its powers, the Tribunal ‘will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application’.[1][1] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J). To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the policy is consistent with the requirements as set out in the legislation as it would be an error of law for the Tribunal to state it must (emphasis added) follow what policy says concerning the scope or meaning of a provision in the Act or Regulations. The primary criteria for the grant of the visa, including the common criteria and the relevant stream specific criteria, must be satisfied at the time a decision is made on the application. The primary criteria for the grant of a Subclass 888 visa in the Business Innovation stream are in Subdivisions 888.21 and 888.22. The issue in the present case is whether Mr Variagin maintained direct and continuous involvement in the day-to-day management of the business and otherwise satisfied the requirements for the property development business to be a main business, and if so, did he meet the remaining requirements of cl.888.222(1). As Variagin started the business rather than purchasing it the Tribunal finds cl.888.222(2) does not apply in this case. Clause 888.222(1) requires the applicant had an ownership interest in at least one actively operating main businesses in Australia during the two years immediately before the application was made and continues to have that interest. No more than two businesses can be nominated for this purpose.[2][2] r.1.11(2) Case law has established a business is not a legal entity but rather an enterprise or undertaking.[3] It is therefore important for the Tribunal to identify the business to which the definition of main business must be applied. It is also important to note that one business can be owned by multiple entities and conversely, multiple businesses can be owned by one entity.[3] Ibrahim v MIAC [2009] FCA 1328 at [30]. For the avoidance of doubt, an Australian Business Number attaches to an entity, not to a business, whereas the regulations for a Subclass 888 visa refer to a business not to an entity. The business relied on by Mr Variagin to satisfy these requirements is property development, which is conducted by Fortune Build Pty. Ltd. ACN 613 874 981. Accordingly, the Tribunal must consider the nature of his interest in this business, whether the business was actively operating and whether it met the main business definition during the two years immediately before the application was made.[4] The Tribunal must also consider whether Mr Variagin continues to have the ownership interest in the actively operating main business.[5]