Ghahfarokhi v Minister for Immigration and Citizenship [2026] FedCFamC2G 252

1. On 25 June 2015, the first applicant was granted a Business Skills (Provisional) (class EB) Business Innovation and Investment (Provisional) (subclass 188) visa (Provisional Business visa).
2. On 5 April 2019, the applicants lodged an application for a Business Innovation and Investment (Provisional) (Extension) (subclass 188) visa (Business visa).
3. On 17 February 2020, a delegate of the First Respondent refused to grant the applicant a Business visa, and on 18 February 2020, the applicant lodged an application for review of the delegate's decision with the Administrative Appeals Tribunal.
4. On 21 September 2021, the Tribunal affirmed the decision under review not to grant the applicant a business visa.
5. The applicant seeks judicial review of the Tribunal decision in this Court under s 476 of the Migration Act 1958 (Cth) (Act).

1. After setting out the background to the application, the Tribunal identified the issue for review being whether the applicant had an ownership interest in one or more main businesses, in accordance with cl 188.232(1) and cl 188.232(2) of the Migration Regulations 1994 (Cth) (Regulations).
2. At paragraph [7], the Tribunal noted the applicant had two main nominated businesses by the primary applicant in the visa application as below:
   • Bamshad Pty Ltd trading as Zara Kebab Pizza (Bamshad)
   • Western Motors Car Wholesalers Pty Ltd. (Western Motors)
3. The Tribunal found there was no record of the applicant having ownership interest in Western Motors.
4. The Tribunal then considered if the applicant had an ownership in the Bamshad business at the relevant time. It considered the definition of 'ownership interest' under r 1.03 of the Regulations, and the meaning given to it pursuant to s 134(10) of the Act.
5. At paragraph [11] - [15] the Tribunal recorded submissions made to the Tribunal which was to the effect that there had been error made in the recording of the shareholding in Bamshad when the company was registered. It should have recorded the applicant held 51 out of 100 shares in Bamshad and that the applicant's wife held 49 out of 100 shares in the company, as was stated in company Minutes dated 3 April 2016. It was submitted this error was identified and corrected by the filing of an ASIC Form 484 (Form 484) which was used to correct the company's ownership details. A copy of Form 484 was submitted after the hearing.
6. At paragraphs [16]-[17] the Tribunal noted:
   1. The Tribunal obtained an ASIC report dated 20 July 2021 titled Historical Company Extract. As the name indicates, this includes details of shareholdings and directorships and other company-related information prior to changes being made as well as current details.
   2. According to this report, the applicant currently owns 51 shares from the 100 shares issued and his wife owns 49 shares. These shares are beneficially held by the applicant and his wife. Changes to the shareholdings were made via Form 484 on 25 August 2020 and 10 November 2020. There is no record of other changes to the shareholdings since the company was registered on 31 March 2016.
7. The Tribunal found the change made via Form 484 on 25 August 2020 recorded the applicant as holding 51 shares, which were fully paid but not beneficially held. It found the change made via Form 484 on 10 November 2020 was to record the shares were being held beneficially by the applicant.
8. The Tribunal noted that according to a copy of Form 484, the change to the shareholding recorded in the applicant's name was to apply from 3 April 2016. However, according to the ASIC historical company extract obtained by the Tribunal dated 20 July 2021, the effective date of the change was the same date the Form 484 was received and processed.
9. The Tribunal noted that the Corporations Act 2001 (Cth) (Corporations Act) was the relevant law regarding shareholding in private companies.
10. The Tribunal found there was no provision in the Corporations Act that permitted backdating of share ownership to a date four years earlier than the date of the notification of the change. On this basis, while 3 April 2016 was recorded on the Form 484, the Tribunal did not accept the Form 484 change on the 10 November 2020 was backdated to 3 April 2016 in ASIC's register.
11. The Tribunal was satisfied that on the date the visa application was lodged, and during the previous two years, the applicant did not own any shares in Bamshad and therefore did not have an ownership interest in the business operated through Bamshad.
12. The Tribunal found that cl 188.232 of the Regulations was not satisfied and affirmed the decision not to grant the applicant's business visa.

1. On 25 October 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal's decision dated 21 September 2021. The application contains five grounds of review. None of the pleaded grounds contain any arguable jurisdictional error. They are written in the form of a submission which seeks to challenge the merits of the Tribunal decision. Merits review is not permissible in this Court in applications for judicial review under s 476 of the Act: see Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.
2. As I discuss below in detail below, I consider the real issue in this review application was whether, by failing to consider reg 1.11A in this case, the Tribunal committed a "material" jurisdictional error.

1. On 2 October 2025, the proceedings were docketed to me and set down before me for final hearing on 25 November 2025.
2. At the hearing of this matter on 25 November 2025, the first applicant appeared by Webex. The first applicant was not represented. He was assisted by an Iranian interpreter. Ms S Edmondstone of Minter Ellison appeared for the first respondent.
3. At the commencement of the hearing I gave the applicant the opportunity to make submissions in support of his application in this Court. He made brief submissions going to the merits of the Tribunal's decision and disagreed with the Tribunal's conclusions.
4. Ms Edmondstone made brief oral submissions on the Minister's written submissions, which I detail below in my consideration of the matter.

1. The real issue for determination before me is whether by failing to consider reg 1.11A, the Tribunal committed a "material" jurisdictional error: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [2] and [32] (LPDT) and Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.
2. The Minister concedes that the Tribunal committed a jurisdictional error by not expressly considering whether the applicant had beneficial ownership of Bamshad, by reference to reg 1.11A. However, the Minister does not concede it was a "material" jurisdictional error in the sense understood in cases such as LPDT and SZMTA.
3. I considered the most appropriate way to deal with this application is to consider firstly whether the jurisdictional error, which the Minister concedes was committed, was a material jurisdictional error and secondly, if I find it was a material error, whether I should exercise my discretion to withhold constitutional writ relief on the basis that it would be futile to do so in the circumstances.

ISSUE 1: DID THE TRIBUNAL COMMIT A MATERIAL JURISDICTIONAL ERROR BY FAILING TO CONSIDER REG 1.11A?

1. As outlined above, the applicant did not directly address the issue of the Tribunal's failure to address reg 1.11A in his submissions.

1. The first respondent submissions on this issue are as follows:
   1. However, it is conceded that the Tribunal did not expressly go on to consider whether the applicant therefore had beneficial ownership of Bamshad, by reference to reg 1.11A. The applicants were represented at the Tribunal, and such a claim by reference to reg 1.11A was never squarely made. In light of the submissions and the Tribunal's acceptance of the registration mistake at [13], the Minister accepts that this issue clearly arose on the materials and the Tribunal erred in failing to consider it.
   2. Nonetheless, the Minister submits that such an error was not material because the requirements of reg 1.11A were not and could not have been met.
   3. As found by Judge Ladhams in Oosthuizen v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 152 (Oosthuizen) at [43]:

Regulation 1.11A is a provision that sets out the evidentiary requirements to establish a beneficial interest in an asset, eligible investment or ownership interest. The regulation is not directed to the circumstances in which a beneficial interest may exist, but rather to the evidence required to establish a beneficial interest for the purposes of meeting the requirements for the grant of the visa.

36. Her Honour went on to find at [49] and [51] in relation to reg 1.11A(3) that:

Once it is understood that reg 1.11A(2) is referring to a document (in this case, a trust instrument), being stamped or registered, it follows that 'the date of registration or stamping by the appropriate authority' for the purposes of reg 1.11A(3) must be the date of registration or stamping of the document, not the date from which the interest is recognised to exist.

I acknowledge that reg 1.11A, as construed by the Court, may operate in a way that excludes from consideration, for the purposes of determining whether an applicant meets the requirements of cl 132.225 in Sch 2 to the Regulations, a beneficial interest that does in fact exist and which is enforceable in a foreign jurisdiction. However, such an outcome is not inconsistent with the text of reg 1.11A, or its purpose, as explained in Yu.

1. Insofar as the minutes of the 3 April 2016 directors' meeting (at CB 419) were to be considered 'a document' for the purposes of reg 1.11A(2), the document was not 'stamped or registered by an appropriate authority under the law of the jurisdiction where the ownership interest is located'. Nor was there any other document capable of meeting the strict evidentiary requirements set out in reg 1.11A. The two versions of ASIC Form 484 were lodged on 25 August 2020 (CB 528-530) and 10 November 2020 respectively. While those forms recorded that the changes to the applicant's shareholding were to apply from 3 April 2016, it cannot be said that they were stamped or registered on that date. In those circumstances, there was not a realistic possibility of a different outcome had the Tribunal's error in failing to consider the issue of beneficial ownership not been committed: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ.

38. The applicants' grounds should be dismissed.

1. At the hearing before me, I asked Ms Edmondstone if the first respondent wanted to make any further submissions on the issue of materiality, beyond what was contained in paragraph [37] of the first respondent's written submissions. She submitted the first respondent did not want to go beyond what was in paragraph [37] on that issue.

(1) Subject to subregulation (4), for Parts 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 is located, he or she can claim the benefits of ownership of the asset, eligible investment or ownership interest.

1. The first respondent conceded, correctly in my view, that the Tribunal committed jurisdictional error by not considering whether the applicant had a beneficial ownership interest in Bamshad, by reference to reg 1.11A in its decision.
2. The Tribunal focussed its decision on the definition of ownership in reg 1.3, which provided that a direct or legal "ownership interest" in relation to a business has the same meaning as that in s 134(10) of the Act. The Tribunal found the applicant did not have a direct or legal ownership interest in Bamshad but did not go onto consider if instead the applicant had a beneficial ownership interest in Bamshad. In view of the Tribunal's acceptance of the shareholding registration mistake at paragraph [13] of its decision, and the finding the shares in Bamshad were held beneficially by the applicant and his wife without any further explanation, I consider the Tribunal erred by failing to consider if the applicant's ownership interest in Bamshad included his beneficial ownership in the company in accordance with sub-regulation 1.11A(2). That error, I find, amounted to jurisdictional error.
3. The issue then becomes whether that jurisdictional error was material, as that expression is understood in cases such as LPDT and SZMTA.
4. The first respondent submits that it was not a material jurisdictional error because the documents the applicant provided to the Tribunal (the 3 April 2016 Minutes and Form 484 lodged by the company on 25 August 2020 and 10 November 2020 respectively) did not support a finding that the applicant had beneficial ownership interest in Bamshad, because they did not conform to the requirements of reg 1.11A. In particular, the first respondent submitted under reg 1.11A the documents relied upon to establish a beneficial ownership interest could not be relied upon as evidence of beneficial ownership, "for any period earlier than the date of registration or stamping by the appropriate authority." It was submitted the documents relied upon were never stamped or registered so those documents were not evidence of a beneficial ownership interest in Bamshad by the applicant under reg 1.11A.
5. I do not accept this submission. As the first respondent concedes, the representative for the applicant in the Tribunal did not make any claim by reference to reg 1.11A, as that provision was never squarely raised either by the representative or by the Tribunal Member. Had it been raised there may have been other evidence that the applicant could have relied upon to establish his beneficial interest in Bamshad rather than whether he only had a legal ownership interest in the company only.
6. In my view, there was a realistic possibility of a different outcome had the Tribunal's error in failing to consider the issue of beneficial ownership not been committed, as the applicant could have relied upon other evidence if available to prove he had a beneficial interest in Bamshad, held by his wife, for example, on trust: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ.
7. In my view, the Tribunal's failure to consider whether the applicant had beneficial ownership in Bamshad, by reference to reg 1.11A, was a material jurisdictional error.
8. In view of that finding, I must now consider the first respondent's submission, whether I should exercise my discretion to withhold granting constitutional writ relief to the applicant on the basis that it would be futile to grant that relief.

1. I explained the issue of futility to the applicant and asked him if he wanted to make any submissions on the issue. He declined to do so. Instead, he made general statements about having made various applications for visas in the past and wanting to return to Australia to conduct a business in this country.

1. The first respondent submitted, on the issue of futility, if I find there was a material jurisdictional error, then the Court should exercise its discretion to withhold relief, on the basis that the granting of the relief would lack utility for reasons analogous to those in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 340 (Singh) at [116]-[119].
2. This is because the Business visa that the applicant had applied for (a visa which was an extension of the Provisional Business visa granted on 25 June 2015) would have ceased on 25 June 2021 due to the operation of cl 188.512 of the Regulations. It was submitted that under cl 188.512 in Schedule 2 to the Regulations, the Business visa the applicant applied for in 2019 only permitted the visa holder to travel to enter and remain in Australia for six years after the original or earlier visa that was granted on 25 June 2015, namely, Provisional Business visa. In other words, the applicant could have only remained in Australia until 25 June 2021 in any event.
3. The first respondent submitted that any remittal to the Tribunal would lack utility as the applicants would have no prospect of being granted a current Business visa by reason of the operation of cl 188.512, and the expiry of the six year time in cl 188.512 referred to above: see e.g. Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 939 (Sharma) at [43]-[44] and CGU23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 892 at [92]. It was submitted therefore relief should refused because "no useful result could ensue": R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] FCA 33; (1949) 78 CLR 389 at 400, or it would be an "exercise in futility": Jiang v Minister for Immigration & Anor [2007] FMCA 215 at [31].

1. This Court has a discretion, in claims for prerogative writ relief, to refuse to grant that relief, even if the Tribunal decision is affected by jurisdictional error. In Singh Judge Lucev summarised the law on this issue at [118]:

[118] Prerogative relief may be refused where:

(a) "no useful result could ensue": R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400 per Latham CJ, Rich, Dixon, McTiernan and Webb JJ; or

(b) it would "lack utility": SZEEU & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 at [232] per Allsop J; or

(c) it would "be an exercise in futility": Jiang v Minister for Immigration & Anor [2007] FMCA 215 at [31] per Lucev FM, from which an appeal by the applicant was dismissed in Jiang v Minister for Immigration & Citizenship [2007] FCA 907 at [30] per Bennett J.

1. In the present case, the applicants applied for the visa on 5 April 2019 in the Business Innovation Extension stream (namely, the Business visa) having previously been granted a visa in the Business Innovation stream on 25 June 2015 (see pages 6-22 in the affidavit of Matthew Kwong-Yu Wong deposed on 20 November 2025 (exhibit R1)) (namely, the Provisional Business visa).
2. Clause 188.2 of the Regulations provides the criteria for the Provisional Business visa, and the criteria for an extension of that visa, namely, the Business visa. That regulation provides:

188.2--Primary criteria

Note: The primary criteria for the grant of a Subclass 188 visa include criteria set out in streams.

If an applicant applies for a Subclass 188 visa in the Business Innovation stream, the criteria in Subdivisions 188.21 and 188.22 are the primary criteria for the grant of the visa.

If an applicant applies for a Subclass 188 visa in the Business Innovation Extension stream, the criteria in Subdivisions 188.21 and 188.23 are the primary criteria.

If an applicant applies for a Subclass 188 visa in the Investor stream, the criteria in Subdivisions 188.21 and 188.24 are the primary criteria.

If an applicant applies for a Subclass 188 visa in the Significant Investor stream, the criteria in Subdivisions 188.21 and 188.25 are the primary criteria.

If an applicant applies for a Subclass 188 visa in the Significant Investor Extension stream, the criteria in Subdivisions 188.21 and 188.26 are the primary criteria.

If an applicant applies for a Subclass 188 visa in the Entrepreneur stream, the criteria in Subdivisions 188.21 and 188.28 are the primary criteria.

The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

All criteria must be satisfied at the time a decision is made on the application.

1. Clause 188.512 of the Regulations provides how long the holder of the Business visa can remain in Australia. It provides:

188.512

If the applicant satisfied the primary criteria for the grant of a Subclass 188 visa in the Business Innovation Extension stream, temporary visa permitting the holder to travel to, enter and remain in Australia:

(i) the last Subclass 188 visa held by the applicant was a Subclass 188 visa in the Business Innovation stream; and

(ii) the time of the invitation to apply for that visa was before 1 July 2021;

for 6 years after the date of the grant of that visa; or

(i) the last Subclass 188 visa held by the applicant was a Subclass 188 visa in the Business Innovation stream; and

(ii) the time of the invitation to apply for that visa was on or after 1 July 2021;

for 7 years after the date of the grant of that visa; or

(b) if the last Subclass 188 visa held by the applicant was a Subclass 188 visa in the Business Innovation Extension stream--for 8 years after the date of the grant of the Subclass 188 visa in the Business Innovation stream.

1. Clause 188.512 provides that a visa granted in the Business Innovation Extension stream (the Business visa) would permit a visa holder to travel to enter and remain in Australia for a maximum of six years after the date of the grant of the original visa in the Business Innovation stream (namely, the Provisional Business visa).
2. In the present case, the date of the original grant of the visa in the Business Innovation stream (or the Provisional Business visa) was 25 June 2015. Therefore, I find under cl 188.512, the Business visa, if it had been granted, would have ceased on 25 June 2021.
3. I also find there is no power in the Act to extend the duration of the Business visa if the Tribunal's decision is remitted: see Sharma at [45] per Judge Lucev. In other words, even if the matter was remitted to the Tribunal, the Tribunal would have no alternative but to affirm the decision of the delegate because the applicant could not be granted a current visa in the Business Innovation Extension stream as the time for granting such a visa ran out on 25 June 2021.
4. In this matter, therefore, I consider it would be a completely futile exercise to grant the writ relief sought by the applicant. For the reasons outlined above, I refuse to grant relief sought in this case.

1. For the reasons given, I will dismiss the application with costs.
2. Given my conclusions, I do not consider it necessary to consider whether any other arguable substantive jurisdictional error in the decision sought to be reviewed arises from the material before me as I am required to do by cases such as MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [112] and [113].

1. The first respondent seeks costs fixed in the sum of $9,097.93. I consider the amount sought by the is reasonable for this type of matter. I will make an order for the amount sought by the first respondent against the applicant.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cleary.