• cl 892.213(2) of Schedule 2 to the Regulations.

MIGRATION - Business Skills (Residence) (Class DF) visa - Subclass 892 (State/Territory Business Owner) visa - Federal Circuit and Family Court remittal - main business - turnover of the main business at least $200,000 - excluding Goods and Services Tax - adequately determined - ownership interest in the main business - decision under review remitted

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024

Administrative Review Tribunal Act 2024, ss 9, 16, 106

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 892.212, 892.213; rr 1.11, 2.60, 2.73

Pidorenko v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 525

1. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 November 2018 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
3. The applicants applied for the visas on 24 May 2017. 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). The applicants in this case 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.
4. The delegate in this case refused to grant the visas on the basis that the first named visa applicant (the applicant) did not satisfy the requirements of cl 892.213(2) of Schedule 2 to the Regulations, which required that the turnover of his main business was at least $200,000 in the 12 months before the visa application was made. The delegate noted that according to Departmental policy (as set out in its Procedures Advice Manual, or PAM3), turnover could be assessed within 3 months before the visa application was made, and that turnover meant total sales, excluding the Goods and Services Tax (GST). Having reviewed the business' Business Activity Statements (BAS) for the period May 2016 to April 2017, the delegate found that the total sales were $206,982, but once GST was excluded, the figure was $188,165 and thus cl.892.213(2) was not met (and cl.892.213 was not met as a whole). The delegate therefore refused to grant the applicant a subclass 892 visa. The delegate also refused to grant visas to the second, third, fourth and fifth named applicants (the applicant's wife and children) as they did not satisfy the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 892 visa, and there was no evidence that they met the primary visa criteria in their own right.
5. The Tribunal received a review application from the applicants on 1 December 2018. It was accompanied by a copy of the Department's decision, and an authority by which the applicants appointed an immigration lawyer, Mr Hamish Glenister, as their representative and authorised recipient for correspondence.
6. The applicants attended a hearing with the Administrative Appeals Tribunal (differently constituted) on 13 May 2021.
7. On 28 May 2021, the Tribunal affirmed the Department's refusal decision. In reaching that decision, the Tribunal noted that the relevant state (Western Australia) had not supported a waiver of the requirements of cl.892.213(2) and therefore the applicant's main business had to meet the $200,000 turnover requirement. The Tribunal considered that it was appropriate to apply the Departmental policy allowing turnover to be assessed in the 3 month period immediately before the date of the visa application. The Tribunal noted that the applicants' representative had argued that GST ought not to be excluded from the turnover of the applicant's main business as different definitions of 'turnover' applied in different contexts, but found that consistency favoured the tax accounting definition of turnover, which did not include GST, as per the Australian Taxation Office (ATO). The Tribunal found that although GST may be received by a business, it was supposed to be passed on to the ATO (unlike the rest of the proceeds of sale). Nor was it a business expense as it was recorded as a separate as a liability owed to the government, not as an expense of the business, in the annual financial statements. The Tribunal concluded that including GST in turnover for the purposes of cl.892.212(3) was also inconsistent with the accounting principles used to assess other subclass 892 criteria (for instance, in relation to net assets).
8. The applicants sought judicial review of the Tribunal's decision on 28 June 2021.
9. On 11 June 2024, the Federal Circuit and Family Court of Australia (FedCFam) issued a writ of certiorari quashing the Tribunal's decision, and a writ of mandamus requiring the Tribunal to re-determine its review of the delegate's decision according to law. Lucev J found that the Tribunal had made a jurisdictional error in its interpretation of 'turnover' in cl.892.213(2) by excluding GST from its calculations. His Honour found that in the absence of a specific definition of turnover in the Act or Regulations, statutory interpretation required that the ordinary meaning of the word be applied. His Honour noted that various dictionary definitions of 'turnover' did not exclude GST and nor did relevant case law. Therefore, it was clear that: (a) the ordinary meaning of 'turnover' was the total amount of money coming into a business in a particular period; and (b) that in determining whether a particular total amount of money was turnover for the purpose of the Migration Regulations, the Tribunal might have regard to the PAM3 guidelines. His Honour further found that rr 2.60W and 2.73 of the Regulations suggested that where in those Regulations the legislature intended to define turnover differently to its ordinary meaning, it appeared expressly to do so. As it had not done so in relation to cl.892.213(2), the ordinary meaning applied, which did not exclude GST.
10. The review application was constituted to a new Tribunal Member on 12 February 2025.
11. Item 24(2) in Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transition Act) requires any proceeding originally lodged at the AAT to be 'continued and finalised by the ART in a manner that the ART considers is efficient and fair.'
12. Further, subsections (6) to (8) in Item 24 in Part 5 of Schedule 16 of the Transition Act clarify that acts done in relation to an application prior to the transition from the AAT to the ART continue to have effect in the ART; that anything done in accordance with the old law applicable prior to the transition is taken to have been in accordance with the new law; and that anything done by the AAT before the transition is taken to have been done by the ART. However, Item 24(4) directs the ART to, as far as possible, continue the proceeding under the new law that applies.
13. The new law is set out principally in the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and in substantive changes to the Migration Act.
14. Section 9(b) of the ART Act provides requires the Tribunal to determine review applications quickly, with as little formality and expense, as a proper consideration of the matters before the Tribunal permits.
15. Section 106 of the ART Act outlines the circumstances in which the Tribunal may reach a decision without conducting a hearing. Relevantly, s 106(3) confers power on the Tribunal to make its decision without a hearing where the only parties are the applicant and a non participating party (that is, the Minister for Home Affairs in this jurisdiction). Section 106(3) states that it applies if:

(a) the only parties to the proceeding are the applicant and a non-participating

party to the proceeding or the hearing of the proceeding; and

(i) the decision is wholly in favour of the applicant; or

(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and

(c) it appears to the Tribunal that the issues for determination in the proceeding

can be adequately determined in the absence of the parties to the

1. The Tribunal is satisfied that ss 106(3)(a) and 106(3)(b)(i) have been met. The Tribunal has considered whether the issue for determination (that is, whether the applicant can demonstrate that cl.892.213(2) of Schedule 2 to the Migration Regulations), can be adequately determined in the absence of the parties to the proceeding, as required by s106(3)(c).
2. 'Adequately determined' is not defined in the ART Act. The Tribunal considers that 'adequately determined' is not synonymous with a need to find in the applicant's favour given that s 106(3)(b) of the ART Act distinguishes situations where a wholly favourable decision can be made from situations where an applicant simply has requested a decision without a hearing. In the absence of a statutory definition, the Tribunal considers that the ordinary meaning of the words 'adequately' and 'determined' should be taken into account.
3. The Macquarie Dictionary's principal definition of 'determine' is 'to settle or decide (a dispute, question, etc.) by an authoritative decision.' Qualifying 'determined' with the adverb 'adequately' raises questions as to the quality expected in the determination process. Again, relying on the Macquarie Dictionary as the principal source of ordinary meaning for terms in Australia, the Tribunal has considered its definition of the term 'adequate'. The principal definition of 'adequate' is 'equal to the requirement or occasion; fully sufficient, suitable, or fit.'
4. In order to adequately determine the issues in the proceeding (that is, to decide in a manner that is fit, suitable, fully sufficient, and equal to the occasion), the Tribunal must be satisfied that its review process has been in keeping with its core objectives of providing an independent mechanism of review that is fair and just, and that acts quickly with as little formality and expense as a proper consideration of the matters before the Tribunal permits.
5. In this case, and for the reasons set out below, the documentary evidence provided by the applicant to the Department and Tribunal satisfies the Tribunal that the applicant meets cl.892.213(2).
6. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

1. Clause 892.213 (as it was at the time of the applicants' visa application) provides as follows:

(1) The applicant meets the requirements of subclause (2) or (3).

(2) An applicant meets the requirements of this subclause if, in the 12 months immediately before the application is made, the applicant's main business in Australia, or main businesses in Australia together, had an annual turnover of at least AUD200 000.

(3) An applicant meets the requirements of this subclause if:

(a) the applicant meets at least 2 of the requirements set out in paragraphs 892.212(a), (b) and (c); and

(b) the applicant resides in, and operates the applicant's main business or businesses in Australia in, an area specified in an instrument in writing made by the Minister for this paragraph; and

(c) the appropriate regional authority has determined that there are exceptional circumstances for this subclause

1. In the visa application, the applicant had nominated 1 business, A Pidorenko & Z Pidorenko, which is a family partnership, as his main business. The applicant and his wife together own the business in its entirety. In the Departmental Form 1217 Business Skills Profile, the business was described as 'organising and coordination of sales and distribution of goods, mainly furniture of various types.' The Tribunal is satisfied that this business is the applicant's main business for the purposes of cl.892.213 and r.1.11.
2. The business is situated Malaga, a Perth suburb in Western Australia (WA). The appropriate regional authority is therefore the WA government. As set out in Form 949, the sponsoring state business development agency for WA, the Small Business Development Corporation (SBDC), did not determine that there were exceptional circumstances and therefore did not waive the turnover requirement. Accordingly, the Tribunal finds that the applicant is required to meet the turnover requirement set out in cl.892.213.
3. Therefore, the applicant's main business was required to have an annual turnover for the year before the visa application was lodged of at least AUD $200,000.
4. Departmental policy sets out that the term 'immediately before the application is made' is taken to be any date within the 3 month period before the Department received the visa application. This is in relation to the provision of financial statements. The Tribunal considers this to be reasonable and that it is appropriate to apply that policy in this case.
5. The applicant provided the Department with financial statements for the year ended 30 April 2017. As the visa application was made on 24 May 2017, the 3 month period preceding that started on 24 February 2017. The Tribunal is satisfied that 30 April 2017 falls within the relevant 3 month period.
6. As noted by the original Tribunal, the financial statements for the main business listed sales for the financial year to 30 April 2017 as AUD $188,165. The applicant also provided copies of monthly BAS returns. These show that in the 12 months to 30 April 2017, sales were AUD $206,892 inclusive of GST, and AUD $188,165 excluding GST.
7. As noted above, the Department, and the first Tribunal, found that the turnover was less than the required AUD $200,000 on the basis that GST could not be included as turnover. It was submitted on behalf of the applicant that GST should be included in turnover, and the judgment of Lucev J of the FedCFam found that there was no legal justification to exclude GST from the ordinary meaning of 'turnover.'
8. As the judgment of Lucev J (Pidorenko v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 525) is binding on the Tribunal, the Tribunal accepts that the turnover of the applicant's main business, based on the BAS returns and financial statements for 12 months to 30 April 2017, is $206,982. The Tribunal therefore finds that the applicant meets cl.892.213(2).
9. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.
10. As the second, third, fourth and fifth named applicants applied for the visas on the basis of being members of the family unit of the applicant, their applications will also be remitted to the Department for reconsideration upon its reconsideration of the applicant's application.

1. The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 892 visa:
   • cl 892.213(2) of Schedule 2 to the Regulations.

Representative for the Applicant: Mr Hamish William Glenister