1406689 (Migration)

The applicant sought review of a decision by the Tribunal affirming the refusal to grant a Business Skills (Residence) (Class DF) visa. The dispute centred on whether the applicant continued to satisfy the relevant visa criteria at the time of the decision, specifically concerning ownership interest in an actively operating main business in Australia. The applicant had initially nominated Homecheer Wood Industry Pty Ltd as the main business, but this business ceased operating in late 2015. The applicant then sought to rely on a new company, West Lakewood Pty Ltd, which was established after the visa application was made and operated as an import and export company, differing in ownership and business activity from the original nomination.

The primary legal issue before the court was to determine whether the applicant met the requirements of clauses 892.211 and 892.221 of Schedule 2 to the Regulations at the time of the decision. Clause 892.211 requires the applicant to have had, and continue to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the application was made. Clause 892.221 mandates that the applicant continues to satisfy the criteria in clause 892.211 at the time of the decision. The court was required to consider whether the cessation of operations of the nominated business and the nature of the new company satisfied these ongoing requirements.

The court reasoned that for the criteria to be met, the business must be actively operating at the time of the decision, and the ownership interest must be in the same business that satisfied the criterion at the time of application. The court noted that Homecheer Wood Industry Pty Ltd had ceased operating, and West Lakewood Pty Ltd was a different entity established after the application, with different ownership and business activities. Applying the principles from *Yang & Ors v Minister for Immigration & Anor* [2014] FCCA, which held that the ownership interest in the actively operating main business must be the same interest used to satisfy the time of decision criterion, the court found that the applicant had not demonstrated that the criteria were met.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Business Skills (Residence) (Class DF) visa, as there was no evidence to suggest that the criteria for any other visa subclasses in Class DF were met.