1415520 (Migration)

This matter concerned an appeal before the Tribunal regarding a Subclass 892 visa application made by Mrs Syeda Samia Mubashir, the primary applicant, and her secondary applicant spouse. The core dispute revolved around whether Mrs Mubashir met the criteria stipulated in clause 892.212 of the relevant regulations, which relate to business skills migration. The applicant's case was premised on her role as managing director and owner of a grocery store, "Punjab Together," which she acquired part ownership of in October 2011.

The Tribunal was required to determine if the primary applicant satisfied at least two of the three requirements outlined in clause 892.212, given that no exceptional circumstances had been determined by the appropriate regional authority. Specifically, the Tribunal had to assess whether the business provided employment equivalent to one full-time Australian citizen, permanent resident, or New Zealand passport holder for the 12 months preceding the application, and whether the applicant and/or her spouse met the minimum net asset thresholds for both their business and personal assets in Australia.

The Tribunal found that the primary applicant failed to meet the employment criterion under clause 892.212(a). Despite the nomination of an employee, Mr Asif Khan, the evidence provided, including PAYG summaries, payroll activity summaries, payslips, and bank receipts, was insufficient to establish that the business provided employment equivalent to a full-time employee for the requisite period. Concerns were raised regarding payslips for periods when the employee was offshore and discrepancies between declared wages in the Business Activity Statement and expected wages for a full-time employee. As the primary applicant did not meet this criterion, and no submissions were made to suggest she met the other criteria, the Tribunal concluded that the primary applicant did not satisfy clause 892.212(a).

Consequently, the Tribunal remitted the visa application for reconsideration. The direction was that the primary visa applicant meets the criteria for a Subclass 892 visa, implying that the Tribunal found the primary applicant met the necessary criteria for the visa, and therefore the secondary applicants' applications should also be reconsidered.