1419007 (Migration)

This matter concerned an application for a Business Skills (Residence) (Class DF) visa, specifically a Subclass 892 State/Territory Sponsored Business Owner (Residence) visa. The primary issue before the tribunal was whether the applicant satisfied the criteria set out in clause 892.212 of Schedule 2 to the Migration Regulations 1994. This clause requires applicants to meet two out of three specified criteria, unless exceptional circumstances have been determined by the relevant regional authority.

The tribunal was required to determine if the applicant met the requirements of clause 892.212(b) and (c), which relate to the net value and lawful acquisition of business and personal assets in Australia, and assets in Australian businesses, respectively. The tribunal also had to consider whether it had jurisdiction to review the applications of the second and third named applicants, given the provisions of section 338(7A) and section 347(3A) of the Migration Act 1958.

The tribunal found that there was no evidence of exceptional circumstances being determined by the State Government of Victoria. It also found that the applicant had not presented evidence relating to the employment of Australian citizens, permanent residents, or New Zealand passport holders, thus not satisfying clause 892.212(a). However, the tribunal was satisfied, based on documentary evidence including a sale of business contract and audited financial statements, that the applicant had acquired an Australian business for $270,000 and had advanced a director's loan to an Australian company exceeding $250,000. This evidence supported the conclusion that the applicant met the net value requirements of both clauses 892.212(b) and 892.212(c). Regarding jurisdiction, the tribunal determined it had no jurisdiction to review the applications of the second and third named applicants as they were not physically present in the migration zone at the relevant times.

Consequently, the tribunal remitted the application for reconsideration, directing that the first named applicant met the criteria under clauses 892.212(b) and (c) for the Subclass 892 visa. The tribunal also ordered that it did not have jurisdiction in respect of the second and third named applicants.