1503293 (Migration)

This matter concerned an application for a Business Skills — Established Business (Residence) (Class BH) visa, specifically a Subclass 845 visa. The applicant sought to demonstrate that they continued to satisfy the criteria outlined in clause 845.221 of Schedule 2 to the Migration Regulations 1994, which required ongoing satisfaction of criteria 845.213 to 845.218. The tribunal, presided over by Antonio Dronjic, was tasked with determining whether the applicant met these requirements.

The central legal issue was the interpretation of the phrase "continues to satisfy" within the context of clause 845.221, and how this applied to the specific criteria, particularly clause 845.213. Clause 845.213 mandated that the applicant must have had an ownership interest in a main business in Australia for the 18 months preceding the application and must continue to have such an interest. The tribunal also had to consider the definition of "main business" as set out in regulation 1.11, which included requirements for direct and continuous involvement in the management of the business.

The tribunal reasoned that the phrase "continues to satisfy" generally implies that the relevant criteria must be met without interruption from the time of application until the time of decision. In assessing clause 845.213, the tribunal found, based on ASIC records and the definition of ownership interest in section 134(10)(a) of the Migration Act 1958, that the applicant did possess an ownership interest in the nominated company. Furthermore, the tribunal was satisfied that the business met the definition of a "main business" under regulation 1.11(1)(a). The tribunal also found the applicant to be credible and genuine in their oral evidence, which provided detailed insights into their business ventures.

Consequently, the tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the specified criteria for the Subclass 845 visa.