1606368 (Migration)

This matter concerned an application for a Business Skills (Residence) (Class DF) visa, subclass 892 (State/Territory Sponsored Business Owner), by a family of four. The primary dispute revolved around whether the applicant met the requirements of clause 892.212 of the Migration Regulations 1994, which sets out criteria for net business and personal assets, and net assets in the nominated main business. The Administrative Appeals Tribunal was required to determine if the applicant had satisfied at least two of the three specified requirements under this clause.

The Tribunal considered whether the applicant met the criteria relating to providing employment to Australian citizens or permanent residents, the net value of business and personal assets in Australia, and the net value of assets owned in the main business. Specifically, the delegate had found that the applicant did not meet the employment requirement, nor the requirement for net assets in the main business, as approximately $50,000 held in a lawyer's trust account was not accepted as an asset of the main business, resulting in a net value below the $75,000 threshold. Consequently, the applicant was deemed not to have met two of the three requirements of clause 892.212.

Despite affirming the delegate's decision not to grant the visas, the Tribunal noted that the applicants were experienced business people with professionally employed daughters in regional Australia, who had been resident in Australia since 2012. The Tribunal also acknowledged the applicant's successful operation of a business and efforts to identify export opportunities. Considering these factors, and the argument that the applicant might be penalised for a commercial decision to cease a declining business and explore new ventures, the Tribunal concluded that the outcome could be considered unfair or unreasonable. Therefore, the Tribunal referred the case to the Department for consideration by the Minister under section 351 of the Migration Act 1958.