Arunasalam (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse to grant Business Skills (Residence) (Class DF) visas, specifically Subclass 892 (State/Territory Sponsored Business Owner). The applicants had applied for the visas on 15 April 2016, and the delegate's refusal was based on the applicant failing to meet criterion cl.892.211 of the Migration Regulations 1994. This criterion requires an applicant to have had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application was made, a period relevantly identified as 14 April 2014 to 15 April 2016.

The primary legal issue before the court was whether the applicant, Mrs Arunasalam, had satisfied the ownership interest requirement under cl.892.211. This involved determining whether her shareholding in the company Saliba constituted an ownership interest for the relevant period, and whether the business itself was actively operating. The court also considered the applicant's explanation for a temporary transfer of shares to her husband.

The court reasoned that an ownership interest includes an interest as a shareholder. Evidence showed that Mrs Arunasalam held 10 ordinary shares in Saliba from its incorporation until 16 March 2017, which encompassed the entire relevant period of 14 April 2014 to 15 April 2016. Although shares were temporarily transferred to her husband and then back, the court found that she held the requisite ownership interest during the critical two-year period. The court also considered evidence, including bank statements and invoices, which indicated the business was actively operating during the relevant period.

Consequently, the Tribunal remitted the applications for reconsideration by the Minister, with a direction that the first applicant met criterion cl.892.211. The decision in relation to the other visa applicants was also remitted to allow the Minister to consider the remaining criteria for the grant of the visa.