Australia Abalone World Pty Ltd v Minister for Immigration

Australia Abalone World Pty Ltd (the applicant) sought judicial review of a decision by the Minister for Immigration (the respondent) to refuse to grant the applicant a visa. The applicant had applied for a Business Innovation and Investment (Permanent) visa (subclass 888) under the *Migration Regulations 1994* (Cth). The Minister's delegate had refused the application on the grounds that the applicant had not met the requirements of the visa, specifically concerning the ownership and operation of a business. The matter came before Judge Driver of the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant had satisfied the requirements of Regulation 5.07D(1)(c)(ii) of the *Migration Regulations 1994*, which stipulated that an applicant must have had an ownership interest in a "complying business" for at least two years immediately before the application was made. The applicant contended that its ownership interest in a business, which involved the export of abalone, constituted a complying business. The respondent argued that the business was not a complying business because it was not actively trading in goods or services.

Judge Driver considered the definition of "complying business" under the Regulations, which required the business to be lawfully operating and actively trading in goods or services. The Court found that while the applicant was involved in the export of abalone, the evidence did not demonstrate that the business was actively trading in goods or services in the manner contemplated by the Regulations. The Court noted that the applicant's activities appeared to be primarily administrative and related to the management of export licenses rather than direct trading. Consequently, the Court concluded that the applicant had failed to establish that it had a complying business for the requisite period.

The application for judicial review was dismissed.