Bansal (Migration)

The Administrative Appeals Tribunal considered an application by Mr Bansal for review of a decision concerning his Subclass 188 (Business Innovation and Investment (Provisional)) visa. The core of the dispute involved whether the businesses nominated by Mr Bansal met the legislative requirements for a "qualifying business" under clause 188.232 of the Migration Regulations 1994.

The Tribunal was required to determine whether the two businesses Mr Bansal relied upon, a 7-Eleven convenience store and a Freechoice tobacconist, were one and the same, and whether he had the requisite ownership interest in a "main business" that was actively operating in Australia for at least two years prior to his application, and continued to hold that interest at the time of the Tribunal's decision. The Tribunal also considered its entitlement to treat policy as a relevant factor in its determination, provided it was applied flexibly and consistently with the legislation.

The Tribunal reasoned that a business is an enterprise or undertaking, distinct from the legal entity that operates it, and that an Australian Business Number is attached to an entity, not the business itself. It noted that one business can be owned by multiple entities, and vice versa. The Tribunal observed similarities and differences between the nominated businesses, with the 7-Eleven store selling groceries and associated products including tobacco, and the Freechoice tobacconist specialising in tobacco and related products, also offering other items. The Tribunal acknowledged case law establishing that policy can be a relevant consideration if the Tribunal expressly indicates its consideration of the policy's propriety and the reasons for its conclusion.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. This was because the Tribunal needed to definitively identify the business to which the definition of "main business" applied, given the distinct entities operating the 7-Eleven and Freechoice franchises and the potential for overlap in their product offerings.