Cai (Migration)

This matter concerned an appeal by the applicant against the Tribunal's decision to affirm the refusal of a Business Skills (Residence) (Class DF) visa, specifically a Subclass 892 (State/Territory Business Owner) visa. The applicant's secondary applicants, who applied as members of the family unit, were also affected by the primary applicant's failure to meet the visa requirements.

The central legal issue before the Tribunal was whether the applicant continued to satisfy the requirement of having an ownership interest in an actively operating main business in Australia at the time of the decision, as stipulated by clause 892.221(a) of the Migration Regulations 1994. This requirement mandates that the applicant must have held such an interest for at least two years prior to the visa application and must continue to hold it at the time of the decision.

The Tribunal found that the applicant nominated Box Hill Barbecue Pty Ltd, trading as the Hill's BBQ Noodle Shop, as the business to satisfy this criterion. While the applicant had initially provided evidence of shareholding, current Australian Securities and Investments Commission (ASIC) records indicated that the applicant had ceased to be a shareholder of the company on 15 November 2016. This cessation predated the Tribunal's decision and meant the applicant no longer possessed the required ownership interest in the nominated business at the time of the decision. Consequently, the Tribunal affirmed the decision not to grant the visa to the applicant and the secondary applicants.