Cai (Migration)

The Administrative Appeals Tribunal considered an appeal by an applicant for a Subclass 132 Business Talent (Permanent) visa, Significant Business History stream. The applicant sought to demonstrate that her nominated business, Qinhuang Fisheries (Shanghai) Co. Ltd., met the annual turnover requirements for the visa. The delegate had refused the application, finding the applicant had not provided sufficient evidence of her ownership interest in the nominated business for the relevant fiscal years.

The primary legal issue before the Tribunal was whether the applicant had demonstrated a sufficient ownership interest in Qinhuang Fisheries (Shanghai) Co. Ltd. for at least two of the four fiscal years preceding her invitation to apply, as required by clause 132.225 of the Migration Regulations 1994. This involved determining the applicant's beneficial ownership of shares in the company, either directly or indirectly through other entities, and whether the provided documentation met the evidentiary requirements of regulation 1.11A(2). The Tribunal also needed to assess if the applicant had maintained direct and continuous involvement in the management of the business and if the business qualified as a "qualifying business" under the regulations.

The Tribunal found that the applicant had established a sufficient indirect ownership interest in Qinhuang Fisheries (Shanghai) Co. Ltd. through her 40% shareholding in Global Team (Asia Pacific) Group Limited (HK Global Team), which in turn held a significant percentage of shares in the nominated company. The Tribunal was satisfied that HK Global Team's shareholding in the nominated company was 85% during the relevant periods, and therefore the applicant's indirect ownership interest was 34%. This met the requirement of at least 30% beneficial ownership for a non-publicly listed company with an annual turnover exceeding AUD 400,000. The Tribunal was also satisfied that the applicant had demonstrated direct and continuous management involvement and that the business was a qualifying business.

Consequently, the Tribunal remitted the matter to the Department for reconsideration of the remaining visa criteria, with a direction that the applicant had met the criterion under clause 132.225.