CHEN (Migration)

This matter concerned an appeal by the applicant, Mr. Chen, against a decision by the Department of Immigration and Border Protection to refuse his application for a Subclass 890 (Business Owner) visa. The core of the dispute revolved around whether Mr. Chen continued to meet the requirements of clause 890.221 of the Migration Regulations 1994, specifically concerning his ownership interest and continuous involvement in a qualifying business. The Administrative Appeals Tribunal was tasked with determining if the applicant satisfied the primary criteria for the visa at the time of the Tribunal's decision.

The legal issues before the Tribunal were whether the applicant continued to satisfy the primary criteria for the Business Skills (Residence) (Class DF) visa, Subclass 890, as required by clause 890.221. This involved determining whether the applicant maintained a direct and continuous involvement in the management of the main business, whether his ownership interest, or that of his spouse, constituted at least 10% of the total value of the business, and whether the business remained a "qualifying business" operated for the purpose of making a profit, rather than for speculative or passive investment.

The Tribunal's reasoning focused on the evidence presented regarding the applicant's ongoing engagement with his business, CK Australia Trading Pty Ltd. Despite the closure of the initial restaurant, Broadbeach Kitchen Carvery, due to external factors, the Tribunal found that CK Australia Trading Pty Ltd continued to operate for profit by actively seeking and acquiring a new business, Coomera Fresh and Cooked Seafood. The Tribunal was satisfied that the applicant maintained direct and continuous involvement in the management of CK Australia Trading Pty Ltd, including decision-making regarding its overall direction and performance, and that his ownership interest remained at least 10%. The Tribunal concluded that the business, even during periods of transition and search for new ventures, was consistently operated for the essential purpose of making a profit, thus qualifying as a "qualifying business" under the regulations.

Consequently, the Tribunal set aside the Department's decision and remitted the applications for the Business Skills (Residence) (Class DF) visas with a direction that the applicant continued to satisfy the primary criteria in clause 890.211 for the purposes of clause 890.221 of the Migration Regulations 1994 at the time of the Tribunal's decision.