Chen (Migration)

The Administrative Appeals Tribunal considered the case of Chen (Migration), where the applicant sought review of a decision concerning a Business Skills (Residence) visa subclass 890. The core dispute revolved around whether the applicant's main business in Australia met the net asset threshold of A$100,000 at relevant times. The Tribunal was tasked with determining the applicant's eligibility for the visa, specifically focusing on the criteria related to her ownership and the operational status of her nominated business.

The legal issues before the Tribunal included whether the applicant held the requisite ownership interest in her main business, Zhong Lian Australia Pty Ltd (ZLA), for at least two years prior to her visa application and continued to hold that interest at the time of the application and decision. The Tribunal also needed to assess whether ZLA was an actively operating business and if it qualified as a "main business" for the purposes of the visa criteria. Furthermore, the Tribunal was required to determine if the net assets of ZLA met the specified threshold of A$100,000.

The Tribunal reasoned that to satisfy clause 890.211(1) of the Migration Regulations 1994, the applicant must demonstrate an ownership interest in an actively operating main business in Australia for the specified periods. An ownership interest was defined to include being a shareholder in a company carrying on the business. The Tribunal noted that ZLA was incorporated in November 2013, and the applicant was appointed a director on that date. ASIC records indicated that the company was initially established with 100 founder's shares, which later became ordinary shares, with an additional 99,900 ordinary shares allotted in August 2015. The Tribunal's analysis focused on the applicant's shareholding in ZLA to establish her ownership interest.

Given the findings regarding the applicant's ownership interest and the operational status of the business, the Tribunal concluded that the matter should be remitted for reconsideration. This indicates that the Tribunal found an issue with the original decision, likely concerning the assessment of the net assets or other aspects of the business criteria, necessitating a further review by the delegate.