Chua (Migration)

This matter concerned an application for a Business Skills (Permanent) visa, Subclass 888, brought before the Tribunal. The primary applicant sought to have certain visa requirements waived due to exceptional circumstances, as permitted under the relevant regulations. The dispute centred on whether the applicant had met the necessary criteria for the visa, particularly concerning business turnover, following a determination of exceptional circumstances by the relevant state authority.

The Tribunal was required to determine whether the primary applicant met the requirements of clause 888.225 of Schedule 2 to the Migration Regulations 1994. Specifically, the court had to consider whether the applicant satisfied the turnover requirement under subclause (5), given that a state authority had determined exceptional circumstances existed, thereby waiving the need to meet at least two of subclauses (2) to (4). The core legal issue was the interpretation and application of clauses 888.225 and 888.226, which govern the conditions for this visa subclass and the circumstances under which those conditions can be waived.

The Tribunal reasoned that the Small Business Development Corporation of Western Australia had indeed determined exceptional circumstances existed and had waived the business requirements relating to employees, net business and personal assets, and assets in the business under regulation 888.226. Consequently, the applicant was only required to satisfy the annual turnover requirement under clause 888.225(5). The evidence presented, including financial reports and activity statements for the nominated business, Oriental Fresh and Frozen Foods (AUS) Pty Ltd, indicated a turnover of $5,029,142 for the period ending 30 June 2017, which significantly exceeded the AUD 300,000 threshold.

Based on these findings, the Tribunal concluded that the primary applicant met the criteria under clause 888.225. The matter was remitted to the Department for reconsideration of the remaining criteria for the grant of the visas. The Tribunal also noted it did not have jurisdiction in respect of the second and third named review applicants.