He (Migration)

This matter concerned an application for review of a delegate's decision to refuse a Subclass 890 (Business Owner) visa. The applicant, who claimed a 50% ownership interest in T & Y Capital Holdings Pty Ltd, was found by the delegate not to have maintained direct and continuous involvement in the management and decision-making activities of the nominated business. The delegate concluded that the business did not meet the definition of a "main business" under Regulation 1.11 of the Migration Regulations 1994, and consequently, the applicant did not meet the visa requirements.

The primary legal issue before the Tribunal was whether the applicant had maintained direct and continuous involvement in the management of the business from day to day and in making decisions affecting its overall direction and performance, as required by Regulation 1.11(1)(b). This involved assessing whether the nominated business qualified as a "main business" under the Regulations, which defines such an enterprise as one operated for profit, other than for speculative or passive investment.

The Tribunal considered the applicant's evidence regarding the business's operations, which initially involved labour hire services and later diversified into business and accounting consultancy. The Tribunal acknowledged that the applicant had an ownership interest and, drawing on the principles from *Lobo v MIMA* [2002] FCAFC 168, determined that direct and continuous involvement could manifest in various ways depending on the specific business. The Tribunal was satisfied, based on the written and oral evidence, that the applicant had been actively involved in collecting outstanding accounts, establishing new service processes, and making key decisions regarding the business's direction, thereby meeting the requirements of Regulation 1.11(1)(b).

Consequently, the Tribunal found that the applicant had maintained direct and continuous involvement in the nominated business and that the business met the definition of a main business. The delegate's decision was set aside, and the matter was remitted for reconsideration.