Hu (Migration)

The Administrative Appeals Tribunal considered an appeal by Mr Hu (the applicant) against a decision not to grant him and his family Business Innovation and Investment (Permanent) (subclass 888) visas. The central dispute concerned whether the applicant had met the requirement of having an ownership interest in at least one actively operating main business in Australia during the two years immediately before his visa application was lodged on 1 April 2020.

The Tribunal was required to determine if the applicant satisfied clause 888.222 of the Migration Regulations 1994, which mandates an ownership interest in at least one actively operating main business. This involved interpreting the definitions of "ownership interest," "main business," and "qualifying business" as provided in the Migration Act 1958 and the Migration Regulations 1994. Specifically, the Tribunal had to assess whether two identified business activities – a seafood export business and a bakery business – met the criteria of being actively operating main businesses during the relevant period of 1 April 2018 to 31 March 2020.

The Tribunal found that while the seafood export business had been in operation for some time, the evidence did not establish it as a "main business" as defined by the regulations, particularly concerning its provision of goods and services to the public and its profit-making purpose. The bakery business, which had not yet opened by the start of the relevant period, clearly did not meet the criteria of being actively operating. The Tribunal concluded that the applicant had not demonstrated that he met the requirements of clause 888.222.

Consequently, as an essential requirement for the visa was not met, the Tribunal affirmed the decision not to grant the applicants the Business Innovation and Investment (Permanent) (subclass 888) visas.