KIM (Migration)

This matter concerned an application for a Subclass 890 (Business Owner) visa. The applicant claimed to hold a 100% ownership interest in a business named Sushi Ever, which operated as a sushi eat-in and take-away shop. However, the applicant informed the Tribunal that this business had been sold in April 2018, prior to the decision date. The applicant was currently managing a site maintenance business for his cousin, which was operated under a verbal contract. The Tribunal was required to determine whether the applicant continued to satisfy the visa requirements, specifically concerning his ownership interest in a main business.

The central legal issue before the Tribunal was whether the applicant met the requirements of clause 890.211 and clause 890.221 of the Migration Regulations 1994. Clause 890.211(1) mandates that an applicant must have had an ownership interest in one or more actively operating main businesses in Australia for at least two years immediately before the visa application and continue to have that interest at the time of application. Clause 890.221 requires the applicant to continue to satisfy this requirement at the time of the decision. The Tribunal had to consider the nature of the applicant's interest, the active operation of the business, and whether it qualified as a "main business" both at the time of application and at the time of the decision.

The Tribunal reasoned that the applicant's sale of Sushi Ever meant he no longer held an ownership interest in that business. While the applicant was involved in a different business, the Tribunal noted that this was managed under a verbal contract and was in a different field to the nominated main business. The Tribunal applied the principle that the business itself, rather than the legal entity operating it, is the focus for determining ownership interest. As the applicant had divested his ownership in the nominated main business and was not demonstrably satisfying the ownership criteria for any other qualifying business at the time of the decision, he failed to meet the essential requirements for the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 890 visa, finding that he had not satisfied the necessary criteria.