Kou (Migration)

This matter concerned an application for review of a decision to refuse a Business Skills (Permanent) visa, Subclass 888, made by Ms Kou. The Administrative Appeals Tribunal (AAT) was tasked with determining the correct or preferable decision based on an independent assessment of the facts.

The primary legal issue before the Tribunal was whether Ms Kou had met the requirements for the Business Skills (Permanent) visa, specifically concerning her net business assets and ownership interest in an actively operating main business in Australia. The Tribunal considered various clauses of the relevant regulations, including cl.888.222, cl.888.223, cl.888.224, and cl.888.225, to assess whether the applicant had satisfied the criteria for the visa.

The Tribunal reasoned that while policy could be a relevant factor, it must be applied flexibly and consistently with legislative requirements. The Tribunal noted that it had an obligation to consider all relevant criteria, even if the initial refusal was based on a specific one, to avoid unnecessary remittals. In this instance, the Tribunal examined Ms Kou's ownership interest in a takeaway food business, 'Clarinda Fish and Chippery', which she purchased in 2013 and operated in partnership with Mr Pan. The Tribunal also considered the reasons for any decline in the business's value, ultimately concluding that the applicants had adequately explained these reasons. Despite some initial concerns regarding the explanation and evidence for the purchase of the business and associated loan, and the net business assets at the time of the decision, the Tribunal found that the applicants had met the requirements tested by the Tribunal, other than the net business assets. The Tribunal affirmed the decision under review.