Li (Migration)

This matter concerned an application for a Business Skills (Residence) (Class DF) visa by Ms Ming Li. The primary dispute revolved around whether Ms Li met certain criteria stipulated in Schedule 2 of the Migration Regulations 1994, specifically concerning the annual turnover of her business, Blue Sky, and its continued operation in Australia. A further issue was whether Ms Wangjun Zhou qualified as a member of Ms Li's family unit for the purposes of the regulations.

The court was required to determine three key legal issues. Firstly, whether Blue Sky achieved an annual turnover of at least AUD200,000 in the 12 months preceding Ms Li's visa application, as required by cl 892.213(2). Secondly, the court had to ascertain if Blue Sky had continued to actively operate in Australia from the time of the application until the decision, and if Ms Li had maintained an ownership interest in the business, as per cl 892.221(a). Finally, the court needed to decide if Ms Wangjun Zhou was a member of Ms Li's family unit for the purposes of cl 892.3.

Regarding the turnover issue, the court considered financial statements and business activity statements provided by Ms Li, which prima facie indicated an annual turnover exceeding AUD200,000. However, the delegate raised concerns that Blue Sky operated as an agent for other entities, meaning only commission or service revenue, not gross sales value, should be counted towards turnover. The court did not make a final determination on this point, nor on the other substantive issues.

Instead, the Tribunal remitted the applications for Business Skills (Residence) (Class DF) visas for reconsideration by the Minister. The direction was that the first applicant, Ms Ming Li, met the criteria for a Subclass 892 (State/Territory Sponsored Business Owner) visa, including cls 892.211, 892.212(a) and (b), 892.213, 892.214, 892.215(a), 892.221 and 892.222 of Schedule 2 to the Regulations.