Lim (Migration)

This matter concerned an application for a Subclass 188 (Business Innovation and Investment (Provisional)) visa, investor stream, before the Administrative Appeals Tribunal. The applicant, a citizen of Cambodia, sought to satisfy the primary criteria for the visa, specifically clause 188.244 of the Regulations, which requires direct involvement in managing a qualifying business or eligible investments for at least one of the five fiscal years preceding the invitation to apply. The applicant's invitation to apply was on 3 September 2019, and the application was lodged on 21 September 2019, making the relevant fiscal years 2014 to 2018, as Cambodia's fiscal year aligns with the calendar year.

The Tribunal was required to determine whether the applicant met the criteria under clause 188.244, which could be satisfied either by demonstrating direct involvement in managing a qualifying business with at least a 10% ownership interest, or by demonstrating direct involvement in managing eligible investments totalling at least AUD 1,500,000. The applicant claimed a 50% ownership interest in Mittaheap Furniture Shop from 2001 to 2019 and stated she managed its daily operations. However, the primary evidence provided, a business plan for Mittaheap, was prepared in August 2019 as a proposal for a business in Australia, rather than evidence pertaining to the Cambodian business during the relevant fiscal years.

The Tribunal found that the applicant had not provided sufficient evidence to demonstrate direct involvement in managing a qualifying business or eligible investments during the specified period. The business plan submitted was not relevant to the applicant's claimed management of the Cambodian business during the relevant fiscal years. Consequently, the applicant failed to satisfy the primary criteria for the visa. As the secondary applicants, who were not in Australia when the review application was made, were dependent on the primary applicant meeting the criteria for a Subclass 188 visa, their applications also failed. The Tribunal affirmed the decisions not to grant the visas to the applicants.