Lin (Migration)

This matter concerned an application for a Business Skills - Established Business (Residence) (Class BH) visa, subclass 845. The applicant sought to satisfy the business skills points test, which required a score of at least 105 points. The delegate had awarded the applicant 40 points, with zero points for business attributes, leading to the current review by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the 'business attributes' criteria under Part 1 of Schedule 7 of the Migration Regulations 1994. Specifically, this involved determining if the applicant's main business had provided employment equivalent to at least three full-time employees over the 12 months preceding the application, and if those employees were Australian citizens, permanent residents, or eligible New Zealand citizens. The applicant also needed to satisfy a turnover requirement of not less than AUD $200,000 or an export value of not less than AUD $100,000 in the same period.

The Tribunal found that the delegate had not been satisfied that the applicant had provided sufficient evidence regarding the hours of employment, the migration status of the employees, or the minimum wage payments made to them. However, due to discrepancies between PAYG and BAS statements and the financial statement, and the passage of time since the relevant period, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant be considered to meet the criterion in cl.845.222(1) of Schedule 2 to the Regulations, with reconsideration to occur in relation to any other outstanding criteria.