Liu (Migration)

This matter concerned an appeal by Ms Liu against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal to grant her a Subclass 892 State/Territory Sponsored Business Owner visa. The central dispute revolved around whether Ms Liu had satisfied the requirements of clause 892.211(2)(b) of Schedule 2 to the Migration Regulations 1994, specifically concerning the inclusion of Business Activity Statements (BAS) in her visa application.

The primary legal issue before the court was to determine the proper interpretation and application of clause 892.211(2)(b), which requires that BAS for the relevant period "have been included in the application." This clause, read in conjunction with clause 892.211(2)(a) which requires the business to be a going concern, necessitates that the BAS demonstrate business activity as a going concern over a period of two years prior to the visa application. The court was required to consider whether the BAS submitted by Ms Liu met this requirement, particularly in light of the timing of their submission.

The court reasoned that clause 892.211(2)(b) imports an objective temporal test, meaning the BAS must have been included with the visa application at the time of lodgement. The court affirmed the validity of this regulation, noting that it serves the clear purpose of requiring applicants to establish business activity as a going concern over the specified period. While acknowledging that strict application of the regulation might lead to harsh consequences for applicants, the court found that this alone was insufficient to establish invalidity. The court referred to the precedent set in *Nasirzadeh*, where a late submission of BAS was found not to meet the requirement, and that the regulation was valid and a late submission did not satisfy the criterion.

Consequently, the Tribunal affirmed the decision not to grant Ms Liu the Business Skills (Residence) (Class DF) visa. As Ms Liu, the primary applicant, failed to satisfy the time of application criteria, the secondary applicants, who were her family members, were also unable to satisfy clause 892.311 of Schedule 2 to the Regulations, as they were not members of a family unit of a person who held a Subclass 892 visa granted on the basis of satisfying the primary criteria. Therefore, the decision in relation to all applicants was affirmed.