Low (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision by the Minister for Immigration to refuse a Business Skills (Permanent) Subclass 888 visa. The applicant, Mr Eng Heng Low, sought to have the refusal overturned, arguing he met the visa criteria. The primary issue was whether Mr Low had maintained direct and continuous involvement in the management of his business on a day-to-day basis during the two years prior to his visa application.

The Tribunal was required to determine if Mr Low satisfied clause 888.222 of Schedule 2 to the Migration Regulations 1994, which mandates an ownership interest in an actively operating main business in Australia and continued ownership. Crucially, the definition of a "main business" under regulation 1.11 includes the requirement for the applicant to maintain direct and continuous involvement in the management of the business from day to day and in making decisions affecting its overall direction and performance. The delegate had refused the visa on the grounds that Mr Low's significant periods spent outside Australia cast doubt on his continuous and direct involvement in the business's management.

The Tribunal acknowledged that Mr Low had a 100% ownership interest in Bintangorose Pty Ltd, which operated a Jesters franchise pie shop. While Mr Low spent a substantial portion of the relevant period (328 out of 731 days) outside Australia, the Tribunal considered various pieces of documentary evidence, including correspondence with the City of Perth, New West Foods Pty Ltd, his accountant Ms Maria Hall, the shopping centre administrator, and Jesters Franchising. These documents, particularly emails concerning BAS returns, tax returns, supplier payments, sales figures, and insurance, indicated Mr Low's involvement in the business's management during the relevant period, even when he was overseas. The Tribunal accepted Mr Low's explanation for his overseas travel, attributing it to family reasons, and found that the evidence, when viewed holistically, demonstrated sufficient day-to-day management and decision-making involvement.

Consequently, the Tribunal remitted the applications for Business Skills (Permanent) (class EC) visas for reconsideration. The remittal was made with the direction that the first-named applicant, Mr Eng Heng Low, meets clause 888.222 of Schedule 2 to the Regulations.