Mao (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Business Innovation and Investment (Provisional) (Extension) Subclass 188 visa. The primary applicant's eligibility for the visa was in question, and the second applicant's eligibility was contingent on the first applicant's.

The central legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 188.232 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had held an ownership interest in one or more main businesses that were actively operating in Australia for at least two years immediately preceding the visa application, and if that ownership interest continued. The Tribunal also considered the definition of a "main business" and "qualifying business" under the Regulations.

The Tribunal's reasoning focused on the applicant's business activities in the period between 9 April 2016 and 10 April 2018. The applicant had operated a restaurant business through Australian Silverwater Pty Ltd from November 2015 until October 2016. Following the restaurant's closure, the applicant commenced an export business, which she stated began operating in April 2017. The Tribunal noted that the export business's sales were exclusively to Nanjing Weizhou Airline Food Corp, a company formerly owned by the applicant and her ex-husband, and not to the public. Furthermore, the Tribunal observed that the business had ceased current activity due to COVID-19 and Chinese government import restrictions. The Tribunal concluded that the applicant had not demonstrated the required ownership interest in an actively operating main business for the specified two-year period.

Consequently, the Tribunal affirmed the decision not to grant the Business Innovation and Investment (Provisional) (Extension) Subclass 188 visa to the applicants. As the primary applicant did not meet the visa requirements, the secondary applicant, who applied as a member of the family unit, also did not qualify.