Nguyen (Migration)

The Administrative Appeals Tribunal considered the applications of Mrs. Nguyen and other applicants for Business Skills (Residence) (Class DF) visas, specifically Subclass 890 (Business Owner). The dispute centred on whether Mrs. Nguyen, as the primary applicant, met the criteria for owning an actively operating main business in Australia for at least two years immediately preceding her visa application. The Tribunal, constituted by Susan Hoffman, ultimately decided to remit the matter for reconsideration.

The core legal issue before the Tribunal was the interpretation and application of clause 890.211 of Schedule 2 of the Regulations. This clause requires an applicant to have had, and to continue to have, an ownership interest in one or more actively operating main businesses in Australia for at least two years prior to the application. The specific period in question was from 25 May 2013 to 24 May 2015. While the delegate was satisfied about the ownership of the cafés from December 2013 onwards, they were not satisfied about the period from 25 May 2013 to December 2013, leading to the refusal of the visas.

The Tribunal found that Mrs. Nguyen operated two distinct businesses: a café and the supply of medical equipment. The café business, operated through the ANHS Family Trust, was purchased in December 2013 and was still trading at the time of the decision. The Tribunal accepted that the café was operating during the relevant two-year period. Crucially, the Tribunal also found that Mrs. Nguyen had a genuine attempt to create an export arrangement for medical supplies to Vietnam, supported by detailed email evidence. This genuine attempt, coupled with the café business, satisfied clause 890.211.

Consequently, the Tribunal remitted the applications for Business Skills (Residence) (Class DF) visas for reconsideration. The direction was that the first-named applicant, Mrs. Nguyen, met clause 890.211 of Schedule 2 to the Regulations. The decision in relation to the other visa applicants was also remitted to allow the Minister to consider the remaining criteria for the grant of the visa.