PERERA (Migration)

The Administrative Appeals Tribunal considered an application for a Business Skills (Residence) (Class DF) visa, subclass 892, made by an applicant who nominated Adriyan Holdings Australia Pty Ltd as their main business. The applicant and their spouse held 100% of the shares in the company, which was described as operating an import and export business dealing in machinery, spare parts, and chemicals, with a primary client base in Asia. The Tribunal was required to determine whether the applicant met the visa requirements, particularly concerning the net value of business assets and the nature of the business activities conducted in Australia.

The central legal issues before the Tribunal were whether the applicant's business met the net asset value requirement and whether the activities conducted by the business qualified it as a "qualifying business" for the purpose of the visa. The applicant's accountants asserted that the net assets were at least $75,000 throughout the relevant 12-month period, with income derived from "service charges" (a 15% fee on export sales invoices payable by an overseas branch) and import/export income, which could be minimal. The Tribunal examined the nature of these income streams and the extent to which the business's operations constituted a genuine and substantial business activity in Australia.

The Tribunal reasoned that the applicant's business did not meet the net asset requirement. Furthermore, it found that the business's activities, particularly the reliance on service charges calculated as a percentage of export sales and the limited direct import/export transactions conducted within Australia, did not constitute a qualifying business for the visa subclass. The Tribunal concluded that there were no exceptional circumstances to warrant a departure from these findings. Consequently, the Tribunal affirmed the decision not to grant the Business Skills (Residence) (Class DF) visa to the applicant and, by extension, to the secondary applicants who applied as members of the family unit.