Richardson (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision concerning a Business Skills (Residence) (Class DF) visa, specifically a Subclass 892 (State/Territory Business Owner) visa. The core dispute revolved around whether the applicant had demonstrated the requisite ownership interest in an actively operating main business during the application period and at the time of the decision. The applicant nominated Fry Group Foods Pty Limited as the main business, with her ownership interest held indirectly through I Skye Nominees Pty Limited, acting as trustee for the I Skye Trust.

The Tribunal was required to determine if the applicant met the requirements of clause 892.211(1) and the main business test, which necessitates a specific level of ownership interest in an actively operating main business. Furthermore, clause 892.221(a) required the applicant to continue satisfying this ownership requirement at the time of the Tribunal's decision. The applicant's ownership interest was structured through a corporate entity, Fry’s International Holdings Pty Limited, in which I Skye Nominees held shares. The Tribunal had to assess the applicant's legal and beneficial ownership of these shares, considering the initial shareholding, subsequent share issuances, and a later transfer of all shares.

The Tribunal's reasoning focused on the definition of "ownership interest" as provided in the regulations, which includes beneficial ownership if evidenced appropriately. The applicant and her family asserted an intention for beneficial ownership of shares in Fry’s International Holdings Pty Limited to be held equally among family members, including the applicant, from the business's inception. The Tribunal considered authenticated documents and the retrospective amendment of trust deeds to establish beneficial ownership. The Tribunal found that the applicant, through the I Skye Trust, held a beneficial ownership interest in the shares of Fry’s International Holdings Pty Limited at all relevant points in time, satisfying the legislative requirements for the visa subclass.