Shan (Migration)

The Administrative Appeals Tribunal considered the applications of Mr. Shan and his family members for Subclass 188 (Business Innovation and Investment (Provisional)) visas. The dispute concerned whether Mr. Shan met the criteria for the Business Innovation Extension stream of this visa subclass, specifically regarding his ownership interest in an export business and its active operation in Australia.

The Tribunal was required to determine if the applicant had an ownership interest in a qualifying business and if that business was actively operating in Australia during the relevant period, as stipulated by clause 188.232 of Schedule 2 to the Migration Regulations 1994. The Tribunal also needed to consider the applications of the other family members, which were dependent on the outcome of the primary applicant's application.

The Tribunal found that the first named applicant, Mr. Shan, met the specified criteria for the Subclass 188 visa. The Tribunal reasoned that the export business qualified as a business in which the applicant had an ownership interest and that this business, along with another entity named McMahons, was actively operating in Australia during the relevant period. Consequently, the Tribunal remitted the applications for reconsideration by the Department, with the direction that the primary applicant satisfied the relevant visa criteria. The applications of the second, third, and fourth named applicants, as family unit members, were to be determined based on this outcome.