Shao (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to refuse Subclass 892 (State/Territory Business Owner) Business Skills (Residence) (Class DF) visas to Mrs Shao and her family. The primary applicant, Mrs Shao, was required to satisfy the primary criteria for the visa, while the secondary applicants, as members of her family unit, were subject to secondary criteria. The delegate's refusal was based on the assertion that Mrs Shao had not provided sufficient evidence to determine the turnover of her main business and had not submitted Business Activity Statements (BAS) with her initial application, providing them only later. Consequently, the secondary applicants also failed to meet the criteria.

The Tribunal was required to determine two key issues. Firstly, whether the BAS were included in the visa application, and secondly, if they were, whether the net turnover of the nominated main business was sufficient to meet the definition of a main business. The Tribunal noted that while it would ordinarily apply relevant policy, it would only do so if the policy was lawful and did not lead to an unjust decision, and it would not be bound by policy if it contradicted the legislation.

In addressing the first issue, the Tribunal considered the meaning of "included in the application" as interpreted by the courts, which requires a close temporal connection between the provision of the BAS and the time of application. Clause 892.211(2)(b) of the Migration Regulations mandates the inclusion of BAS for the two years preceding the application. The Tribunal's determination on this first issue would then dictate whether it proceeded to consider the second issue regarding the business turnover.