Shao (Migration)

This matter concerned an appeal by Mr. Shao against a decision by the Tribunal to affirm the refusal of his Subclass 188 (Business Innovation and Investment (Provisional)) visa application, specifically for the Business Innovation Extension Stream. The core dispute revolved around whether Mr. Shao met the requirement that his main business had been actively operating for at least two years immediately prior to his visa application.

The legal issue before the Tribunal was to determine if Mr. Shao satisfied clause 188.232 of Schedule 2 to the Migration Regulations 1994. This clause requires an applicant to have had an ownership interest in one or more main businesses that were actively operating for at least two years immediately before the application was made, and to continue to hold that ownership interest. The Tribunal also considered whether a concession period, as defined in regulation 1.15N, was applicable, which would have allowed for a cumulative period of operation while holding a specific type of visa.

The Tribunal found that clause 188.232(1)(b) was not applicable because Mr. Shao was not holding a Subclass 188 visa in the Business Innovation stream or the Business Innovation Extension stream during the relevant concession period. The application was lodged on 27 February 2019, making the relevant period for active operation 27 February 2017 to 26 February 2019. While it was accepted that the business had been actively operating from 30 October 2018, the period from 27 February 2017 to October 2018, representing more than half of the required two years, was not actively operating. Consequently, the Tribunal concluded that the criteria for the visa grant were not met.

The Tribunal affirmed the decision not to grant Mr. Shao the Subclass 188 visas for the Business Innovation Extension Stream.