Shi (Migration)

This matter concerned an appeal by Ms Shi and other applicants for Business Skills (Residence) (Class DF) visas, specifically Subclass 892 (State/Territory Sponsored Business Owner) visas. The dispute centred on whether Ms Shi met the criteria set out in clause 892.212 of Schedule 2 to the Migration Regulations 1994, which requires an applicant to satisfy at least two of three specified requirements in relation to their main business in Australia. The Administrative Appeals Tribunal (the Tribunal) considered the matter and ultimately decided to remit the applications for reconsideration.

The primary legal issue before the Tribunal was to determine whether Ms Shi met the requirements of clause 892.212 of Schedule 2 to the Regulations, which, in the absence of exceptional circumstances determined by the regional authority, mandates that the applicant, their spouse, or both, must meet at least two of the three criteria under clauses 892.212(a), (b), or (c) in their main business in Australia. This assessment was to be made for the period between 4 October 2016 and 3 October 2017, as Ms Shi lodged her application on 4 October 2017. The definition of "main business" was also a point of consideration, as set out in regulation 1.11(1) of the Regulations.

The Tribunal's reasoning focused on the definition of "ownership interest" as provided in section 134(10) of the Act, which includes being a shareholder in the company carrying on the business. Evidence from the Australian Securities and Investments Commission (ASIC) confirmed that Ms Shi was the sole director and shareholder of Zhi Xue Pty Ltd, the company operating the nominated business, Foodmarket Cellars – Noble Park, since its incorporation. This established that the first criterion for a "main business" under regulation 1.11(1)(a) was met. The Tribunal found that the other applicants' applications were dependent on the outcome of Ms Shi's application.

Consequently, the Tribunal remitted the applications for Business Skills (Residence)(Class DF) visas for reconsideration. The direction was that Ms Shi met the criteria under clause 892.212 and clause 892.221(b) of Schedule 2 to the Migration Regulations 1994. The applications of the other named applicants were to be determined by reference to the outcome of Ms Shi's reconsidered application.