Surya (Migration)

This matter concerned an application for a Business Skills (Provisional) visa (Subclass 188). The applicant sought to demonstrate that they met the criteria for the visa, specifically clause 188.225(1), which requires an ownership interest in a main business for at least two of the four fiscal years preceding the invitation to apply, with that business having an annual turnover of at least AUD 500,000 in each of those years. The Tribunal was required to determine whether the applicant's claimed ownership interest, which involved a transfer of shares from their father and a declaration of trust, satisfied the legislative requirements.

The central legal issue was the interpretation and application of the definition of "ownership interest" under section 134(10) of the Migration Act 1958 (Cth) and the associated regulations, particularly in circumstances where the applicant's interest was held indirectly through a trust. The Tribunal also had to consider the definition of a "main business" under regulation 1.11, which includes requirements regarding the applicant's direct and continuous involvement in management and the value of their ownership interest. The applicant's argument was complicated by the fact that the concept of a trust and trustee is not recognised under Indonesian law, where the business was operated.

The Tribunal reasoned that for an ownership interest to be recognised under section 134(10), it must be held as a shareholder, partner, or sole proprietor, including indirectly through interposed companies, partnerships, or trusts. However, the Tribunal found that the applicant had not provided sufficient evidence to establish a valid ownership interest that met the threshold requirements, particularly concerning the percentage of ownership and the nature of the indirect holding. The Tribunal noted that the applicant's ownership interest was less than 30%, which was a critical factor in determining whether the business qualified as a "main business" under regulation 1.11.

Consequently, the Tribunal affirmed the decision not to grant the applicants the Business Skills (Provisional) Subclass 188 visas. The Tribunal concluded that the applicant had failed to satisfy the primary criteria for the visa. As a result, the secondary applicant, who was a member of the family unit, also failed to meet the criteria for the visa.