Tjang (Migration)

This matter concerned an application for a Business Skills (Residence) (Class DF) visa, specifically the Subclass 892 (State/Territory Business Owner) visa. The applicant sought to demonstrate that they met the requirements for ownership interest in an actively operating main business at the time of application and at the time of the decision. The Tribunal was required to determine whether the applicant continued to satisfy the criteria for the visa, particularly in light of the deregistration of the original company through which the applicant held their business interest.

The central legal issue before the Tribunal was whether the applicant's ownership interest in a new company, established after the deregistration of the original company, constituted a continuation of the same business for the purposes of the visa requirements. Specifically, the Tribunal had to consider if the applicant's interest in the new entity, Sambal Hijau Pty Ltd, and subsequently Mighty Feller Pty Ltd, satisfied the criteria of having an ownership interest in an actively operating main business for the requisite periods, both at the time of application and at the time of the decision. This involved assessing whether the new business was considered the "same business" as the original for visa purposes, despite the change in corporate structure and name.

The Tribunal reasoned that for visa purposes, the business relied upon must be the same business. While the applicant had an ownership interest in NDS Blessing Pty Ltd trading as Indomix at the time of application, this company was deregistered in May 2017. The applicant's submission that a new company, Sambal Hijau Pty Ltd, with the same shareholders and director, was established and operating, did not satisfy the requirement that it be the same business. The applicant's own evidence indicated that NDS Blessing Pty Ltd was voluntarily wound down to open a new business, and that the new company was established with a business partner. The Tribunal applied the principle that a change in corporate structure and the establishment of a new entity, even with the same principals, does not automatically equate to the continuation of the same business for migration law purposes.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Business Skills (Residence) (Class DF) visa. The Tribunal also affirmed the decision in respect of the secondary applicants, as they had not demonstrated that they met the primary criteria for the visa.