Variagin (Migration)

In the matter of *Variagin (Migration)*, the Administrative Appeals Tribunal considered an application for a Subclass 888 (Business Innovation and Investment (Permanent)) visa. The applicant, Mr Variagin, sought review of a decision concerning his eligibility for this visa, which requires, among other things, an ownership interest in an actively operating main business in Australia and direct and continuous involvement in its day-to-day management. The dispute centred on whether Mr Variagin's property development activities constituted a "main business" and whether he had met the criteria for direct and continuous management.

The Tribunal was required to determine whether Mr Variagin had maintained a direct and continuous involvement in the day-to-day management of his property development business. Furthermore, the Tribunal had to ascertain if this property development undertaking qualified as a "main business" for the purposes of the visa application, and if Mr Variagin continued to hold the requisite ownership interest in that business at the time of the decision. The Tribunal also noted that as Mr Variagin had started the business rather than purchasing it, a specific sub-clause relating to purchased businesses did not apply.

The Tribunal reasoned that a business is an enterprise or undertaking, not a legal entity, and therefore it was crucial to identify the specific business to which the definition of "main business" applied. In this instance, the business was property development conducted through Fortune Build Pty. Ltd. The Tribunal affirmed that while policy can guide decision-makers, it must not be applied inflexibly and should only be considered to the extent it aligns with legislative requirements. It is an error of law for the Tribunal to state it must follow policy regarding the interpretation of the Act or Regulations. The primary criteria for the visa, including those specific to the Business Innovation stream, must be satisfied at the time of the decision.

The Tribunal concluded that the matter should be remitted for reconsideration. This course of action was taken because the decision had been made without a hearing, and the Tribunal needed to fully assess whether Mr Variagin met the criteria concerning his ownership interest, the active operation of the business, and his direct and continuous involvement in its management.