Vellaisamy (Migration)

The Administrative Appeals Tribunal considered the decision to refuse a Subclass 188 (Business Innovation and Investment (Provisional)) visa to Ramesh. The applicant, Ramesh, sought to satisfy the requirements of the Business Innovation stream of this visa. The Tribunal was also provided with correspondence alleging fraudulent activity by Ramesh in relation to a company, SRI Murugan Trading Pty Ltd, in which he had been a director and shareholder.

The primary legal issues before the Tribunal were whether Ramesh had a sufficient ownership interest in an established main business for at least two of the four fiscal years preceding his invitation to apply for the visa, and whether that business achieved an annual turnover of at least $500,000 in each of those years. The Tribunal also had to consider the nature of Ramesh's interest in the business and identify the specific business to which the definition of "main business" applied, distinguishing between a business and the legal entity that operates it.

The Tribunal found that Ramesh was a director and shareholder of SRI Murugan Trading Pty Ltd from 30 August 2018 to 6 December 2021. However, the visa application required proof of ownership interest for at least two of the four fiscal years immediately before the invitation to apply. The Tribunal noted that case law establishes a business is an enterprise, not a legal entity, and that an Australian Business Number attaches to an entity, not a business. Ramesh claimed he worked in businesses in India and Singapore prior to moving to Australia but stated he did not have an ownership interest in those businesses, thus they could not be relied upon for his application. The Tribunal placed no weight on the allegations of fraud made in correspondence, as no evidence was provided to support them and Ramesh had already disclosed his departure from SRI Murugan Trading Pty Ltd.

The Tribunal concluded that the decision under review should be affirmed and recommended Ministerial Intervention.