Wang (Migration)

The Administrative Appeals Tribunal considered the case of Wang, an applicant for a Business Skills (Residence) (Class DF) visa, subclass 890 (Business Owner). The dispute concerned whether the applicant met the criteria for an "ownership interest" in an actively operating "main business" in Australia, specifically relating to the business IHome Flooring, conducted by IHome Group Pty Ltd. The Tribunal was tasked with reviewing the delegate's adverse finding regarding clause 890.212 of the Migration Regulations 1994, and also considered clause 890.211(1).

The primary legal issues before the Tribunal were to determine the nature of the applicant's interest in IHome Flooring, whether it constituted an actively operating "main business" for the requisite periods, and to verify the applicant's loan to the nominated business. The Tribunal was required to assess the applicant's ownership interest in the business, defined as a shareholder, partner, or sole proprietor, including indirect interests, and to ascertain if the business was actively operating and met the definition of a "main business" both two years prior to the visa application and at the time of the application.

The Tribunal reasoned that a business is an enterprise or undertaking, distinct from a legal entity, and therefore it was crucial to identify the specific business to which the definition of "main business" applied. It noted that ownership could be held through various structures, including companies, partnerships, or trusts, and that beneficial ownership could be considered if properly evidenced. The Tribunal also acknowledged that one business could be owned by multiple entities, and vice versa. The case was remitted for reconsideration, indicating that the delegate's adverse finding on clause 890.211(1) and potentially other criteria required further assessment.