Wang (Migration)

The Administrative Appeals Tribunal considered the case of Wang (Migration), where the applicant sought review of a delegate's decision to refuse a Business Skills (Residence) visa, Subclass 890 (Business Owner). The primary dispute concerned whether the applicant met the requirements for ownership interest in a main business, direct and continuous involvement in its management, and the net assets of that business.

The Tribunal was required to determine two key legal issues. Firstly, whether the applicant maintained direct and continuous involvement in the day-to-day management and decision-making of the main business, despite frequent and extended absences from Australia. Secondly, the Tribunal had to assess whether the business, which had reported decreasing revenue and increasing losses annually, was being operated for a purpose other than profit, thereby impacting the applicant's ability to satisfy the "main business test."

The Tribunal reasoned that to satisfy the main business test under clause 890.211(1) of the Migration Regulations, the applicant must demonstrate an ownership interest in an actively operating main business in Australia for at least two years prior to the visa application and continue to hold that interest at the time of the decision. The applicant relied on FantAsia Asian Food (FantAsia Toowong), operated by High Happy Pty Ltd, to meet these criteria. The Tribunal noted that "ownership interest" includes being a shareholder in a company that carries on the business. The Tribunal's assessment would encompass the nature of the applicant's interest, the business's operational status, and whether it qualified as a "main business" during the relevant periods, including at the time of the decision. The Tribunal concluded that the decision under review should be affirmed.