Weng (Migration)

The Administrative Appeals Tribunal considered the case of Mr Weng concerning his application for a Business Innovation and Investment (Class EB) visa, Subclass 188 (Business Skills (Provisional)). The core dispute revolved around whether Mr Weng had met the requirement of having an ownership interest in a main business that was actively operating in Australia for at least two years immediately before his application.

The Tribunal was tasked with determining whether the applicant satisfied clause 188.232(1) of the Migration Regulations, which mandates that an applicant must have had an ownership interest in one or more main businesses that were actively operating in Australia for the two years preceding their application. The term "actively operating" was not defined in the legislation, requiring the Tribunal to consider whether the business exhibited activity of a repetitive, continuous, and permanent character, actively seeking to generate business, actually generating trade and custom, and deriving financial gain during the relevant period, as established in *Shahpari v Minister for Immigration and Border Protection* [2016] FCCA 513. The relevant two-year period for Mr Weng's application, made on 16 October 2018, was from 16 October 2016 to 15 October 2018.

The Tribunal found that the applicant's claimed main business, Martin & Mari Pty Ltd trading as Crown on the Hill Cellars, was not purchased by the company until some time in 2018, with the lease transfer dated 30 January 2018. While the applicant claimed to have managed and controlled the company since April 2016, there was no evidence presented to the Tribunal regarding any business activities undertaken by the company prior to its purchase of the business. Furthermore, the applicant had not provided evidence of a liquor licence authorising the business to operate legally, and as of December 2018, no such licence was in place in Victoria. Consequently, the Tribunal concluded that the applicant had not demonstrated that the business was actively operating in Australia for the required two-year period.

As Mr Weng did not meet the criteria under clause 188.232, his migrating family members could not demonstrate that they were members of the family unit of a Subclass 188 visa holder, and therefore did not meet the criteria under clause 188.311. The Tribunal affirmed the decision under review.