Wong (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision concerning a Business Skills (Residence) (Class DF) visa, specifically Subclass 892 (State/Territory Sponsored Business Owner). The core dispute revolved around whether the applicant met the criteria for this visa subclass, particularly in relation to the nominated business.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion 892.211, which pertains to the time of application criteria for the nominated business. This involved determining what constituted the applicant's "main business" and whether it was actively operating in Australia in a manner that met the visa requirements, considering the business's offshore sales and the applicant's stated business activities.

The Tribunal reasoned that a business is an enterprise or undertaking, not merely a legal entity, and that the applicant's nominated business, Avakas Well Services Pty Ltd, primarily engaged in recruitment services for overseas markets. While Avakas was owned by the applicant and her spouse and operated from Australia, the majority of its sales were to offshore customers. The Tribunal noted that a separate business activity, distributing specialised equipment for the oil and gas industry, was not mentioned in the visa application form (Form 1217) and was therefore not considered part of the nominated business for the purpose of the application. Furthermore, the Tribunal found that a subsequently acquired business, PostNet, operated by a different entity and not for the entire application period, could not be considered.

Consequently, the Tribunal concluded that the applicant had not satisfied the relevant criterion and affirmed the decision under review.