Yan (Migration)

This matter concerned an application for a Subclass 188 Business Innovation and Investment (Provisional) visa by a Chinese citizen. The applicant had applied for the visa in the Business Innovation stream and claimed a score of 70 points under the relevant points test. However, the visa delegate refused to grant the visa, finding that the applicant had not provided sufficient evidence to support his claims for points in relation to two specific items within Schedule 7A of the Migration Regulations 1994. The Administrative Appeals Tribunal was tasked with reviewing this decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 188.222 of Schedule 2 to the Regulations, which mandates a minimum score on the business innovation and investment points test. This involved determining the applicant's eligibility for points under Schedule 7A, including the definitions of "ownership interest" and "main business," and then assessing whether his claimed score was sufficient. The Tribunal also had to consider the relevant legislative instruments in force at the time of the application and any subsequent amendments.

The Tribunal reasoned that it was necessary to first clarify the definitions of key terms such as "ownership interest" and "main business" before assessing the applicant's points score. The definition of "ownership interest" was provided by section 134(10) of the Migration Act 1958 and regulation 1.03 of the Migration Regulations 1994, encompassing interests as a shareholder, partner, or sole proprietor, including indirect holdings. The Tribunal concluded that the applicant met the criteria for clause 188.222 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant meets the criteria under clause 188.222 of Schedule 2 to the Regulations.