Yang (Migration)

This matter concerned an application for a Business Skills (Residence) (Class DF) visa, specifically a Subclass 892 (State/Territory Sponsored Business Owner) visa. The applicant sought review of a decision not to grant the visa. The core of the dispute revolved around whether the applicant continued to meet the primary criteria for the visa at the time of the decision, particularly concerning her ownership interest in an actively operating main business.

The Tribunal was required to determine whether the applicant satisfied the primary criteria under clause 892.21 of the Migration Regulations 1994, with a specific focus on clause 892.221, which pertains to the applicant's circumstances at the time of the decision. This included assessing whether the applicant continued to satisfy the criteria in clauses 892.211 and 892.214, and if applicable, clause 892.212(b). The central issue was the applicant's continued ownership interest in an actively operating main business.

The Tribunal found that the applicant's business, Superjuice Bar, had ceased operations in March 2020 due to COVID-19 lockdowns. The company was subsequently deregistered, and its Australian Business Number (ABN) was cancelled. The applicant had not operated any other business or continued the Superjuice Bar under a different entity since January 2020. The Tribunal noted that while the applicant had successfully operated the business for five years, she was unaware of the requirement to maintain an actively operating business at the time of the decision. As the applicant failed to meet this essential criterion, the Tribunal concluded that the visa criteria could not be satisfied, and it was unnecessary to consider other issues.

The Tribunal affirmed the decision not to grant the applicant the Business Skills (Residence) (Class DF) visa. However, it noted that the applicant could still request consideration of unique or exceptional circumstances directly from the Minister, by providing additional material and information in line with the Ministerial Guidelines.