YU v Minister for Immigration

The applicant sought remedies under s 476 of the *Migration Act 1958* (Cth) following a decision by the Administrative Appeals Tribunal (Tribunal) that affirmed a primary decision-maker's refusal to grant a Business Skills (Residence) (Class DF) Business Owner (subclass 890) visa. The dispute centred on whether a specific criterion for the visa needed to be satisfied at the time the Tribunal made its decision or at the time the primary decision-maker refused the application.

The court was required to determine the correct time at which the applicant had to satisfy the criteria set out in clauses 890.22 and 890.221 of Schedule 2 to the *Migration Regulations 1994* (Cth). Specifically, the court had to consider whether the applicant needed to continue to satisfy the criteria in clause 890.211, which requires an ownership interest in a main business for at least two years immediately before the application, at the time of the Tribunal's review or at the time of the initial refusal.

The court examined the wording of clause 890.221, which states that "The applicant continues to satisfy the criteria in clauses 890.211, 890.215 and 890.216." The court reasoned that the word "continues" indicated an ongoing requirement. Therefore, the applicant was obliged to satisfy clause 890.211 at the time of the Tribunal's decision, not merely at the time of the primary decision-maker's refusal. The applicant had failed to satisfy the delegate regarding her ownership interest in Elbelle’s Early Learning Centre Pty Ltd and her direct and continuous involvement in the management of New Australia Agricultural Development Company Pty Ltd. Furthermore, the Tribunal had obtained information suggesting the applicant had ceased to be a shareholder of NAADCO, which, in light of the ongoing requirement under clause 890.221, meant she no longer satisfied the criteria. The court found no jurisdictional error in the Tribunal's decision.