Zhang (Migration)

This matter concerned an appeal by the applicants against a decision concerning their Subclass 888 (Business Innovation) visa applications. The applicants had previously been granted a Subclass 188 Provisional visa in December 2016. While the first applicant and her husband operated a glass business in China, they established Wei Hao Pty Ltd (the Business) in Australia in July 2017, with the stated primary activity being the export of Australian wine and other products to China. The appeal was heard by Robyn Anderson, a Member of the Tribunal.

The central legal issue before the Tribunal was whether the Business met the definition of a "main business" as defined in regulation 1.11(1) of the Migration Regulations 1994, specifically in relation to clause 888.222 of Schedule 2. This clause requires an applicant to have had an ownership interest in an actively operating main business in Australia for the two years immediately preceding the application, and for this criterion to continue to be met at the time of the decision. The Tribunal was required to determine if the Business qualified as a "main business" and if the applicants had satisfied the ownership and active involvement requirements.

The Tribunal found that the first applicant had a clear ownership interest in the Business, being its sole shareholder and director since its incorporation. However, the Tribunal noted that the Business had not exported wine during the relevant two-year period due to anti-dumping duties imposed by China on Australian wine. While the applicant argued that this was due to external factors and that she was actively seeking to diversify export opportunities and had a limited customer base, the Tribunal considered the lack of wine exports as a significant factor in assessing whether the Business was "actively operating" in its nominated main business activity. The Tribunal also considered the applicant's direct and continuous involvement in the management of the Business.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration by the Department in respect of the first, third, and fourth named applicants. The Tribunal directed that the first named applicant met the criteria under clause 888.222 of Schedule 2 to the Regulations. The applications of the third and fourth applicants were to be determined by reference to the outcome of the first applicant's application on remittal, as they applied as family unit members. The Tribunal stated it had no jurisdiction in relation to the second named applicant.