Time of Decision Criteria for Subclass 890 Business Owner Visa
The case in contention is in relation to Subclass 890 Business Owner Visa. The question asked at Federal Court is whether the criteria at “time of decision” refers to the time of the delegate’s decision or that of the Tribunal.
890.211 “time of application” requirement
The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.
890.221 “time of decision” requirement
The applicant continues to satisfy the criteria in clauses 890.211…
The Court cited an interesting case, Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, in which Gummow and Hayne JJ stated that, when the Tribunal makes a review application for refused protection visa, it must decide whether the applicant is a person to whom Australia owes protection obligations at the time of its decision. In doing so, the Tribunal needs to observe the case afresh the powers of the original decision-maker.
The Court stated that it does not read the provision indicating a legislators’ intention to grant a Business Owner Visa to a person without an ownership interest in an actively operating main business at the time of the Tribunal’s decision on review, just because he or she had held that interest at the time of the delegate’s original decision.
Hence, the Tribunal had to be satisfied that the appellant continue to hold an “ownership interest” in a “main business” at the time of its decision.
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