Established Business Owner Visa Refusal: Migration Tribunal Reasons

Matter Refused: Established Business Owner Visa

This decision considered ownership interest, and direct and continuous involvement in management.

The applicant applied for the 845 Business Skills-Established Business (Residence) (Class BH) visa which was refused by a delegate of the Minister for Immigration and Citizenship.

The delegated officer was not satisfied that the applicant, in his initial role of Installation Manager during the relevant period July 2003 to January 2005, maintained direct and continuous involvement in the management of the business in the 12 months immediately preceding the making of the application, as required by cl.845.216 of Schedule 2 to the Migration Regulations. This is not a matter our firm handled.

The delegate decided that managing one division of a business did not constitute involvement in managing the whole of that business.

The officer was also not satisfied by the nature of the applicant’s shareholding for the purposes of satisfying cl.845.213.

Held: Decision under review set aside.

On review it was accepted that in his role as Installation Manager, the applicant was part of a small management group directing a substantial workforce and directly and continuously involved in the board’s decisions regarding the running of the business for the purposes of satisfying cl.845.216.

On review it was also found that the applicant had a 10% ownership interest in the business as required by cl.845.213.

Although the applicant’s shares did not attract all the same rights as ordinary shares, in the review it was accepted that the applicant had an ownership interest in the sense that if the business(es) were to be wound up as a going concern, the applicant was entitled to participate in the distribution of the assets to a value of 10%. Accordingly, it was found that the applicant met cl.845.213 for the purposes of the grant of the visa.