Christopher Levingston Blog

I thought practitioners might be interested in the role of policy in respect of delays in the processing and finalisation of 890 applications.

This will be of particular assistance to Colleagues running matters at the AAT where the first instance 890 application was refused and in the intervening period the business has also collapsed and has ceased to trade.

The argument runs like this:

Relevantly the legislation provides as follows:

890.211 (1)

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.

(2) For each business to which subclause (1) applies:

(a) an Australian Business Number has been obtained; and

(b) all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.

 The above, by reason of the statutory scheme are described as “time of application criterion” the “time of decision criterion” are expressed as follows: 

890.221

The applicant continues to satisfy the criteria in clauses 890.211, 890.215 and 890.216.

This issue has been discussed in the case of Dai Yu by His Honour Manousaridis

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2019/2690.html?context=1;query=%20890.211;mask_path=

His Honour at paragraph 36 says as follows: 

“Finally, it is necessary to consider the relevant matters of which the decision-maker must be satisfied at the time of decision, namely, the “applicant continues to satisfy the criteria in clauses  890.211 , 890.215 and 890.216”. Relevant here is the criterion specified in cl. 890.211  – 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”. Although perhaps awkwardly expressed, the effect of this subclause is clear. It requires that the applicant has had an ownership interest in one or more actively operating main businesses in Australia for at least two years before the applicant applied for the Business visa and after the applicant applied for a Business visa the applicant continues to have an ownership interest in at least one such business.”(my emphasis)

 It is common ground that the Applicant for the visa is no longer in the business following the appointment  of a liquidator. 

However, this onerous requirement has been considered in policy by the Department and that will also inform your decision in this case: 

 According to policy; 

 For 890.221, this criterion may be considered satisfied provided there:

• is no evidence to the contrary (in which case, the applicant may be reassessed against the relevant criterion or criteria) and
• has been no significant delay between time of application and time of decision (in which case the applicant's circumstances may be confirmed).
• Source Pam 3: GenguideM paragraph 12.1 “Continued eligibility”

 Under policy, a significant delay is 18 months from the date the visa application was lodged. (GenguideM paragraph 12.1 “Continued eligibility”)

 There is no evidence to the contrary

This as I understand it , is a requirement that the applicant must show active management and involvement in the business prior to the decision and would be assessed on that basis; but if by reason of circumstances beyond our control the business is not operating, then the application can still be decided and the criterion met notwithstanding the fact that the main business is no longer operating.

And has been no significant delay between time of application and time of decision

Under policy, the delay between date of application and decision of delegate (or tribunal hearing) is a relevant factor and a significant delay is, under policy, 18 months.

I hope this information will inform colleagues who are assisting 890 visa applicants.

If you ever need a hand please ask;my advice is free.

Any question, any time!

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