1503778 (Migration) - [2016] AATA 4249

1503778 (Migration) [2016] AATA 4249 (10 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms QING YU
Mr GUIHONG XU
Miss YISHAN XU
CASE NUMBER:  1503778
DIBP REFERENCE(S):  CLF2014/119188 CLF2014/119190 CLF2014/119191
MEMBER:Mary-Ann Cooper
DATE:10 August 2016
PLACE OF DECISION:  Melbourne
DECISION:  The tribunal affirms the decision not to grant the first and third-named applicants a Business Skills (Residence) (Class DF) visa.
The tribunal has no jurisdiction in respect of the second-named review applicant.

Statement made on 10 August 2016 at 11:19am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 March 2015 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 1 September 2014. At the time the visa application was lodged, Class DF contained 4 subclasses: 890 (Business Owner); 891 (Investor); 892 (State/Territory Sponsored Business Owner) and 893 (State/Territory Sponsored Investor). In this case, claims have only been made in respect of Subclass 890. The applicants stated in the application (Form 47BU) that they were applying for Business Owner (Residence) visas.
The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet the requirements of cl.890.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the claimed loan amount had been deposited into the personal account of her business partner, the co-owner of the business and therefore the delegate was not satisfied that the loan was used to fund the activities of the business.
The applicant appeared before the tribunal on 13 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from her business partner.The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets cl.890.212, which relevantly provides:
890.212
The assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, in the main business or main businesses in Australia:
(a)have a net value of at least AUD100 000; and
(b)had a net value of at least AUD100 000 throughout the period of 12 months ending immediately before the application is made; and
(c)have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.
Therefore the tribunal has to be satisfied that the assets of the applicant and/or her spouse in the main business or main businesses in Australia had a net value of at least $100,000 throughout the period of 12 months ending immediately before the application was made.
As recorded in the delegate’s decision, a copy of which was supplied with the review application, the applicant had indicated her main business was Cam Art Pty Ltd (Cam Art), of which she is a 35% shareholder and Director. On the basis of the financial statement provided the business net assets for the period to 30 June 2013 were $36,921, the applicant’s share of which was $12,922. The business net assets for the period ended 30 June 2014 were $56,436 of which the applicant’s share was $19,752. The applicant had also claimed a loan to the business of $193,560 at both points in time. The delegate noted that she paid these funds into her business partner’s personal account, not into the business, and on that basis was not satisfied that they constituted a loan to the business. The delegate concluded the applicant did not meet cl.890.212 and the visa was refused.
Prior to the hearing the applicant’s representative provided a submission which, in summary, referred to the Department’s policy in this regard and noted, in particular, the policy intention that loans made to a business “should have been used to fund the activities of the business”, as opposed to “inactive investments held in a business bank account.” It was contended that the delegate’s application of this policy in the applicant’s case had put an “impermissible gloss” on the legislative criteria, which it claimed was “ultra vires.” The submission specifically referred to paragraph 31 of He v Minister for Immigration & Anor [2015] FCCA 2915 (He) in which the Court said:
To my mind, the policy does go beyond what is in the clause. There are no qualifications upon the term “assets”. There are no qualifications upon the term “in the main business”. While the policy may spell out how the Department wishes to interpret this clause, such is not reflected in the plain words of the clause itself.
It was further noted that the Regulations and policy are silent on funds paid into a personal account. It was submitted that the delegate’s findings were flawed on the basis that the Regulations do not prohibit payment into a personal account and that the Department’s policy goes beyond the words of statute.
Relying on the 2013/2014 financial statement for Cam Art (the business), ledger entries and correspondence from the business’ accountant, it was contended that these should be given significant weight because accountants have the requisite knowledge and expertise to determine the nature and character of these transactions and that such ‘expert evidence’ cannot be displaced without first establishing that there has been an error of the accounting formulation. It was further asserted the tribunal should rely on the AASB standards and common accounting practice. The accountant stated that it is common practice for funds to be paid into personal accounts and claimed that the applicant was “taking over” the loan of the former business partner. A purported confirmation of the withdrawal of $190,010 from the bank account of the applicant’s business partner was provided as evidence of her repayment of that loan to her previous business partner. The tribunal notes that the year of this transaction is not evident from the document, it does not contain the account holder/s name/s and there is no evidence of where or how the withdrawn amount was expended.
In the alternative, it was submitted that the nature of the transaction does not necessarily lead to a conclusion that the sum of $193,560.08 did not amount to a loan to the business. It is noted that the policy intent is that the applicant demonstrates a financial commitment to the business by contributing money sourced from his or her own funds and that financial statements are evidence of the assets and liabilities of a business. It was contended that a proper consideration of the nature and character of the transactions, on the basis of the Department’s policy and the accountant’s correspondence of 1 July 2016, the $193,560.08 should properly be characterised as a loan to the business.
The following relevant supporting documents were attached to the submission:
·     Financial statement for the business for the period ended 30 June 2014 which incorporated financial information for the period ended 30 June 2013 and indicated in each period a loan from the applicant to the business in the amount of $193,560.08.
·     Accountant’s letter dated 13 August 2014 in which he records a director’s ‘loan -investment’ of $193,560.08 from the applicant. Two ledger entries were attached in support of this claim.
·     Further accountant’s letter dated 1 July 2016 in which, in summary, he explains that the $193,560.08 director loan made by the applicant went directly to her business partner’s personal account for the purposes of reducing her director’s loan which had increased as a consequence of her pay out of the former shareholder/partner’s loan. That is, the amount paid by the applicant went to her business partner’s personal account because she had taken over the loan of the previous business partner to the business and this enabled her to reduce her loan to the business. ASIC Form 484’s advising of the changes to company shares and ownership were also provided.
·     One page of a bank statement, purportedly of the applicant’s business partner, showing that on 21 March (year unknown) an amount of $190,010.00 was withdrawn from the account.
At the hearing the applicant told the tribunal that she had become involved in the business through her husband and his friend. When asked about her contributions to the business, she referred to her payments of $175,000 and $18,560.08 made to the business in June 2012 and May 2013. She confirmed that the bank statements she provided demonstrated her withdrawal of these amounts and the personal bank statements of her business partner reflected that they had been paid into that personal account. When asked why she made these payments, she told the tribunal that she paid them according to her business contract and what she had been told by the accountant. She confirmed that the business contract to which she referred was the Sale of Shares Agreement she had provided to the Department and which was on its file[1]. She confirmed that the $175,000 she had paid to her business partner was paid under this agreement. When asked about the additional $18,560.08, she said she had paid it because the accountant had told her that she had not paid enough and needed to pay more. The tribunal observed that in her statement to the Department she had said that she had paid her business partner $193,560 on 1 July 2012 and asked if this was a separate amount. She acknowledged that this was a mistake and that it referred to the separate amounts she paid in June 2012 of $175,000 and $18,560.08 paid in May 2013. She said she had made no other payments to the business apart from these two payments. The tribunal asked why she had made these payments to her business partner’s account and not to the business account. She responded that this was what her “business contract” had required. She said she was not aware what happened to the money after she paid it to her business partner. The tribunal sought to explain to her the difference between a payment for shares and a director loan to a business. It observed that on the evidence it appeared she had not made a loan to the business but had instead purchased equity in the business. It noted that although the financial statements for the business indicated she had made a loan to it of $193,560.08, the accountant who had compiled the statement gave no level of assurance, had undertaken no validation or verification and indicated he had relied solely on the advice of the directors as to the nature of the transactions. On this basis the tribunal advised that it attributed little weight to the statements and the other communications of the accountant regarding the purported loans, given the other evidence before it. The applicant said she did not wish to add anything further and the tribunal proceeded to take evidence from her witness, her business partner.
[1] CLF2014/119191 at f20
Her business partner said, somewhat inconsistently with the evidence of the applicant, that they had met through common friend. She said her previous business partner had returned to China and the applicant had expressed interest in becoming part of the business. After some discussion she claimed that the applicant agreed to buy shares in the business and paid over $190,000 in the middle of 2012 for those shares. She confirmed the Sale of Shares Agreement on the Department’s file reflected their agreement. The tribunal observed that the sale amount was $175,000 and asked why she had said she had been paid over $190,000. She responded that her accountant had adjusted the stock and told her that the applicant should pay extra for it, which she had done. She confirmed that the deposits into her account as reflected in the bank statements provided, of $175,000 and $18,560.08, were the applicant’s payments to her for her shares in the business. She confirmed that the applicant had made no further financial contributions to the business. The tribunal asked her if this money had been transferred to the business’ account. She responded that she had transferred the money into the loan account of another of her businesses, not Cam Art. She said she had no loan agreement or other contract with the applicant. The tribunal observed that the payment by the applicant to her was paid in consideration for an allocation of shares in the business, not a loan to the business. She agreed and said that this was her understanding.
The applicant’s representative sought further time to supply additional information in support of the applicant’s claims. She asserted that they had considered the accountant who provided the information was in the best position to do so but given the tribunal’s comments regarding the weight it attributed to the accountant’s documents, they may seek to obtain a more forensic report. The tribunal noted that both the applicant and her business partner had acknowledged that she had made no other financial contributions to the business and had given evidence that the purpose of the amounts transferred was for the payment of her shares in the business. In addition it was noted that the applicant had made the application on 1 September 2014 and had ample time to gather relevant evidence in support of her claims. It allowed the applicant a further few days to provide any further supporting evidence.
Following the hearing the applicant provided correspondence from a registered company auditor and from the business’ accountant, as well as a financial report for the business for the period ended 30 June 2012.
The correspondence from the auditor indicated he had examined the signed financial reports for the business from June 2011 to June 2014, the Share Sale Agreement dated 28 June 2012, the company’s share register, ASIC Form 484s lodged in relation to changes in the business’ share capital between January and June 2012 and correspondence from the business’ accountant. He acknowledged that the financial statements have not been audited and include the accountant’s disclaimer, but it is stated that they are appropriate for accounting and taxation law reporting. Facts are asserted as follows:
·     Referring to the financial statements, share register and ASIC filings all share transfers were transacted at $1.00 per share.
·     On 31 January 2012 the applicant’s business partner acquired 5 shares from the former shareholder for $5. It is asserted that the consideration paid was $5 for the 5 shares and a $190,000 director loan repayment. The net assets of the company at that time were negative.
·     On 27 June 2012 the applicant’s business partner allotted a further 90 shares for $1 per share.
·     On 28 June 2012 the applicant and her business partner signed a share sale agreement whereby the applicant bought 35 shares from her business partner for $175,000.
·     The business’ financial statement to 30 June 2012 showed that the loan from the former business partner had been repaid and a new director loan of $175,000 had been received from the applicant.
·     The company share register and documents filed at ASIC show that, on 1 July 2012, 35 shares were transferred to the applicant from her business partner for $35 consideration.
In summary, the auditor observed that the Share Sale Agreement contained inconsistencies in terms of the applicant’s shareholding at the time and that it was “difficult to imagine any person paying $175,000 for a 35% ownership interest” where the company’s net assets at the time of sale were “less than $20,000”. Further, that the accountant had confirmed that the negotiations between the parties had excluded the director loan accounts and that the company’s financial statements for subsequent periods ‘clearly disclose director loans owing to the applicant in the amount claimed ($193,560)’. The auditor concluded that the Share Sale Agreement did not reflect the parties intentions and that the net value of the applicant’s interests in the business at 30 June 2014 was the sum of the loans she had made ($193,560) and her 35% shareholding ($19,752), equalling $213,312.
In the context of the facts’ asserted by the auditor, the tribunal notes that the ASIC records demonstrate that on 31 January 2012 the applicant’s business partner acquired 5 shares from her former business partner for $5. Other than the 2012 financial statement provided, which indicates that the former business partner had an outstanding director loan of $190,000 at 30 June 2011 and a $0 director loan at 30 June 2012, there is nothing before the tribunal which substantiates either a loan from her or a repayment to her of this purported loan. As noted above (paragraph 14), one page from a bank statement was provided showing a withdrawal of $190,010 from an unknown account on 21 March of an unknown year. In addition, the 2012 financial statement indicates that no level of assurance is provided by the accountant and it is not signed by the directors or the auditor. On this basis, while the tribunal accepts that the later-provided financial statement to 30 June 2012 reflects that the recorded director loan from the former business partner has been reduced to $0, it does not consider that the evidence before it supports the facts asserted by the auditor as to the character of the $190,000 or its purported repayment to the former business partner.
The main business
As confirmed by the applicant at the hearing, for the purposes of this application the applicant has nominated one main business: Cam Art Pty Ltd (‘the business”). The Tribunal accepts that the Australian Securities and Investment Commission extract submitted with the application demonstrates that, throughout the relevant period, the applicant was a 35% shareholder in the business.
The other oral evidence of the applicant is discussed further below.
Relevant 12 month period
As the visa application was made on 1 September 2014, the relevant 12 month period for the purposes of cl.890.212(b), adopting the Department’s policy in this regard, and consistently with the delegate’s decision, is from 1 July 2013 until 30 June 2014 (the relevant period). The Tribunal accepts from the totality of evidence that the applicant’s net business assets at these times provide a reliable indication of her business asset position over the relevant 12 month period and the applicant did not dispute the assessment being based on this period.
Net value of assets in the main business: cl.890.212
The delegate was not satisfied that the value of the applicant’s net assets in the business in the relevant period were at least $AUD100,000. This was largely because she did not accept that the payments of $18,560.08 and $175,000, which were paid into her business partner’s personal account, were used to fund the activities of the business.
The tribunal was provided with an unaudited financial statement showing the business’ net assets and director loans for the financial years ending 30 June 2013 and 30 June 2014.
A later, similarly unaudited, financial statement has been provided for the year ended 30 June 2012 along with an auditor’s report concluding that the Share Sale Agreement does not reflect the intention of the parties and that the net value of the applicant’s interest in the business at 30 June 2014 was $213,312.
In this context the tribunal has had regard to relevant Departmental policy which provides as follows:
Net business assets
The net value of the assets of a business is the amount attributable to the business after deducting financial claims upon the business by third parties (that is, total assets - total liabilities = net asset/liability).

….

As a general rule, to calculate the net value of an applicant’s assets in a business in any given year, it is necessary to:
To determine the net value of the assets of an applicant, and/or the applicant’s spouse or de facto partner in a business:
add
deduct

establish the net value of the assets of the business (or owners’/shareholders’ equity or funds) then

calculate the share/portion of those assets attributable to the applicant based on ownership interest and personal investment in the business.

calculate the proportionate share of the assets held by the applicant and/or spouse or de facto partner, then:

the balance of any loans advanced to the business by the applicant (if the directors or major shareholders have made any loans to the company, these should be itemised in the financial statements or in the notes to the accounts) and

the balance of any loans the business may have advanced to the applicant and

the value of any other loans the applicant may have taken out to finance their investment in the business not based on personal assets pledged as collateral - refer to Loans - Source of funds and collateral. [2]
[2] PAM3 - MIGRATION REGULATIONS - OTHER > PAM - GenGuideM - Business visas - Visa application and related procedures- Net business assets

The tribunal acknowledges that it is not bound by policy but considers there is no reason to depart from it in the present circumstances and, as confirmed at the hearing, the applicant does not dispute this method of calculation of her net assets.
In this context, the tribunal has considered the submission that the comments in He apply to the determination of this application, but it is not satisfied that it relevantly applies. The central issue in that case was the genuineness of the loan, not whether it had in fact been made. In that case there was evidence of a loan agreement and a payment made to the business account of the company. The issue was the fact that the money remained in the business’ deposit account and was not used to fund the activities of the business. The tribunal affirmed the Department’s decision, applying the policy which required that the loan had been used to fund the activities of the business. The court found, reluctantly, it said, that the policy went beyond the legislation because there was no qualification in it of the words “assets” or “in the main business” such that the loan was required to be ‘genuine’ and, even though it accepted that the loan was “a device created solely to subvert the spirit of cl.890.212”, on this basis the court remitted the matter. In this application the tribunal is concerned with whether in fact the applicant has made a loan to the business that, on the basis of the policy, can be added back to the value of the applicant’s net assets so as to enable the applicant to meet the required legislative threshold. In this context, the tribunal considers this application is in large part distinguishable from He because in that case there was no dispute that the loan had been made, but only whether the loan was genuine insofar as it had been used by the business to fund its activity. The policy considered in this application is not concerned with whether the loan funds have been used by the business but whether in fact a loan has been made and therefore appropriately regarded as an asset of the applicant’s in the main business.
There is little by way of objective supporting evidence before the tribunal demonstrating that the applicant either paid the claimed loan into the business, or that the money paid was in fact a loan to the business.
The evidence before the tribunal is summarised as follows:
·     On 27 June 2012 the applicant withdrew $175,000 from her personal bank account.
·     On 28 June 2012 the applicant entered into and executed a “Sales of Shares Agreement” with her business partner by which she agreed to pay $175000 for her shares in the business. The agreement relevantly states as follows:
o   E) Kui [the applicant’s business partner] has agreed to sell to Qing [the applicant] and Qing has agreed to purchase from Kui a specific percentage of shares in the Company for a lump sum consideration and upon and subject to the terms and conditions of this Agreement
o   F) Qing is an overseas investor from the Republic of China who wants to make a capital investment into the Company and assist in the development and management of the business …
o   2.3. Contemporaneous with the sale and transfer of shares Qing shall make payment to Kui a lump sum amount (hereinafter referred to as “the share price”) on the settlement date the details of which are stated in Item 3 of the Schedule (this payment of the share price on the settlement date shall hereinafter be referred to as “the settlement”)
o   Item 3 of the Schedule lists the share price as AUD$175,000.00 to be paid via bank cheque payable to “Kui Zhang”
·     On 28 June 2012 a $175,000 cheque was deposited into the personal joint bank account of her business partner and her husband.
·     On 13 May 2013 the applicant withdrew $18,560.08 from her bank account.
·     On 15 May 2013 $18,560.08 was deposited by cheque into the joint bank account of the applicant’s business partner and her husband.
·     Extracts purportedly from the applicant’s main business ledger accounts record a “loan-investment” by the applicant in the business for the amounts noted above.
·     Various correspondence from the business’s accountant purporting to indicate and confirm that the applicant’s loan in the company at the relevant points in time was $193,560.08
·     Statement from an auditor which relevantly asserted that the documents he had examined were satisfactory for accounting and taxation purposes, that the share sale agreement did not accurately reflect the intentions of the parties and the $193,560 paid by the applicant is a director loan.
·     2014 financial statement for the business recording that, for the financial year ending 30 June 2013, the business’ net assets were $36,921.69 and, at 30 June 2014, were $56,436.76. In addition, at both dates, a loan from the applicant to the business is recorded as $193,560.08. The accompanying accountant’s compilation report states that he has relied solely on the advice of the directors and no level of assurance is provided.
Consistently with Departmental policy, if these claimed loan amounts are added back for the relevant periods, the net value of the applicant’s assets in the business at 30 June 2013 would be $206,482, and at 30 June 2014, $213,312.
The tribunal has carefully considered all the material before it but notes that there is little reliable evidence supporting he applicant’s claim that she has, in fact, loaned the amounts claimed to the business.
The tribunal has had regard to the 2014 financial statement provided and the accompanying accountant's compilation report. That report states the statement was prepared solely on the basis of information provided by the directors and specifies that no verification or validation was undertaken and no level of assurance is provided. In this context, in the absence of a documented loan agreement or evidence of a deposit of funds by the applicant or her partner into the business’s bank account, and in view of a share sale agreement that records the payment of the $175,000 as consideration for the applicant’s shares in the business, the tribunal places little weight on these financial statements as evidence supporting the applicant’s claims she made a loan to the business. In addition the accountant has supplied extracts for the ledger account that purport to show two ‘loan -investments’ by the applicant of $175,000 on 27 June 2012 and $18,560.08 on 13 May 2013. Given the extracts appear simply as two line items on an otherwise blank page, the tribunal has reservations as to their reliability and also attaches little weight to them as evidence of loans to the business. This reservation is reinforced by the fact that the ‘loan-investment’ of $175,000 on 27 June 2012 coincides with the applicant’s purchase of shares in the business, paid into her business partner’s account, and no other contemporaneous deposit or payment to the company of $175,000 is claimed or is otherwise evident. At the hearing both the applicant and her business partner acknowledged that there had been no other payments from her to the business. In addition, the applicant and her business partner told the tribunal at the hearing that the investment of $18,560.08 in May 2013 was because of an adjustment to the share value advised by the accountant (paragraphs 15-16).
Furthermore, in relation to the auditor’s report, and as noted above, he also acknowledged that the financial statements provided were based solely on the directors’ advice to the accountant, no audit or verification was undertaken and no assurance was expressed. The auditor commented that he has sighted signed statements for the period 2011 to 2014 however the 2011/2012 statement provided to the tribunal contained no signatures. Given the other, contradictory, evidence before the tribunal, it places little weight on these statements. That is, other than these statements, and supporting correspondence from the applicant’s accountant based on this information, there is little before the tribunal which supports a claim that $175,000 and $18,560.08 was ever loaned to the business by the applicant. It is claimed that this money, deposited into her business partner’s personal bank account, correspondingly reduced her partner’s loan to the business, as indicated by the later-produced unsigned 2012 financial statement showing a reduction in her business partner’s loan as at 30 June 2012. This however is contradicted by the Share Sale Agreement specifying the “share price” of $175,000 and her business partner’s oral evidence that she used the money paid by the applicant to loan to another of her companies. The tribunal acknowledges the auditor’s observations that the payment of such a price was inconsistent with the value of the shares and also inconsistent with the ASIC records, however this does not of itself avoid the fact or effect of the executed share sale agreement. There is nothing before the tribunal to indicate that the parties have resiled from this agreement, other than the auditor’s observation that it does not reflect the intention of the parties, which itself contradicts their oral evidence to the tribunal. On this basis the tribunal does not accept as reliable the auditor’s conclusion as to the net value of the applicant’s interest in the business at 30 June 2014. Even acknowledging that English is not the first language of the applicant and her business partner, no issue was raised at the hearing as to the interpreter’s competence. In addition, the applicant is seeking a permanent visa on the basis of her operation of a business in an English-speaking environment. It is her responsibility to ensure she is aware of the legal and regulatory environment in which that business operates and the nature of the transactions in which she is engaged. While the tribunal accepts that the applicant did not appear to be highly sophisticated in this regard, this does not form a basis on which to ‘go behind’ her Share Sale Agreement and characterise it as anything other than what it purports to be, particularly in light of the oral evidence which supports it.
Both the applicant and her partner also acknowledged that she has contributed no further funds to the business. The tribunal therefore gives greater weight to the documents before it and the direct oral evidence of the applicant and her business business partner than to the assumptions made and inferences drawn by the auditor. While the tribunal accepts the auditor’s assertion that the financial statements provided in respect of the business are sufficient for accounting and taxation law purposes, its concern is whether or not, as a matter of fact, the applicant has made a loan to the business. On all the evidence before it the tribunal is not satisfied this is the case.
As previously noted, there is no loan documentation or agreement and there is no dispute that the claimed loan monies of $175,000 and the $18,560.08 were paid into the personal account of the applicant’s business partner. In fact no business bank accounts or statements have been provided to the tribunal indicating or demonstrating any deposits or transfers of funds from the applicant or repayments of loans to or from her business partner or others. On the contrary, there is strong objective evidence, by way of an executed share sale agreement, indicating that the $175,000 paid by the applicant into her business partners’ account was consideration for her shares in the business, notwithstanding the ASIC records which demonstrate a rather different picture of the share dealings in the company. Furthermore, her business partner confirmed at the hearing that the two amounts were payments for shares in the business. It was also her oral evidence that this money was loaned to another of her businesses.
The tribunal finds, on the basis of the oral evidence and material before it, that the applicant’s withdrawal of $175,000 and its payment into the personal account of her business partner was for the purpose of fulfilling the terms of their Share Sale Agreement. That is, it was consideration for her shares in the company and not a loan to the business. It further finds, on the basis of the oral evidence, that the $18,560.08 from the applicant which was later deposited into her business partner’s account, was a further payment for those shares.
On balance therefore, having carefully considered the nature and character of the transactions, the tribunal is not satisfied that the amounts paid by the applicant into her business partner’s account can reliably be characterised or regarded as loans by her to the business at the relevant times. It follows that it finds the net value of the assets owned by the applicant, as a 35% shareholder in the main business, at 30 June 2013 was $12,922 and at 30 June 2014 was $19,752.
Having regard to the above findings, the Tribunal is not satisfied that the assets owned by the applicant in the main business had at the time of application, and throughout the preceding 12 months, a net value of at least $100,000 and, accordingly, the applicant does not satisfy the requirements of cl.890.212(a) and (b).
It is therefore unnecessary to consider whether these assets have been lawfully acquired by the applicant: cl.890.212(c).
CONCLUSION
For the above reasons, it follows that the applicant does not meet cl.890.212.
It has not been submitted, and there is no material otherwise known to the Tribunal, which would support a conclusion that the applicant meets requirements prescribed at Parts 891, 892 or 893 of Schedule 2 to the Regulations. The Tribunal is therefore not satisfied that she meets the prescribed criteria for any of the visas in Class DF.
Secondary applicants
The delegate also refused visas to the secondary applicants, the partner and child of the visa applicant and who are included in her application.
In relation to the second-named applicant, the applicant’s partner, and as discussed with the applicant at the hearing, the tribunal finds that it does have jurisdiction in respect of him. This is because he was not in the migration zone either at the date of visa application, decision or review application. In those circumstances the application does not meet the requirements of s.347(3A) and the tribunal therefore has no jurisdiction to make a decision in respect of him.
There is no claim or any evidence before the Tribunal that the remaining secondary applicant, her child, meets the primary criteria for the grant of the visa. In addition, to meet clause 890.311, the secondary applicant must be a member of the family unit of a person who, who satisfies the primary criteria in Subdivision 890.21. As the applicant does not satisfy the primary criteria for a subclass 890 visa, or any other subclass, the Tribunal finds that the secondary applicant also does not satisfy clause 890.311 and, therefore, the criteria for a subclass 890 visa, or any other subclass.
DECISION
The tribunal affirms the decision not to grant the first and third-named applicants a Business Skills (Residence) (Class DF) visa.
The tribunal has no jurisdiction in respect of the second-named applicant.
Mary-Ann Cooper
Member