1503778 (Migration)

The Administrative Appeals Tribunal considered an application for a Business Skills (Residence) (Class DF) visa. The applicant sought to demonstrate that she met clause 890.212, which requires that the net value of assets in the applicant's main business or businesses in Australia be at least AUD100,000 throughout the 12 months preceding the application and that these assets have been lawfully acquired. The applicant identified Cam Art Pty Ltd, in which she held a 35% shareholding, as her main business.

The central legal issue was whether the applicant had satisfied the net asset requirement under clause 890.212, specifically concerning the valuation of her share in Cam Art Pty Ltd and a claimed loan to the business. The applicant contended that the delegate had impermissibly added a gloss to the legislative criteria by requiring funds to be directly used for business activities rather than being held in a business bank account, and that the Regulations did not prohibit funds from being paid into a personal account. The applicant relied on the decision in *He v Minister for Immigration & Anor* [2015] FCCA 2915, arguing that the policy applied by the delegate went beyond the plain wording of the clause.

The Tribunal found that the financial statements for Cam Art Pty Ltd showed net assets of $36,921 for the period ending 30 June 2013, and $56,436 for the period ending 30 June 2014. The applicant's share of these net assets was $12,922 and $19,752 respectively, both significantly below the $100,000 threshold. The Tribunal also considered the applicant's claimed loan of $193,560 to the business. However, as these funds were paid into her business partner's personal account, not the business's account, the Tribunal was not satisfied that they constituted a loan to the business for the purposes of the clause. The Tribunal affirmed the delegate's decision that the applicant did not meet clause 890.212.

Consequently, the Tribunal affirmed the decision not to grant the visa to the first and third-named applicants. The Tribunal also noted that it had no jurisdiction in respect of the second-named applicant.