1515947 (Migration)

[2016] AATA 4083

1515947 (Migration) [2016] AATA 4083 (6 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ping He
Mr Baizheng Liu

CASE NUMBER:  1515947

DIBP REFERENCE(S):  CLF2014/20843 CLF2014/20844

MEMBER:Glen Cranwell

DATE:6 July 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 890 (Business Owner) visa:

·cl.890.212 of Schedule 2 to the Regulations.

Statement made on 06 July 2016 at 2:18pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 July 2014 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).

2. The visa applicants applied for the visa on 10 February 2014. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not meet cl.890.212 of Schedule 2 to the Regulations.

3. The applicants were represented in relation to the review by their registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant must satisfy cl.890.212, which 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.

6. The issue in the present case is whether the applicant may include in the calculation of her net assets in her main business a shareholder loan of $104,000, which Mirror then placed in a term deposit.

7. The Tribunal as previously constituted applied the relevant policy advice in PAM3, finding that because Mirror put the shareholder loan in a term deposit, the loan monies were used as an inactive investment and not used to fund Mirror activities. Therefore, the applicant could not rely on his shareholder loan in the calculation of net assets for the purpose of satisfying 890.212.

8. Upon judicial review, the Federal Circuit Court in He v Minister for Immigration [2015] FCCA 2915 found the wording of cl.890.212 did not connote a necessity for the loan to be genuine. Accordingly, the Tribunal calculates the net value of the assets of the applicant and her spouse for the relevant 12 month period as follows:

   As at 31 Dec 12  as at 31 Dec 13

   Net assets in Mirror     $20,532  Net assets in Mirror     $38,523

   Shareholder Loan      $104,000  Shareholder Loan      $104,000

   Total net assets         $124,532  Total net assets         $142,523

9. Given the above, the Tribunal is satisfied that the assets of the applicant and/or her spouse, in the main business in Australia had a net value of at least AUD100,000 throughout the period of 12 months ending immediately before the application is made. There is no evidence before the Tribunal to suggest that the assets were not lawfully acquired.  The Tribunal accordingly finds that the applicant does meet cl.890.212.

   DECISION

10. The Tribunal remits the application for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 890 (Business Owner) visa:

    ·cl.890.212 of Schedule 2 to the Regulations.

    Glen Cranwell
    Member