1515947 (Migration)

This matter concerned an application for a Subclass 890 (Business Owner) visa. The applicant sought to include a shareholder loan of $104,000 in the calculation of the net assets of her main business in Australia for the purpose of satisfying clause 890.212 of the Migration Regulations 1994. The Tribunal had previously determined that this shareholder loan could not be included because it had been placed in a term deposit, rendering it an inactive investment rather than funds used to fund business activities.

The primary legal issue before the Tribunal was whether the wording of clause 890.212 required the shareholder loan to be actively used in the business, or if its mere existence as a net asset of the business was sufficient. The Tribunal considered a previous judicial review decision, *He v Minister for Immigration* [2015] FCCA 2915, which found that the clause did not necessitate the loan being "genuine" in the sense of being actively employed in business operations.

Applying this interpretation, the Tribunal recalculated the applicant's net assets. Including the shareholder loan, the net assets in the main business were $124,532 as at 31 December 2012 and $142,523 as at 31 December 2013. The Tribunal was satisfied that these figures met the requirement of having a net value of at least AUD100,000 throughout the 12 months preceding the application, and that there was no evidence to suggest the assets were not lawfully acquired. Consequently, the Tribunal found that the applicant met the criteria under clause 890.212. The Tribunal remitted the application for reconsideration with a direction that the applicant meets this specific criterion.