1913777 (Migration)

[2022] AATA 3954

1913777 (Migration) [2022] AATA 3954 (17 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Shijing Zhang (MARN: 0301371)

CASE NUMBER:  1913777

MEMBER:Alison Mercer

DATE:17 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions to refuse to grant the applicants Class EB subclass 188 (Business Innovation and Investment – Provisional) visas.

Statement made on 17 October 2022 at 6:20pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment – Provisional) – investor stream – secondary applicant members of family unit – primary applicant not in migration zone at relevant times and visa refused with no right of merits review – application for judicial review dismissed – primary applicant’s decision reviewable on issue of business and personal assets, but not on issue of not being in migration zone – applicants’ visa and review applications separate from primary applicant’s – affected by primary applicant’s decision but not ‘subject’ of it – first applicant wife not invited by minister to apply for visa so unnecessary to consider whether she can satisfy primary criteria – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65, 46, 338(2), 347(2)(a), (3), 349(1), 351, 359A, 363(1)(b)

Migration Regulations 1994 (Cth), r 1.12, Schedule 2, cls 188.241(1), 188.245, 188.311

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 24 May 2019 to refuse to grant the applicants Business Skills (Provisional) subclass 188 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 27 October 2017. The delegate refused to grant the visas on the basis that [the primary visa applicant] had been refused a subclass 188 visa on the basis that he did not meet the primary visa criteria, and therefore the second, third and fourth named visas (his wife and children) could not be granted subclass 188 visas either, as they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 188 visa, and there was no evidence that they met the primary visa criteria in their own right.

3. The Tribunal received a review application from the applicants on 31 May 2019, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Eric Ip, as their representative and authorised recipient for correspondence. They subsequently appointed another agent, Mr Clive Cai, to these roles, and finally, they appointed Mr Shijing Zhang to these roles.

4. The matter was constituted to a Tribunal Member on 10 July 2019

5. On 12 July 2019, the Tribunal wrote to the applicants via their agent to invite them, pursuant to s.359A of the Act, to comment on or respond to potentially adverse information about their case held by the Tribunal. In particular, the Tribunal advised the applicants that:

   ·on 27 October 2017, they made a combined application with [the primary applicant] for subclass 188 visas, as members of his family unit;

   ·on 24 May 2019, [the primary visa applicant]’s visa was refused because he did not meet the primary criteria and he was notified on the same date;

   ·Department records indicated that on the date the visa applications were made, the date the visas were refused and the date that their review applications were made, [the primary visa applicant] was offshore. In his refusal notification dated 24 May 2019, he was informed that he had no right of merits review for the decision (because he was not in the migration zone at the relevant time or times);

   ·s.347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act. The term ‘migration zone’ is defined in s.5(1) of the Act and generally means the Australian States and Territories; and

   ·on 24 May 2019, the applicants were notified that their visas had been refused, related to the combined application they had made with [the primary visa applicant], because they did not meet the secondary criteria. To meet the secondary criteria (cl.188.311), the applicants had to be members of the family unit of a person who holds a subclass 188 visa granted on the basis of them satisfying the primary criteria. [The primary applicant] was not granted a subclass 188 visa, nor was there a review application pending for him.

6. The Tribunal advised the applicants that this information was relevant to the review because it appeared that they could not meet the criteria for the grant of the visa because they did not meet cl.188.311 of Schedule 2 to the Regulations because it appeared that they were not members of the family unit of someone who held a subclass 188 visa granted on the basis they met the primary criteria, and subject to their comment or response, this would be a reason or a part of the reason, for affirming the decisions under review.

7. The Tribunal requested that the applicants respond or provide comments by 26 July 2019, and advised that if they did not do so (or did not seek an extension of time to do so) by the due date, they would lose their entitlement to a hearing, and the Tribunal might proceed to a decision without taking further steps to obtain their views.

8. On 25 July 2019, the applicants requested an extension of time to respond, and this was granted to 16 August 2019. A further extension was granted on 15 August 2019 to 23 August 2019.

9. On 23 August 2019, the applicants’ agent made the following response on their behalf:

   ·the contents of the Tribunal’s letter were acknowledged, and it was conceded that [the primary applicant], had not applied for review of the decision to refuse him a subclass 188 visa;

   ·however, on 23 August 2019, [the primary applicant] had applied to the Federal Circuit of Court of Australia for judicial review of the decision to refuse him the subclass 188 visa, and the Tribunal was requested to adjourn the applicants’ review application pursuant to s.363(1)(b) of the Act until [the primary applicant]’s judicial review application was determined;

   ·this request was reasonable given that the applicants had resided in Australia for approximately 8 years, and also that [the primary applicant] had been caught outside Australia on the relevant dates due to COVID19 travel restrictions. He had previously tried unsuccessfully to get permission to return to Australia on 13 March 2019 and 12 April 2019 but had his visitor visas refused.

10. On 2 September 2019, the Tribunal wrote to the applicants to invite them to a hearing.

11. On 23 September 2019, the applicants sought an adjournment, advising that a hearing date for the Federal Circuit Court of Australia had been set for 29 January 2020.

12. On 24 September 2019, the matter was deconstituted from the original Tribunal Member to await the outcome of the Federal Circuit Court of Australia, and the hearing was cancelled.

13. On 11 August 2020, the applicants’ agent advised the Tribunal that the Federal Circuit Court of Australia had dismissed [the primary applicant]’s application for judicial review on [Date], but that the secondary applicants wished to proceed with their review application with the Tribunal as they wished to argue that the Tribunal did in fact have jurisdiction to review the refusal of the subclass 188 visa to [the primary applicant]. The agent advised that if those submissions were not accepted, the applicants intended to seek Ministerial intervention pursuant to s.351 of the Act.

14. On 18 August 2022, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing by videoconference on 6 September 2022. They were requested to provide any additional documents and/or submissions in support of their case prior to the hearing.

15. On 2 September 2022, the Tribunal received the following submissions from the applicants’ agent:

    …

    Background

    1.In October 2017, [the primary applicant], his wife [the first applicant] and their two children applied for subclass 188 Business Innovation and Investment visas. [The primary applicant] was the primary applicant. [The first applicant] and the children were members of the family unit.

    2.On 24 May 2019, a delegate in the Department of Home Affairs (“the Department”) made a decision refusing to grant [the primary applicant] a subclass 188 visa as the primary applicant on the ground that clause 188.245 in Schedule 2 of the Regulations is not satisfied. (“the [primary applicant’s] Decision”) This clause provides that:

    188.245

    For the 2 fiscal years immediately before the time of invitation to apply for the visa, the business and personal 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, had a net value of at least AUD 2 250 000.

    3.On the same day, a decision refusing to grant [the first applicant] and their two children a subclass 188 visa was made on the ground that clause 188.311 in Schedule 2 of the Regulations is not satisfied. (“The [first applicant’s] Decision”) This clause provides that:

    188.311

    The applicant is a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa (the primary applicant).

    4.On 24 May 2019, [the first applicant] and their children lodged an application for review of the [the first applicant’s] decision to the Administrative Appeals Tribunal (“the AAT”).

    5.On 23 August 2019, [the primary applicant] lodged a judicial review application with the Federal Circuit Court.

    6.On [Date], [a Judge] in the Federal Circuit Court handed down a decision dismissing [the primary applicant]’s application.

    The Reason of the [primary applicant]’s Decision

    7.The delegate stated that [the primary applicant] had been invited to apply for the visa in October 2017, and that clause 188.245 required, for the two fiscal years immediately prior to that time, the “business and personal assets” of [the primary applicant] “had a net value of at least AUD$2,250,000”. The delegate then stated that, according to the “Statement of Assets and Liabilities Position” provided by [the primary applicant] for 31 December 2015 and 31 December 2016, the net asset position declared by him was:

    a.       December 2015:

    i.stock and cash with [Securities] in China – RMB 9.41 million (AUD 1.989 million); and

    ii.stock and cash with the [Bank in Hong Kong] – HKD 14.6 million (AUD 2.588 million).

    iii.Total net asset value of AUD 4.58m (RMB 9.41m @4.73 and HKD 14.6m @5.64).

    b.       December 2016:

    i.stock and cash with [Securities] in China – RMB 9.19 million (AUD 1.830 million); and

    ii.Stock and cash with the [Bank] – HKD 16.8 million (AUD 3 million).

    iii.Total net asset value of AUD 4.83m (RMB 9.19m @5.02 and HKD 16.8m @5.60).

    8.The delegate observed that [the primary applicant] had provided “inconsistent” accounts of the source of the assets he held with the [Bank], which “casts doubts on the true origin of the funds transferred to Hong Kong”. The delegate then stated:

    … in addition, there is no evidence made available to link the funds held in Hong Kong to the declared sources in China despite our specific request for such. Even if I were to accept your claim of having derived substantial gains from the disposal of restricted stocks in China, the trail of funds transfer from China to Hong Kong has not been satisfactorily evidenced.

    9.The delegate further stated that she was “unable to ascertain whether the funds held in Hong Kong were ultimately derived from the claimed source”. The delegate “excluded” those funds (held with the [Bank]) from the calculation of the value of [the primary applicant]’s assets for the purpose of clause 188.245. With those assets excluded, the other assets declared by [the primary applicant] (ie. those with [Securities]) did not, in 2015 or 2016, amount to AUD 2.25 million. The delegate was thus not satisfied that [the primary applicant] met clause 188.245 and refused to grant the visa.

    The AAT’s Power to Review

    10.Pursuant to s 46 of the Migration Act 1958 (Cth) (“the Act”), reg 2.07 of the Migration Regulations 1994 (Cth) (“the Regulations”), and clause 3(d) under the heading “1202B Business Skills (Provisional) (Class EB)” in Schedule 1 of the Regulations, the visa application by [the first applicant] and the two children was “made at the same time as and combined with” the visa application by the primary applicant [the primary applicant].

    11.Pursuant to s 338(2) of the Act, the decision of the delegate dated 24 May 2019 refusing to grant [the primary applicant] a subclass 188 visa (“the [primary applicant’s] Decision”) is an MRT-reviewable decision.

    12.Section 349(1) of the Act empowers the AAT for the purpose of the review of an MRT-reviewable decision to “exercise all the powers and discretions that are conferred by this Act on the person who made the decision”.

    13.As stated in the Decision Record for [the first applicant] and their two children’s application, a criterion for the grant of a visa to [the first applicant] and the two children, stated in clause 188.311 of Schedule 2, is that “the applicant is a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa”.

    14.Although s 347(3) of the Act barred [the primary applicant] from applying to the AAT for review of the [primary applicant’s] Decision, [the first applicant] will seek to persuade the AAT that during the AAT Review the AAT has the power to review the [primary applicant’s] Decision. This result is achieved in one of two ways as follows:

    a.Pursuant to s 349(1) of the Act, the “powers ... conferred by this Act on the person who made the decision” include the power to review the [primary applicant’s] Decision.

    b.Pursuant to s 347(2)(a) of the Act, [the first applicant] and the children are non-citizens who are “the subject of the [primary applicant’s] decision.”

    Further Support Evidence

    15.Annexed and marked “XR-1” is a copy of the affidavit of [the primary applicant] dated 28 May 2020. In the affidavit, [the primary applicant] explained the source of the funds in his bank account with the [Bank in Hong Kong].

    16.Annexed and marked “XR-2” is a copy of the consolidated statement of [the primary applicant]’s bank statement with the [Bank in Hong Kong from January 2020 to July 2022 as proof that [the primary applicant] is still holding such an amount of cash in that bank account.

    17.Annexed and marked “XR-3” is a copy of the Certificate of Deposit Balance with the [Bank in China]. It shows that [the primary applicant] had a deposit balance of RMB 2m with the [Bank in China] from 9 December 2013.

    18.Annexed and marked “XR-4” is a copy of the transaction history of [the primary applicant]’s bank account with the [Bank in China] from 9 December 2013. The RMB 2m was kept rolling in a half-year term deposit. The deposit balance in December 2015 was RMB 2,118,492.17, which was around AUD 447,884.18. The deposit balance in December 2016 was RMB 2,154,445.95, which was around AUD 429,172.50.

    19.Annexed and marked “XR-5” is a copy of tax documents for selling shares in 2013, and this is the source of the RMB 2m mentioned in the above XR-4. This RMB 2m is part of the sale proceeds in 2013.

    20.If the AAT is not satisfied with the explanation of the source of the funds in [the primary applicant]’s bank account with the [Bank in Hong Kong], we would like to ask the AAT to consider the RMB 2m. With this RMB 2m, the net asset position of [the primary applicant] was:

    a.       December 2015:

    i.stock and cash with [Securities] in China – RMB 9.41 million (AUD 1.989 million); and

    ii.cash with the [Bank in in China] – RMB 2.11 million (AUD 0.44 million).

    iii.       Total net asset value of AUD 2.43m (RMB 11.52m @4.73).

    b.       December 2016:

    i.stock and cash with [Securities] in China – RMB 9.19 million (AUD 1.830 million); and

    ii.cash with the [Bank in in China] – RMB 2.15 million (AUD 0.42 million).

    iii.       Total net asset value of AUD 2.25m (RMB 11.34m @5.02).

    If the AAT is satisfied with the requirements of clause 188.245 but not satisfied that the AAT has the power to review the [primary applicant’s] Decision, it may follow that the AAT must affirm the decisions under review for the reason explained by the delegate. However, [the first applicant] and the children may then apply to the Minister under s 351 of the Act to substitute a more favourable decision for the decision of the AAT. This is an alternative reason that [the first applicant] wishes to proceed with the AAT Review.

    …

16. The supporting documents are as described above in the submission.

17. The applicants appeared before the Tribunal on 6 September 2022 by videoconference to give evidence and present arguments. The Tribunal also received oral evidence from [the primary applicant] and oral submissions from the applicants’ representative, both of whom also participated by videoconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

18. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

19. At the outset, the Tribunal advised the applicants and [the primary applicant] that it had read the submissions from their agent as to why it should be able to consider [the primary applicant]’s visa refusal and consider the additional information provided as to why he did in fact meet cl.188.245, but that it disagreed that it had the legal power to do so. The Tribunal explained that its legal power to review decisions came from the Migration Act and Regulations and it noted that the decision to refuse [the primary applicant] a subclass 188 visa (while a ‘reviewable decision’ under s.338(2) of the Act) was not reviewable in this case as [the primary applicant] was unable to satisfy the requirements of s.347(3) which provided that a review application in respect of a s.338(2)-reviewable decision could only be made if an applicant was in the migration zone (Australia) at the time that the review application was made, which [the primary applicant] was not (regardless of the reasons for his absence). The Tribunal further noted that [the primary applicant] had now exhausted his review options as he did not have standing to have the subclass 188 visa refusal in respect of him reviewed by the Tribunal, and his judicial review application against the primary decision had been unsuccessful.

1. The Tribunal acknowledged that it did have jurisdiction to review the Department’s decisions to refuse to grant the first, second and third named applicants subclass 188 visas, but noted that these were separate applications (both for visas and review) from [the primary applicant]’s applications (even though the applicants were all members of the family unit). Therefore, the Tribunal did not accept that the first, second and third named applicants were the ‘subject’ of the [primary applicant’s] decision, as argued by their representative. However, the Tribunal acknowledged that their ability to meet the subclass 188 visa was affected by the fact that [the primary applicant] had been refused a subclass 188 visa and was unable to have that decision reviewed, as it meant that they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 188 visa, and there was no evidence that they met the primary visa criteria in their own right.

2. After some discussion with the applicants’ representative, the Tribunal agreed to defer its decision to enable the applicants to give instructions as to whether they wished to argue that the first named applicant was able to meet the primary criteria for a subclass 188 visa in her own right (the Tribunal noted that she had to meet all of the subclass 188 criteria, not only cl.188.245) and/or whether they intended to seek Ministerial intervention pursuant to s.351 of the Act in the event of an unsuccessful review application. The Tribunal noted that it did not anticipate holding a second hearing but would rely on their post hearing written submissions.

3. On 4 October 2022, the Tribunal received the following submissions from the applicants’ agent:

   …

   1. We are invited to make this submission to show our belief that [the first applicant] satisfies all of the primary criteria for a subclass 188 visa in the Investor stream, as set out in Parts 188.21 and 188.24 of Schedule 2 to the Migration Regulation.

   Clause 188.241 

   2.     [The primary applicant], the husband of [the first applicant], was invited to make an application on 24 October 2017, which satisfies clause 188.241(1) that the applicant was invited, in writing, by the Minister to apply for the visa.

   3.     When [the primary applicant] was invited, [the first applicant] was 45 years old, which satisfies clause 188.241(2) that the applicant had not turned 55 at the time of the invitation to apply for this visa. Annexed and marked “A” is a copy of the birth certificate of [the first applicant]. Clause 188.242

   4.     According to the Eligibility under the Investor Stream of Business Innovation and Investment (provisional) visa (subclass 188) on the website of the Department of Home Affairs on 4 October 2022, the applicant’s score on the business innovation and investment points test must be at least 65.

   5.     At the time of invitation, 24 October 2017, to apply for this visa, [the first applicant] was 45 years old, and she gets 15 points for the age qualifications (Part 7A25). 6. [The first applicant] held eligible investments which had a value of not less than AUD100,000 for not less than 7 years immediately before the time of invitation, 24 October 2017, and she gets 15 points for investor experience qualifications (Part 7A62).

   Annexed and marked “B” is a copy of [the first applicant]’s Comprehensive Monthly Statements at her account in [Investment Services] at Hong Kong from 2010 to 2015.

   i.On 30 June 2010, the market value of the securities portfolio was AUD 113,421.22 (HKD 752,436.32 @ 6.6340)

   ii.On 30 June 2011, the market value of the securities portfolio was AUD 58,564.90 (HKD 489,491.28 @ 8.3581)

   iii.On 31 July 2012, the market value of the securities portfolio was AUD 169,815.81 (HKD 1,386,087.56 @ 8.1623)

   iv.On 30 June 2013, the market value of the securities portfolio was AUD 176,671.66 (HKD 1,271,081.92 @ 7.1946)

   v.On 30 June 2014, the market value of the securities portfolio was AUD 213,788.03 (HKD 1,560,930.48 @ 7.3013)

   vi.On 30 June 2015, the market value of the securities portfolio was AUD 332,705.01 (HKD 1,980,792.52 @ 5.9536)

   b. Annexed and marked “C” is a copy of [the first applicant]’s Securities Account Monthly Statements at her account in [the Bank in Hong Kong] from 2015 to 2022.

   i. On 30 June 2015, the market value of the securities portfolio was AUD 85,662,46 (HKD 510,000.00 @ 5.9536)

   ii. On 30 June 2016, the market value of the securities portfolio was AUD 2,542,721.77 (HKD 14,650.400.00 @ 5.7617)

   iii. On 30 June 2017, the market value of the securities portfolio was AUD 2,748,080.16 (HKD 16,497,000.00 @ 6.0031)

   iv. On 30 June 2018, the market value of the securities portfolio was AUD 2,755,857.46 (HKD 15,984,800.00 @ 5.8003)

   v. On 30 June 2019, the market value of the securities portfolio was AUD 2,147,364.97 (HKD 11,759,400.00 @ 5.4762)

   vi. On 30 June 2020, the market value of the securities portfolio was AUD 537,308.95 (HKD 2,858,000.00 @ 5.3191)

   vii.On 30 June 2021, the market value of the securities portfolio was AUD 803,603.86 (HKD 4,691,600.00 @ 5.8382)

   viii.On 30 June 2022, the market value of the securities portfolio was AUD 496,355.77 (HKD 2,683,200.00 @ 5.4058)

   [The first applicant] also invested in hotpot restaurants.

   i.Annexed and marked “D” is a copy of [a Business 1] Agreement dated 01 January 2014. [The applicant] invested AUD 27,702.37 (RMB 150,000 @ 5.4147 ) and maintained 10% of the shares.

   ii.Annexed and marked “E” is a copy of [a Business 2] Agreement dated 22 August 2014. [The first applicant] invested AUD 59,195.30 (RMB 340,000 @ 5.7437) and maintained 10% of the shares.

   iii.Annexed and marked “F” is a copy of [a Business 3] Agreement dated 07 May 2015. [The first applicant] invested AUD 103,699.67 (RMB 513,500 @ 4.9518) and maintained 10% of the shares. iv. Annexed and marked “G” is a copy of the Dividend Table During Operation for the above three [businesses].

   7. The net value of the business and personal assets of [the first applicant] and [the primary applicant] was not less than AUD2,250,000 in each of the 2 fiscal years immediately before the time of invitation, 24 October 2017, and she gets 35 points for financial asset qualifications (Part 7A74).

   a. Annexed and marked “H” is a copy of the Bank Statement of [the primary applicant] at [the Bank  in China] from 09 December 2013 to 9 June 2022. [The primary applicant] opened a term deposit account on 9 December 2013 with an opening balance of AUD 361,285.63 (RMB 2,000,000.00 @ 5.5362), and the bank account number is [Account number]. The term deposit was renewed on a half-year basis till 9 June 2022.

   b. Annexed and marked “I” is a copy of the Certificate of Deposit Balance Of [the primary applicant] at [the in China dated 31 August 2022. On 31 August 2022, the balance of the bank account [Account number] was AUD 496,811.22 (RMB 2,363,380.62 @ 4.7571).

   c. Annexed and marked “J” is a copy of the Individual tax Certificates dated 3 September 2013. This is the legal source of the AUD 361,285.63 (RMB 2,000,000.00 @ 5.5362) deposited in the bank account [Account number] on 9 December 2013. (clause 188.247 satisfied).

   d. On 31 December 2015,

   i . [The primary applicant]’s stock and cash assets held with [Securities] in China of RMB 9.41m (accepted and acknowledged in the IMMI Refusal Notification dated 24 May 2019)

   ii. [The primary applicant]’s cash assets held with [the Bank in China] of RMB 2,118,492.17

   iii. Total net asset value of AUD 2,259,849.80 (RMB 11,344,445.95 @ 5.02)

   8. Overall, [the applicant]’s score is at least 65, which satisfies clause 188.242(1).

   Clause 188.243 & 188.244

   9. [The first applicant] had a successful record of qualifying business activity, and she maintained direct involvement in managing [Company] from 2006 to now as Deputy General Manager. From 2002 to now, [the primary applicant] owned at least 40% of interest of the total value of [Company]. Both clause 188.243 and clause 188.244 are satisfied.

   a. Annexed and marked “K” is a copy of the resume of [the first applicant]. [The first applicant] started working as the Deputy General Manager of [Company] from 2006, and before that, she worked as a producer and director of the producer (translated as distributor by the translator) from 2002 to 2005. [The first applicant] also introduced her job descriptions and investing experience in her resume.

   b. Annexed and marked “L” is a copy of the introduction of [Company]. The [Production] produced by [Company] is introduced.

   c. Annexed and marked “M” is a copy of the business card of [the first applicant].

   d. Annexed and marked “N” is a copy of the Organisation Chart and duties of [Company]. Currently, there are only 3 employees. This is because the [Production] companies in China only recruit contractors when producing [Productions], and there are limited employees in the company.

   e. Annexed and marked “O” is a copy of the Business Licence of [Company] from 05 June 2002 to 04 June 2052.

   f. Annexed and marked “P” is a copy of the Articles of Association of [Company] enquiried on 13 September 2022.

   g. Annexed and marked “Q” is a copy of Salary Payroll to [the first applicant] from 2002 to 2022. [The first applicant] does not receive a bench-mark salary from [Company] because this is her family-owned business.

   h. Annexed and marked “R” is a copy of the Auditing Report of [Company] from 2005 to 2011 and 2013 to 2017. [The primary applicant] owned 40% of the interest of [Company] from 2002 to 2010, and owned 100% of the interest of [Company] from 2011 to now. The [Production] of [Company] were on in 2005, 2008, 2009, 2010, 2011 and 2013, and the company made profits.

   i. Annexed and marked “S” is a copy of Photos of the office of [Company].

   Clause 188.245

   10. Clause 188.245 is also satisfied if paragraph 7 is satisfied. Clause 188.246 & 188.248

   11. [The first applicant] agrees to make a designated investment of at least AUD 1,500,000 in NSW in her or [the primary applicant]’s name and genuinely has a realistic commitment to continue to maintain business or investment activity in Australia.

   12. [The first applicant] has a genuine intention to reside for at least 2 years in NSW.

   Clause 188.249

   13. To meet public interest criteria 4005, [the first applicant] and each member of her family unit agree to attend the health check when required. Clause 188.211 and 188.212 and 188.212A

   14. [The first applicant] and [the primary applicant] satisfy these clauses.

   15. [The first applicant] has never applied or held a Subclass 491 visa or Subclass 494 visa. Clause 188.213

   16. To meet public interest criteria 4001, [the first applicant] and each member of her family unit agree to provide any documents required by the Minister. Annexed and marked “T” is a copy of [the first applicant]’s Police Check in Australia and “U” is a copy of [the first applicant]’s Police Check in China.

   17. [The first applicant] and each member of her family unit satisfy public interest criteria 4002, 4003. 4004, 4010 and 4020.

   18. [The first applicant] also satisfies public interest criteria 4021. Annexed and marked “V” is a copy of [the first applicant]’s passport.

   19. [The third applicant] (born [Date ), son of [the first applicant] and [the primary applicant], satisfies public interest criteria 4015 and 4016.

   Clause 188.214 20.

   [The first applicant] and each member of her family unit satisfy special return criteria 5001, 5002 and 5010.

   Conclusion

   Above all, we believe [the primary applicant] can satisfy all of the primary criteria for a subclass 188 visa in the Investor stream, as set out in Parts 188.21 and 188.24 of Schedule 2 to the Migration Regulations. If the presiding Member needs any further assistance, please contact us without any hesitation.

   …

4. The supporting documents provided are as described in the above submissions.

5. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicants meet the requirements to cl.188.311, requiring them to be members of the family unit of a person who held a subclass 188 visa on the basis that they satisfied the primary visa criteria.

7. As noted above, it is not disputed that:

   ·the primary visa applicant for the subclass 188 visa application was [the primary applicant];

   ·he was refused a visa by the Department on 24 May 2019 and did not seek review of that decision at the Tribunal (and did not have standing to do so as he was outside the migration zone at the relevant time(s) – see s.347(2)); and

   ·although [the primary applicant] sought judicial review of the Department’s decision to refuse him a subclass 188 visa with the Federal Circuit Court of Australia, the Federal Circuit Court of Australia had dismissed [the primary applicant]’s application for judicial review on [Date].

8. Therefore, although the first, second and third named applicants ([the primary applicant]’s wife and children) are members of [the primary applicant]’s family unit (as that term is defined in r.1.12 of the Regulations), they are not members of the family unit of a person who holds a subclass 188 visa granted on the basis that they met the primary visa criteria. They therefore do not meet cl.188.311 and there is no evidence that the second and third named applicants meet the primary visa criteria in their own right.

9. As noted above, the applicants’ agent was given time to make submissions as to how the first named applicant met the primary visa criteria (rather than her husband [the primary applicant]), and detailed submissions were provided to the Tribunal on 5 October 2022 addressing the first named applicant’s ability to do so.

10. The Tribunal has reviewed these submissions, and the primary visa criteria for a subclass 188 visa in the Investor stream (as they were at the time that the visa application was lodged on 27 October 2017). In particular, it notes that cl.188.241(1) provides as follows:

    188.24  Criteria for Investor stream 

    Note:    These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 188 visa in the Investor stream.

    188.241 

    (1)  The applicant was invited, in writing, by the Minister to apply for the visa. 

    …

11. As noted by the agent, [the primary applicant] was invited to apply for the subclass 188 visa, not the first named applicant. There is no evidence that the first named applicant has been invited by the Minister to apply for the visa. As such, the first named applicant is unable to meet cl.188.241(1) and thus does not meet cl.188.241 as a whole. It is therefore unnecessary for the Tribunal to consider whether she meets any of the other criteria in part 188.24. The first named applicant’s inability to meet cl.188.241 means that she cannot satisfy the primary criteria for a subclass 188 visa in the Investor stream, and she has not claimed to meet the requirements of any other stream.

    Ministerial intervention

12. The Tribunal notes that s.351 of the Act confers on the Minister for Immigration a personal and non-compellable power to intervene to grant an applicant a visa in the event of an unsuccessful outcome at the Tribunal. The guidelines for doing so are set out on the Department’s website: Ministerial intervention (homeaffairs.gov.au). It is open to the applicants to make a request if they believe there are unique or exceptional cases in their case which would warrant Ministerial intervention.

    decision

13. The Tribunal affirms the decisions to refuse to grant the applicants Class EB subclass 188 (Business Innovation and Investment – Provisional) visas.

    Alison Mercer
    Member