Bo (Migration)

This matter concerned an application for a Subclass 188 (Business Innovation and Investment (Provisional)) visa, specifically within the significant investor stream. The applicant sought to satisfy the primary criteria for this visa, which included making a complying significant investment of at least AUD 5,000,000 and demonstrating a genuine intention to hold that investment for the required period. The core of the dispute revolved around whether the applicant had met the definition of a "complying significant investment" as defined in regulation 5.19C of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant had made a complying significant investment and whether the funds used for this investment were unencumbered and lawfully acquired. Regulation 5.19C sets out detailed requirements for an investment to be considered "complying," encompassing both the investment itself and the investor. Crucially, the regulation mandates that all funds used for the investment must be unencumbered and lawfully acquired, and the investment must be lawful and not used as security for a loan. The Tribunal also considered the investor's personal involvement in making the investment, as stipulated by the regulation.

The Tribunal affirmed the decision not to grant the visa. It found that the applicant's background, including limited education and work history, coupled with their involvement as a middleman for high-profile business people and an informal money transfer service provider, raised concerns. The Tribunal noted undetailed explanations, unsystematic documentation, and very large cash deposits and withdrawals. Critically, the Tribunal was not satisfied that there was verifiable evidence that the funds used for the investment were lawfully acquired, a fundamental requirement under regulation 5.19C(3). Consequently, the Tribunal concluded that the applicant had not met the secondary requirements for the visa.