Chen (Migration)

The Administrative Appeals Tribunal considered an application for a Business Skills (Provisional) (Class EB) visa, Subclass 188, in the significant investor stream. The applicant, Ms. Chen, sought to have her visa application reconsidered after an initial investment was withdrawn. The primary dispute concerned whether the funds used for the investment met the requirements of regulation 5.19C of the Migration Regulations 1994, specifically that they be unencumbered and lawfully acquired.

The Tribunal was required to determine if Ms. Chen had made a complying significant investment of at least AUD 5,000,000, as stipulated by clause 188.252 of Schedule 2 to the Regulations. This involved examining the source of the funds, which were proposed to be sourced from a loan secured against a property jointly owned by Ms. Chen and her brother. The Tribunal also had to consider the applicant's intention to hold the investment for at least four years, a requirement for invitations made before 1 July 2021.

The Tribunal noted that Ms. Chen had initially made a complying investment with Moelis, but this investment was subsequently withdrawn. The source of the funds for this investment was a combination of a loan from Jiangmen Rural Commercial Bank Co. Ltd, secured against a property owned by Ms. Chen and her brother, and funds from Ms. Chen's father, which were derived from the repayment of a private business loan. The Tribunal found that because the initial complying investment was no longer current, it could not assess the remaining criteria under regulation 5.19C.

Given Ms. Chen's stated willingness to make a new complying investment if directed by the Department, the Tribunal remitted the matter for reconsideration. The Tribunal directed that the applicant be considered to meet regulation 5.19C(3) for the purposes of clause 188.252(1) of Schedule 2 to the Migration Regulations 1994, allowing for the assessment of the remaining criteria in relation to an imminent complying investment.