Chen (Migration)

[2021] AATA 3263

Chen (Migration) [2021] AATA 3263 (16 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ying Chen
Mr Yifeng Liu
Miss Yinuo Liu
Mr Qianyou Liu

CASE NUMBER:  1930784

DIBP REFERENCE(S): BCC2018/1861319 BCC2019/5834038 BCC2019/5834040

MEMBER:Peter Ranson

DATE:16 August 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Business Innovation and Investment (Provisional) visas for reconsideration with the direction the first named visa applicant meets the following criteria:

· Clause 188.245 of Schedule 2 to the Regulations.

Statement made on 16 August 2021 at 12:33pm

CATCHWORDS

MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 Business Innovation and Investment (Provisional) – Investor stream – business activity determined to be of exceptional economic benefit – business and personal assets of at least A$2,250,000 – evidence of capital investment – ownership evidence of 5 nominated properties in China – funds transferred to a family member and repaid – decision under review remitted 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 188.245, 188.311          

STATEMENT OF DECISION AND REASONS

Table of Contents

APPLICATION FOR REVIEW

OVERVIEW OF THE RELEVANT CRITERIA

Criteria for the Investor Stream

CONSIDERATION OF CLAIMS AND EVIDENCE

What evidence was considered by the Tribunal?

Why did the delegate refuse the application?

What does clause 188.245 require?

The assets of the Applicant

56 Longning Road

1222 Jinkai Main Road

51 Honghu East Road

55 Jingui Road

Huayu Jinsha Gangwan

Financial products

Stocks

Loan to Mrs Cao

Bank deposits

CONCLUDING FINDING

DECISION

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 October 2019 (the Decision) to refuse to grant the visa applicants (the Applicants) Business Innovation and Investment (Provisional) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The Applicants were invited to apply for their visas on 21 March 2018 and applied for the visas on 27 April 2018 (the Application). In this case, the first named applicant, Mrs Ying Chen, (the Applicant) is seeking to satisfy the primary criteria for the grant of the visa in the Investor Stream. Mr Yifeng Liu is the spouse of the Applicant (the Second Visa Applicant).

3. The Application was lodged on behalf of the Applicants by Aust-Asia Health Pty Ltd, which changed its name from Australian Migration & Recruitment Consulting Pty Ltd, and the Applicants were originally represented by Ms Grace Xie[1] of (Ms Xie) of that organisation. On 2 June 2021, Ms Xie was replaced by Ms Lena Hung of Lena Hung and Associates (Ms Hung).

   [1] Migration Agents Registration Number: 0211694

4. The criteria for a Subclass 188 visa are set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The Applicant must satisfy the primary criteria, which includes the stream specific criteria, set out in subdivision 188.2. The secondary applicants must satisfy the secondary criteria set out in subdivision 188.3.

5. The delegate in this case refused to grant the visas on the basis the Applicant did not satisfy the requirements of cl.188.245 of Schedule 2 to the Regulations because of inadequate documentary evidence in support of this criterion, particularly the transfers of funds between the Applicant and her mother.

6. The secondary visa applicants applied based on being members of the family unit of the Applicant. The delegate found the Secondary Visa Applicants could not be granted Subclass 188 visas, as they did not meet the primary criteria in their own right nor did they meet the secondary visa criterion (cl.188.311) requiring them to be members of the family unit of a person who met the primary visa criteria.

7. The applicants appeared before the Tribunal on 21 June 2021 (the First Hearing) and again on 28 June 2021 (the Second Hearing) to give evidence and present arguments. The Tribunal received oral evidence from The Applicant and the Second Visa Applicant together with the Applicant’s mother, Mrs Kaibi Cao (Mrs Cao). The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.

8. Ms Hung and all parties attended the Hearings by video link facilitated by the Tribunal utilising Microsoft Teams. The hearings were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearings by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. 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 hearings were not to be conducted by video conference. The Tribunal is satisfied the Applicant was given a fair opportunity to give evidence and present arguments.

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

OVERVIEW OF THE RELEVANT CRITERIA

10.  The common criteria for all streams of Subclass 188 visas are set out in cl.188.21. The stream specific criteria, in this case for the Investor Stream, are set out in cl.188.24. The primary criteria for the grant of the visa, including the common criteria and the stream specific criteria must be satisfied at the time a decision is made on the application.

Criteria for the Investor Stream

11.  The criteria for the Investor Stream are set out in sub-div 188.24. Clause 188.241 requires the applicant to have been invited in writing by the Minister to apply for the visa; to have not turned 55 at the time of the invitation, or alternatively the applicant is proposing to establish or participate in business or investment activity, which the nominating State or Territory government agency has determined is of exceptional economic benefit to the State or Territory in which the agency is located.

12.  Clause 188.242 requires the Applicant’s score on the business innovation and investment points test to be not less than the number of points specified by the Minister in writing.

13.  Clause 188.243 requires the Applicant to have had overall a successful record of eligible investment activity or qualifying business activity including a total of at least 3 years’ experience of direct involvement in managing one or more qualifying businesses or eligible investments, and to demonstrate a high level of management skill in relation to the eligible investment or qualifying business activity.

14.  Clause 188.244 requires the Applicant, for at least one of the five fiscal years immediately before the time of invitation to apply for the visa, to have maintained direct involvement in managing a qualifying business and the applicant, the applicant’s spouse or de facto partner and his or her spouse or de facto partner together, had an ownership interest of at least 10% of the total value of the business. Alternatively, the applicant maintained direct involvement in managing eligible investments of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, which had a total net value of at least A$1.5 million

15.  For the two fiscal years immediately before the time of invitation to apply for the visa, cl.188.245 requires 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 A$2,250,000. This is the criterion on which the delegate refused the visa applications.

16.  Clause 188.246 requires the applicant to have made a designated investment of at least $1.5 million in the state or territory in which the nominating State or Territory government agency is located, and made the investment in the name of the applicant or in the names of the applicant and his or her spouse or de facto partner. Further, the funds used to make the designated investment were unencumbered, and accumulated from either or both of:

(a)  one or more qualifying businesses conducted by the applicant, the applicant spouse or the de facto partner, or the applicant and his or her spouse or de facto partner together; and

(b)  eligible investment activities of the applicant, the applicant spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.

17.  Clause 188.247 specifies the business and personal assets of the applicant and their spouse combined are lawfully acquired and available for transfer to Australia within 2 years after the grant of the relevant visa.

18.  Clause 188.248 requires the Applicant to genuinely have a realistic commitment to continue to maintain business or investment activity in Australia after the designated investment made by the applicant, or together with their spouse or de facto partner, matures. Further, the applicant must have a genuine intention to reside for at least two years in the State of Territory in which he or she made the designated investment application.

19.  To meet cl.188.249, the applicant and each member of the family unit of the applicant who is an applicant for a subclass 188 visa satisfies public interest criteria 4005. This requirement extends to each member of the family unit of the applicant who is not an applicant for a subclass 188 visa unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

CONSIDERATION OF CLAIMS AND EVIDENCE

What evidence was considered by the Tribunal?

20.  The Tribunal had before it the following evidence:

Department File	Digitised file of 1,373 pages provided by the Department of Home Affairs.
Tribunal File	Digitised file of 1,969 pages comprising various submissions provided to the Tribunal.
First Submission	Submission of 900 pages with 22 attachments and dated 14 May 2021 from Ms Xie.
Second Submission	Submission of 10 pages and dated 25 June 2021 from Ms Hung.
Third Submission	Submission of 223 pages received by the Tribunal on 19 July 2021.

21.  The Tribunal has considered all the material supplied to it and the oral evidence provided by the Applicants and the witness. Not all the evidence is referred to at length in this decision. That does not mean it has not been considered in determining the outcome. It is sometimes impractical or unnecessary to canvass all aspects, arguments, and history of a case in the decision record.

22.  To the extent to which the documentary evidence was in a language other than English and not translated, the Tribunal has considered it to be extent it was able to understand it.

23.  In accordance with Departmental policy, the foreign exchange buying rates used in this decision have been compared with those from OANDA[2] for the last trading day of December each year. The OANDA rates are:

[2]

As at	A$1=CNY
31 December 2015	4.73126
31 December 2016	5.02272
31 December 2017	5.08433

Why did the delegate refuse the application?

24.  The Applicant was invited to apply for a subclass 188 visa on 21 March 2018. The Applicant and the Second Visa Applicant are from China[3] where the fiscal year end is 31 December. The issue in this case is establishing to the satisfaction of the Tribunal whether the business and personal assets of the Applicant and the Second Visa Applicant, or their combined assets, had a net value of at least A$2,250,000 during the fiscal years ended 31 December 2016 and 31 December 2017 as required by cl.188.245.

[3] As stated on the subclass 188 visa application lodged online on 27 April 2018.

25.  The delegate’s decision noted the following:

‘In support of your ownership and value for the 5 nominated properties, you have provided valuation reports prepared by Hong Kong Real Estate Assessment Consultants Limited as of the 3 balance dates for consideration. However, you have not made available any source evidence for your capital investment to establish your ownership as claimed.

As for the personal loan to Mrs Kaibi Cao, who is noted to be your mother, you have not made available any independent verifiable evidence of the ownership and value of the claimed loan, but provided banking records indicating that you transferred RMB1m and RMB580k to Mrs Kaibi Cao on 29/5/2015 and 18/6/2015 respectively. There is no evidence as to the nature of the funds transfer as in a loan agreement. Moreover, you have not made available any source information to evidence the two amounts transferred to her was personally owned by you.

26.  The delegate was also concerned potentially fraudulent documents had been submitted by the Applicant in a previous Subclass 188 visa application. In any event, the nub of the issues for the delegate were the source of the funds by which the Applicant acquired her assets and whether the transfer of funds between the Applicant and her mother was a bona fide loan or something else.

27.  The source of the funds used to acquire the assets offered in satisfaction of cl.188.245 is not tested as part of that criterion. It may be relevant in satisfaction of cl.188.247, which requires, inter alia, the assets of the Applicant and their spouse have been lawfully acquired.

28.  As the delegate made an adverse finding on cl.188.245 alone and in accordance with the President’s Direction on Conducting Migration and Refugee Reviews dated 1 August 2018, the Tribunal will restrict its review to that criterion. The remaining criteria will be assessed by a delegate of the Minister for Immigration.

What does clause 188.245 require?

29.  Clause 188.245 states:

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 A$2,250,000.

The assets of the Applicant

30.  The Statements of Assets and Liabilities Position (SALP) provided for the Applicant and the Second Visa Applicant as follows:

Description	Short Name	31/12/2015	31/12/2016	31/12/2017
56 Longning Road	P1	1,600,000	1,680,000	2,240,000
1222 Jinkai Main Road	P2	2,830,000	2,890,000	3,040,000
51 Honghu East Road	P3	940,000	1,010,000	1,190,000
55 Jingui Road	P4	2,570,000	3,030,000	3,440,000
Huayu Jinsha Gangwan	P5	830,000	880,000	1,090,000
Financial products	60,786	20,000	0
Stocks	136,796	206,958	0
Funds transferred to Mrs Cao	1,580,000	1,580,000	1,580,000
Bank deposits (Account Nos 0553 & 2110)	100,680	0	0
Total (RMB)	10,648,262	11,296,958	12,580,000
Rate used in the SALP as lodged[4]	4.73	5.02	5.08
Total (AUD)	2,251,218	2,250,390	2,476,378

[4] The Tribunal notes these rates appear to be the OANDA rates, see [‎23], truncated to 2 decimal places.

56 Longning Road

31.  The Applicant provided a copy of an unsigned valuation dated 9 April 2018 prepared by Raymond Liu Zhi Feng, general manager of Hong Kong Real Estate Assessment Consultants Limited. The report states the valuer has not verified ownership of the subject property or the existence of any amendments which do not appear on the copies of documentation provided by the Applicant. Nonetheless, the valuer states he has no reason to doubt their truth and accuracy of the information provided, and the value of the property as at 31 December 2015 is RMB 1,600,000, as at 31 December 2016 is RMB 1,680,000 and as at 31 December 2017 the value is RMB 2,240,000.

32.  Accordingly, the Tribunal accepts the unsigned valuation and finds the value of the property described as 56 Longning Road to be the amounts shown at [‎30] above.

1222 Jinkai Main Road

33.  The Applicant provided a copy of an unsigned valuation dated 9 April 2018 prepared by Raymond Liu Zhi Feng, general manager of Hong Kong Real Estate Assessment Consultants Limited. The report states the valuer has not verified ownership of the subject property or the existence of any amendments which do not appear on the copies of documentation provided by the Applicant. Nonetheless, the valuer states he has no reason to doubt their truth and accuracy of the information provided, and the value of the property as at 31 December 2015 is RMB 2,830,000, as at 31 December 2016 is RMB 2,890,000 and as at 31 December 2017 the value is RMB 3,040,000.

34.  Accordingly, the Tribunal accepts the unsigned valuation and finds the value of the property described as 1222 Jinkai Main Road to be the amounts shown at [‎30] above.

51 Honghu East Road

35.  The Applicant provided a copy of a signed valuation dated 9 April 2018 prepared by Raymond Liu Zhi Feng, general manager of Hong Kong Real Estate Assessment Consultants Limited. The report states the valuer has not verified ownership of the subject property or the existence of any amendments which do not appear on the copies of documentation provided by the Applicant. Nonetheless, the valuer states he has no reason to doubt their truth and accuracy of the information provided, and the value of the property as at 31 December 2015 is RMB 940,000, as at 31 December 2016 is RMB 1,010,000 and as at 31 December 2017 the value is RMB 1,190,000.

36.  Accordingly, the Tribunal accepts the signed valuation and finds the value of the property described as 51 Honghu East Road to be the amounts shown at [‎30] above.

55 Jingui Road

37.  The Applicant provided a copy of a signed valuation dated 9 April 2018 prepared by Raymond Liu Zhi Feng, general manager of Hong Kong Real Estate Assessment Consultants Limited. The report states the valuer has not verified ownership of the subject property or the existence of any amendments which do not appear on the copies of documentation provided by the Applicant. Nonetheless, the valuer states he has no reason to doubt their truth and accuracy of the information provided, and the value of the property as at 31 December 2015 is RMB 2,570,000, as at 31 December 2016 is RMB 3,030,000 and as at 31 December 2017 the value is RMB 3,440,000.

38.  Accordingly, the Tribunal accepts the signed valuation and finds the value of the property described as 55 Jingui Road to be the amounts shown at [‎30] above.

Huayu Jinsha Gangwan

39.  The Applicant provided a copy of a signed valuation dated 9 April 2018 prepared by Raymond Liu Zhi Feng, general manager of Hong Kong Real Estate Assessment Consultants Limited. The report states the valuer has not verified ownership of the subject property or the existence of any amendments which do not appear on the copies of documentation provided by the Applicant. Nonetheless, the valuer states he has no reason to doubt their truth and accuracy of the information provided, and the value of the property as at 31 December 2015 is RMB830,000, as at 31 December 2016 is RMB880,000 and as at 31 December 2017 the value is RMB1,090,000.

40.  Accordingly, the Tribunal accepts the signed valuation and finds the value of the property described as Huayu Jinsha Gangwan to be the amounts shown at [‎30] above.

Financial products

41.  Appendix 8 of the First Submission is a translated copy of an E Fund Management Co., Ltd Account Statement for account numbers ending #1943 and #0777 in the name of the Applicant for the period 1 December 2015 to 28 February 2018 showing a balance as at 31 December 2015 of RMB20,000. This comprises two deposits each of RMB10,000 made on 22 December 2015, and whilst the balance is not shown, it is apparent from the Journal Table of Transactions within the statement, both amounts remained in the account as at 31 December 2015. Further funds were contributed to this account however by 31 December 2016 the balance was RMB20,000 and by 31 December 2017 the balance was nil.

42.  Appendix 9 of First Submission is a translated copy of a China Southern Asset Management Co., Ltd transaction statement for account number ending #6183 in the name of the Applicant for the period 1 November 2015 to 31 December 2015 showing balance on 31 December 2015 of RMB40,786.44. There is no evidence this investment continued beyond 31 December 2015.

43.  The combined total of the balances of the E Fund Management Co and China Southern Asset Management Co investments is RMB60,786 at 31 December 2015, RMB20,000 as at 31 December 2016 and nil as at 31 December 2017.

44.  Accordingly, the Tribunal finds the value of the Financial Products to be the amounts shown at [‎30] above.

Stocks

45.  Appendix 10 of First Submission is a translated copy of a ‘Journal of Customer Capitals’ from Guotai Junan Securities Co., Ltd for customer code ending #9509 in the name of the Applicant (the Brokers Statement) dated 1 March 2018 and covering the period 21 May 2015 to 11 April 2016. The narration on the bottom of the document is as follows:

The customer held 4,400 shares of Robot & Automation (300024) on December 31, 2015, the closing price on December 31. 2015 was RMB 31.09 and the market value was 136,796.00

The customer held 9,680 shares of Robot & Automation (300024) on December 31, 2016, the closing price on December 31, 2015 was RMB 21.38 and the market value was 206,958.40

The customer held 9,680 shares of Robot & Automation (300024) on December 31, 2017, the closing price on December 31. 2015 was RMB 18.82 and the market value was 182,177.60

46.  The Tribunal notes the closing price at each year end is dated 31 December 2015. The Tribunal is in no position to assess whether this is a typographical error or an error in translation. Further, the statement clearly indicates a balance at 31 December 2017 of 9,680 shares with a market value of RMB182,177, which is not included on the SALP provided by the Applicant with the Application, notwithstanding the balance at each year end has been highlighted. As the balance at 31 December 2017 as shown on the Brokers Statement has not been included by the Applicant on the SALP as at 31 December 2017 it will be excluded by the Tribunal.

47.  The column entitled ‘Securities balance’ shown on the brokers statement shows 4,400 as at 3 June 2015 being a series of purchases dated 2 and 3 June 2015. There is a further purchase of 5,280 shares on 11 April 2016 and no transactions beyond that date. The Tribunal accepts the securities balance as at 31 December 2015 was 4,400 and as at 31 December 2016 was 9,680 by relying on the narration of the bottom of the statement as set out in [‎45] above.

48.  Accordingly, the Tribunal finds the value of the Stocks to be the amounts shown at [‎30] above.

Funds transferred to Mrs Cao

49.  In May and June 2015, the Applicant transferred RMB1,580,000 in two tranches to her mother, Mrs Cao, see China Minseng Bank statements for account ending #6266 included as annexure 14 to the First Submission. The Applicant and Mrs Cao gave evidence at the Second Hearing about these transfers.

50.  The Applicant said the transfer to Mrs Cao was ‘not really a loan’, rather an undocumented family arrangement to assist her mother to pay suppliers of her business. The funds were said to be sourced from the sale of other property between 2013 to 2015, which had originally been gifted to the Applicant by her mother in 2009. Curiously, the Applicant said she had forgotten about the loan until the delegate asked questions about it, which seems strange since it was listed on her SALP. Then the Applicant said she needed the money available at short notice to be able to buy a A$1.5m State Government Bond. As to whether the Applicant was repaying a loan from her mother, being an issue raised by the delegate, she said her mother never loaned her any money, rather she loaned money to her mother for her mother’s business.

51.  Mrs Cao said she was aware the Applicant had funds available from the sale of property. She confirmed she borrowed funds from her daughter under an undocumented family arrangement, at call and interest free. The purpose of the loan was to buy goods. She said she repaid the money when her daughter asked for it, because she said she needed it, which was not explained further to the Tribunal.

52.  The funds were repaid in 2019 following enquiry by the delegate, who took a jaundiced view of these transfers and made two references to them in the decision:

‘As for the personal loan to Mrs Kaibi Cao, who is noted to be your mother, you have not made available any independent verifiable evidence of the ownership and value of the claimed loan, but provided banking records indicating that you transferred RMB1m and RMB580k to Mrs Kaibi Cao on 29/5/2015 and 18/6/2015 respectively. There is no evidence as to the nature of the funds transfer as in a loan agreement. Moreover, you have not made available any source information to evidence the two amounts transferred to her was personally owned by you.’

‘In assessing the evidence provided on the claimed personal loan of RMB1.58m you made to your mother, I acknowledge that banking records have been made available indicating that you transferred RMB1.580m to her in 2015 and your mother transferred RMB1.580m back to you on 3/9/2019 as evidence of her repayment of the loan. In view of the source of funds for this loan not being satisfactorily demonstrated, the lack of any loan agreement and the non arms-length transaction as well as the repayment being made after our request for further evidence of the loan, I am unable to accept your claim that the RMB1.580m transferred to your mother’s bank account in 2015 was your personal assets as at the SALPs balance dates.’

53.  In the Third Submission, Ms Hung comments extensively on the validity and veracity of verbal agreements, such as the asserted loan from the Applicant to Mrs Cao, and offers the following comment about the collectability of that loan:

If the Tribunal is considering whether the loan could have been enforceable at any point in the 2 fiscal years prior to the time of invitation, in effect, whether the assets of the RMB 1.58 million could have been realised by Mrs Chen at any point during that period, the Tribunal is then referred to the evidence of the financial capacity of Mrs Cao as provided in evidence accompanying this submission. Mrs Cao has provided evidence of her considerable savings and assets as at the relevant period of time required for Mrs Chen to substantiate her net assets in the 2 years prior to the time of invitation. These funds were accumulated through legitimate business activity conducted by Mrs Cao, as supported by the evidentiary documents.

54.  Annexure 19 in the First Submission shows translated copies of China Merchants Bank statements for account number ending #6266, in the name of The Applicant, from which the funds for Mrs Cao were drawn on 29 May 2015 and 18 June 2015. The statements show the balance of the account for Mrs Cao before (emphasis added) the deposit of RMB1,000,000 was RMB2,028,789 and RMB1,010,051 after the second tranche.

55.  Conversely, Annexure 14 in the First Submission shows translated copies of China Minsheng Bank statements for account number ending #1921, in the name of the Applicant, from which the funds transferred to Mrs Cao were made on 29 May 2015 and 18 June 2015. The balance of this account immediately prior to the payment of the first tranche of RMB1,000,000 was only RMB2,000 (about A$400). This account went substantially overdrawn as a result of the transfer and only came back into credit of RMB6,127 (about A$1,225) on 19 June 2015, the day after the second tranche was paid consequent on deposits from unknown sources.

56.  Ms Hung did not elaborate, and the Tribunal is left to wonder, why Mrs Cao saw the need to borrow the money if she already had ‘considerable savings and assets at the relevant period of time’, at a time when her daughter had otherwise very meagre funds in account #6266, which was not listed on the SALP, and RMB100,680 (about A$20,000) in other accounts which were listed on the SALP.

57.  The Tribunal has concerns about the logic of the transfer of funds to and from the Applicant and Mrs Cao given the comments above. However, in 2015 funds totalling RMB1,580,000 were transferred to Mrs Cao by the Applicant as evidenced by the entries on the bank statements of the Applicant and Mrs Cao, and similar amounts were transferred to the Applicant by Mrs Cao on 3 September 2019 as evidenced by Annexure 15 to the First Submission, and both parties gave evidence a loan was made in 2015 and repaid in 2019.

58.  Accordingly, in the absence of evidence to the contrary the Tribunal finds amounts totalling RMB1,580,000 were transferred in 2015 by the Applicant to Mrs Cao under an undocumented family arrangement and transferred back by Mrs Cao to the Applicant in 2019, and the amount of the funds so transferred to Mrs Cao are the amounts shown at [‎30] above.

Bank deposits

59.  Appendix 11 of the First Submission is a translated copy of a Bank of China statement for account number ending #0553 in the name of the Applicant for the period 1 December 2015 to 31 December 2015 showing a closing balance of RMB85,165.43. Appendix 12 of the First Submission is a translated copy of an extract of an Industrial and Commercial Bank of China statement for card number ending #2110 in the name of the Applicant for the period 1 January 2015 to 31 December 2016 showing balance on 31 December 2015 of RMB15,514.08. The combined total of the two bank balances at 31 December 2015 is RMB 100,679.51.

60.  Accordingly, the Tribunal finds the value of the Bank Deposits to be the amounts shown at [‎30] above.

CONCLUDING FINDING

61.  Given the findings above, the Tribunal is satisfied cl.188.245 is met. The appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

62.  The secondary visa applicants are remitted for reconsideration by the Department based on the outcome of the application by the primary visa applicant.

DECISION

63.  The Tribunal remits the applications for Business Innovation and Investment (Provisional) visas for reconsideration with the direction the first named visa applicant meets the following criteria:

· cl 188.245 of Schedule 2 to the Regulations.