Gao (Migration) - [2025] ARTA 1658

GAO (MIGRATION) [2025] ARTA 1658 (4 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Qian Gao
Mr Weiping Zheng
Miss Jia Zheng
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2305273

Tribunal:General Member P Maishman
Place:Perth
Date: 4 August 2025
Decision:The Tribunal sets aside the decision and remits the applications for Business Skills (Provisional) (Class EB) visas for reconsideration, in accordance with the order that the first named visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:
·cl 188.242 of Schedule 2 to the Regulations.

The decisions for the second and third named applicants are set aside and remitted to be reconsidered in accordance with these orders.

Statement made on 04 August 2025 at 2:51pm
CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – investor stream – points test – educational qualifications – no points attributed by delegate – recognised institution and course – points attributed – investor experience – eligible investments held for four years, not seven as required – members of family unit husband and daughter – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 188.242(1)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 April 2023 to refuse to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 16 January 2020. Class EB contains Subclass 188 (Business Innovation and Investment (Provisional)). The criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. The primary criteria include common criteria, and criteria set out in streams. In this case, the first named visa applicant (‘the applicant’) applied for the visa in the Investor Stream.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 188.242(1) of Schedule 2 to the Regulations because the applicant’s score on the business innovation and investment points test was less than 65 as specified by the Minister.
The first named applicant appeared before the Tribunal on 5 June 2025 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is seeking to satisfy the primary criteria for a Subclass 188 visa in the Investor stream which include the criteria in Subdivisions 188.21 and 188.24 of Schedule 2 to the Regulations.
The Tribunal had before it a copy of the Department’s file.
The applicant gave the Tribunal a copy of the delegates decision record with her application for review. The Tribunal received submissions and documents on 29 May 2025; 4 June 2025 and after the hearing on 18 June 2025.
The delegate’s decision record outlines the history of the application. The delegate determined the applicant did not meet the requirements of cl 188.242(1) which provides:
(1) The applicant’s score on the business innovation and investment points test is not less than the number of points specified by the Minister in an instrument in writing for this subclause.
(2) For subclause (1):
(a) an applicant’s score on the business innovation and investment points test is the sum of the applicant’s scores under Parts 7A.2, 7A.3, 7A.4, 7A.6, 7A.7, 7A.8, 7A.9 and 7A.10 of Schedule 7A; and
(b) the Minister must not give the applicant the prescribed number of points for more than one prescribed qualification in Parts 7A.2, 7A.3, 7A.4, 7A.6, 7A.7, 7A.8 and 7A.10 of Schedule 7A; and
(c) if the applicant’s circumstances satisfy more than one prescribed qualification in Parts 7A.2, 7A.3, 7A.4, 7A.6, 7A.7, 7A.8 and 7A.10 of Schedule 7A, the Minister must give the applicant points for the qualification that has been satisfied that attracts the highest number of points.
The applicant claimed a score of 65 on the business innovation and investment points test.

Attributes

Points claimed

Description

7A.2 - Age

15

At the time of invitation the applicant was at least 45

but less than 55 years old.

7A.6 - Investor

Experience

15

The applicant held eligible investments with a value of

AUD100,000 for at least 7 years immediately before the time of invitation.

7A.7 Financial Asset qualification

35

At least AUD2,250,000 in each of the 2 fiscal years

immediately before the time of invitation.

65

Total points claimed

The relevant Legislative Instrument is IMMI 12/042[1] and specified the minimum score to be 65 points. The points specified by the Minister for this purpose remain at 65: refer LIN 22/083[2].
[1] Specification under subclauses 188.222(1) and 188.242(1) of Schedule 2 - Points for Business Innovation Stream and Investor Stream of Business Innovation and Investment (Provisional) Visa - June 2012 - Federal Register of Legislation
[2] Migration (Points for Business Innovation Stream and Investor Stream of Subclass 188 Visa) Instrument (LIN 22/083) 2022 - Federal Register of Legislation
The delegate found that the applicant was only entitled to 10 points for Part 7A.6 – Investor Experience and reduced the applicants total score to 60 points. As a result, the Delegate found that the applicant did not meet the criteria to be granted a Subclass 188 visa. The Delegate also refused to grant subclass 188 visas to the other applicants (the applicant’s husband and daughter) on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who satisfied the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.
The issue in the present case is whether the applicant’s score on the Business Innovation and Investment Points Test is not less than the number of points specified by the Minister in an Instrument in writing for that test: cl. 188.242(1).
The Tribunal has assessed, on the basis of the information available to it and the applicants oral evidence, the applicant’s entitlement to points under the specified parts of the Schedule 7A Points Test.
Part 7A.2 – Age Qualifications
The applicant was invited by the Minister to apply for the visa on 19 November 2019 when the applicant was at least 45 but less than 55 years old.
The points attributable under Part 7A.2 is 15 points.
Part 7A.3 - English Language Qualifications
Points are available under this Part if, at the time of invitation to apply for the visa, the applicant has either vocational or proficient English.
Regulation 1.03 provides that ‘vocational English’ has the meaning given in reg 1.15B. Relevantly to this matter, reg 1.15B provides:
(1) A person has vocational English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the person is an applicant for a visa; and
(ba) for a person who was invited by the Minister under these Regulations, in writing, to apply for the visa — the test was conducted in the 3 years immediately before the date of the invitation; and
(bb) for a person to whom paragraph (ba) does not apply — the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument.
(2) A person also has vocational English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
Regulation 1.03 provides that ‘proficient English’ has the meaning given in reg 1.15D of the Regulations. Pursuant to reg 1.15D, a person has ‘proficient English’ if:
(a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(aa)the person is an applicant for a visa, and
(b)the test was conducted in the 3 years immediately before the day on which the Minister invited the person under these Regulations, in writing, to apply for the visa; and
(c)the person achieved a score specified in the instrument.
The relevant Instrument for the purposes of reg 1.15B(1)(a) and (c); and reg 1.15D(a) and (c) is IMMI 15/005[3]. Relevantly, the International English Language Test System (IELTS) test is a specified test. An IELTS test score of at least 5 in each of the four test components of speaking, reading, writing and listening is specified for ‘vocational English’. An IELTS test score of at least 7 in each of the four test components of speaking, reading, writing and listening is specified for ‘proficient English’.
[3] Migration Regulations 1994 - Specification of Language Tests, Score and Passports 2015 - IMMI 15/005 - Federal Register of Legislation
The applicant was invited to apply for the visa on 19 November 2019.
The applicant contended she could demonstrate a level of vocational English based on an IELTS outcome letter dated 30 November 2024. The applicant gave the Tribunal a separate IELTS test report dated 12 December 2024 indicating she undertook the test on 30 November 2024. The IELTS test report shows the applicant achieved the IELTS test score of at least five in each of the four test components as required by the definition of ‘vocational English’.
The Tribunal considered the applicant’s English proficiency at the time of her application. The applicant does not hold a specified passport and so does not meet the requirements of reg 1.15B(2). On her visa application the applicant claimed to have ‘functional English’.
The applicant submitted an IELTS test report dated 26 December 2019 with her visa application. The report indicates the applicant undertook an IELTS English test on 14 December 2019 and achieved a score of 4.5 for the reading component. The applicant did not achieve the IELTS test score of at least five in each of the four test components as required by reg 1.15B(1)(c).
The IELTS tests reports provided by the applicant confirm neither of the IELTS tests were conducted in the three years immediately before the day on which the Minister invited the applicant to apply for the visa and do not meet the requirements of reg 1.15B(1)(ba) or reg 1.15D(b).
Accordingly, while the applicant claims to have met the requirements, she has not provided evidence of her English proficiency which meets the requirements of the definitions. The applicant has not demonstrated that at the time of invitation to apply for the visa she had either vocational English or proficient English as defined.
Accordingly no points are attributable under Part 7A.3.
Part 7A.4 - Educational Qualifications
The applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, she had met the requirements for the award of a bachelor degree by an Australian educational institution; or the award of a bachelor qualification by an educational institution that is of a recognised standard. Higher points are available for bachelor qualifications in business, science or technology.
The applicant declared on her application she completed a bachelor of Chinese Medicine from the Beijing University of Chine Medicine (BUCM) in September 1998. It is unclear to the Tribunal why this Part appears not to have been considered by the delegate for attribution of points.
The Tribunal had regard to the applicant’s submissions including her Certificate of Graduation dated 7 July 1998, transcript from the Chinese medicine program, and ranking and rating assessment of BUCM.
BUCM is ranked[4] in the top 1201-1400 Universities worldwide and 441-450 in Asia. BUCM is described as one of the top public universities in Beijing. The Bachelor of Chinese Medicine is a 5 year course and, in addition to Eastern medicine and subjects, includes Western style science units in Human Anatomy; Biology; Microbiology; Parasitology; Pathology; Pharmacology; Western Internal Medicine; and Dermatology.
[4] QS World University Rankings, Events & Careers Advice | Top Universities
The Tribunal finds BUCM is an educational institution that is of a recognised standard as a genuine tertiary training institute. The Tribunal finds the applicant met the requirements for the award of Bachelor qualifications in the field of science.
Accordingly, the points attributable under Part 7A.4 is 10 points.
Part 7A.6 – Investor Experience Qualifications
Points are available under this Part if the applicant held eligible investments of at least AUD100,000 for at least 4 years or at least 7 years immediately before the time of invitation to apply for the visa (i.e. eligible investment since prior to 20 November 2013 or prior to 20 November 2016.
Clause 188.112 specifies an investment is an eligible investment if a person owns it for the purpose of producing a return in the form of income or capital gain, and not for personal use. Examples include an ownership interest in a business, cash on deposit, stocks or bonds, real estate and gold or silver bullion. Clause 188.113 states a loan to a business is an eligible investment if a person makes it for the purpose of producing a return in the form of income or capital gain.
The applicant claimed 15 points in this part based on having eligible investments of at least AUD100,000 for 7 years (i.e. since 20 November 2013).
The delegate assessed the applicant held eligible investments of at least AUD100,000 for 4 years (i.e. since 20 November 2016) and attributed 10 points under this part.
The applicant contended the Department’s policy supported the submission that ownership of assets by her husband should be included as the applicant’s ownership.
The Department’s policy document discusses ‘ownership’ of eligible investment in Chapter 8. It says at 8.2:
Under policy, an investment asset may be owned or partly‑owned by the applicant and/or their spouse or de‑facto partner. However, if an asset is only partly‑owned, only that portion owned by the applicant and/or their spouse or de‑facto partner may be included in the calculations. If there is no written evidence of the portion owned, an equal share with the other party/parties may be assumed if evidence is provided that the applicant and/or their spouse or de‑facto partner do have part-ownership.
The Tribunal interprets the Policy in this part to preclude consideration of an ‘eligible investment’ if the applicant is not indicated to be at least a part owner of that investment. The Tribunal acknowledges a broader definition applies in relation to the Part 7A.7 qualifications assessing the value of owned assets to include those of a spouse or de facto partner.
After the hearing the applicant provided a submission claiming she should have declared ‘eligible investments’ to include a Pension Insurance Plan B and Prosperity Whole Life Insurance products with CITIC Prudential and Excellence Life Insurance product with Taiping Life Insurance Co. These products were held by the applicant for more than 7 years having been purchased by the applicant prior to November 2013.
The Tribunal has reviewed the policy documents for these life insurance products and acknowledges that while each provides a ‘dividend’, the premiums are paid to purchase personal insurance cover. The Tribunal does not consider the products are for the purpose of producing a return in the form of income or capital gain. Accordingly the products are not ‘eligible investments’ as defined in cl 188.112.
On the evidence, the Tribunal finds the applicant held eligible investments of at least AUD100,000 for not less than 4 years immediately before the time of invitation to apply for the visa.
Accordingly, the points attributable under Part 7A.6 is 10 points.
Part 7A.7 – Financial Asset Qualifications
Points are available under this Part if the net value of the applicant’s and her spouse or de facto partner’s personal and business assets are not less than AUD800,000 in each of the 2 years immediately before the time of invitation to apply for the visa. Higher points are available for higher asset amounts.
The applicant claimed 35 points under this part based on the combined net value of her and her husband’s business and personal assets being not less than AUD2,250,000.
The delegate assessed the applicant was correct and attributed 35 points under this part.
Neither party disputes the figures for this part and the Tribunal accepts the applicants claim, supported by the delegates finding, that her combined net assets were not less than AUD2,250,000 for the 2 years immediately before the invitation to apply for the visa.
Accordingly, the applicant is attributed 35 points under this part.
Part 7A.8; Part 7A9; Part 7A.10 – Business Turnover; Innovation and Special Endorsement Qualifications
The applicant claimed no points under these parts.
Accordingly no points are attributed.
Conclusion on points
Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6D is:
7A.2 – Age Qualifications  15 points
7A.3 - English Language Qualifications  0 points
7A.4 - Educational Qualifications  10 points
7A.6 – Investor Experience Qualifications  10 points
7A.7 – Financial Asset Qualifications  35 points
7A.8 – Business Turnover Qualifications  0 points
7A.9 – Business Innovation Qualifications  0 points
7A.10 – Special Endorsement Qualifications  0 points
Total points  70 points
The applicant’s assessed score under the points system is therefore 70 points.
At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument IMMI 12/042. The applicant’s score on the business innovation and investment points test is not less than the number of points specified by the Minister.
For these reasons, the Tribunal is satisfied that the applicant meets cl 188.242.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa.
The second and third named applicants applied for their visas on the basis of being members of the family unit of the first named applicant. The Tribunal sets aside their decisions and remits their applications to be determined in accordance with the findings for the first named applicant.
DECISION
The Tribunal sets aside the decision and remits the applications for Business Skills (Provisional) (Class EB) visas for reconsideration, in accordance with the order that the first named visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:
·cl 188.242 of Schedule 2 to the Regulations.
The decisions for the second and third named applicants are set aside and remitted to be reconsidered in accordance with these orders.
Date(s) of hearing: 5 June 2025
Representative for the Applicant: Miss Yijie Lin

Attributes	Points claimed	Description
7A.2 - Age	15	At the time of invitation the applicant was at least 45 but less than 55 years old.
7A.6 - Investor Experience	15	The applicant held eligible investments with a value of AUD100,000 for at least 7 years immediately before the time of invitation.
7A.7 Financial Asset qualification	35	At least AUD2,250,000 in each of the 2 fiscal years immediately before the time of invitation.
65	Total points claimed