LEKSHMANAN (MIGRATION) - [2024] ARTA 114

LEKSHMANAN (MIGRATION) [2024] ARTA 114 (1 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicants:Ms Amirthavallii Lekshmanan
Mr Veerappan So Subramanian
Ms Kharthikaa V Subramanian
Ms Aishwariyalaksmi V Subramanian
Respondent:  Minister for Home Affairs
Tribunal Number:  2210108

Tribunal:Senior Member G Cranwell
Place:Brisbane
Date: 1 November 2024
Decision:The Tribunal remits the applications for Business Skills (Provisional) (Class EB) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:
·cl 188.222(1) of Schedule 2 to the Regulations.

Statement made on 01 November 2024 at 1:10pm
CATCHWORDS
MIGRATION – Subclass 188 (Business Innovation and Investment (Provisional)) visa – Subclass 188 – applicant’s assessed score under the points system is 85 points – applicant’s score on the business innovation and investment points test must be not less than 65 points – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 188.222
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 27 June 2022 to refuse to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a points based visa designed for applicants who have submitted an expression of interest and received an invitation to apply for the visa.
The first named applicant (the applicant) lodged an expression of interest for the Subclass 188 - Business Innovation and Investment (Provisional) visa on 21 September 2020 and was invited to apply for the visa on 15 January 2021. The visa application was lodged on 25 February 2021. The criteria for the grant of this visa are set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visas because the applicant did not achieve the necessary points in the ‘Business innovation and investment points test’ set out in Schedule 7A to meet cl.188.222(1) and therefore did not satisfy c.188.222.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 188.222(1).
The visa application form was completed indicating that the visa stream was the Business Innovation stream and by invitation from the Victorian government. The form was completed with information regarding the business and personal assets of the applicant and her spouse. The applicant provided details of two ‘main businesses’: AKS Consultants Pte Ltd (AKS) and Berkeley Holdings Pte Ltd (Berkeley). The industry type for both businesses was entered as professional, scientific and technical services. The applicant claimed an ownership of 80% in AKS and 100% in Berkeley.
At the time of the delegate’s assessment, the points specified was 65 points. The delegate found that the applicant was only entitled to 60 points, on the following basis:
7A2 – Age  20 points
7A3 – English language      5 points
7A4 – Educational  0 points
7A5 – Business Experience     15 points
7A7 – Financial Assets       0 points
7A8 – Business Turnover   5 points
7A9 – Business Innovation       15 points
7A10 – Special Endorsement   0 points
TOTAL:  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 children) 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.
On review, the Tribunal has assessed for itself the applicant’s entitlement to points under the specified parts of the Schedule 7A Points Test. The points specified by the Minister for this purpose remain at 65.
Does the applicant have the score specified?
Part 7A.2 – Age Qualifications
Points are awarded depending on the applicant’s age at the time that he or she was invited to apply for the visa. In this case, the applicant was invited to apply on 15 January 2021.
The applicant was born on 29 December 1977 and was therefore 43 at the time she was invited to apply for the visa. Accordingly, the Tribunal finds she is therefore entitled to 20 points for this part as she meets item 7A24, as she was not less than 40 and under 45 at the time she was invited to apply.
Part 7A.3 – English language qualifications
Points are awarded under this Part if, at the time he or she was invited to apply for the visa, the applicant had either vocational English (5 points) or proficient English (10 points), both of which are defined terms in the Regulations.
The applicant provided an IELTS tested dated 20 December 2020 with an overall band score of 6.0, with at least 5 in each of the four test components. Accordingly, the Tribunal finds that she is entitled to 5 points for this part as she meets item 7A31, as she had vocational English.
Part 7A.4 - Educational Qualifications
Points are awarded under this Part if, at the time he or she was invited to apply for the visa, the applicant met the requirements for either (a) the award of a trade qualification or degree by an Australian educational institution, or (b) the award of a bachelor qualification by an educational institution that is of a recognised standard (5 points); or (a) the award of a bachelor degree in business, science or technology by an Australian educational institution, or (b) the award of a Bachelor qualification in business, science or technology by an educational institution that is of a recognised standard (10 points).
The applicant provided evidence that she was awarded an International Higher Diploma in Computer Studies. There is no information before the Tribunal that this is comparable to the award of a Bachelor qualification. Accordingly, the Tribunal finds that the applicant is not entitled to any points under this part.
Part 7A.5 – Business Experience Qualifications
Under this Part, the applicant is entitled to 10 points if he or she has held one or more main businesses for not less than 4 years in the 5 years immediately before being invited to apply for the visa; or 15 points if he had held one or more main businesses for not less than 7 years in the 8 years immediately before being invited to apply for the visa.
The applicant provided evidence that she has held one main business for not less than 7 years in the 8 years immediately before the time of invitation to apply for the visa. The delegate awarded 15 points for this part as the applicant meets item 7A52, and the Tribunal concurs having reviewed the available evidence.
Part 7A.7 – Financial Asset Qualifications
Points are available under this Part depending on the net value of 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, in each of the two fiscal years immediately before the time of the invitation to apply for the visa.
The applicant provided a series of Forms 1139A: ‘Statement of Assets and Liabilities Position’ (SALP) on various dates. Relevant to the Tribunal’s consideration are SALPs as at 31 March 2019, 31 March 2020 and 15 January 2021.
The delegate’s approach was to accept certain assets set out in the SALP and not to accept other assets on the basis of whether or not sufficient supporting evidence was provided. The delegate accepted that the applicant had net assets of AUD 491,694 for 2019 and AUD 1,156,219 for 2020. On the basis of the assets accepted by the delegate, the applicant was not entitled to any points under this part.
For present purposes, the Tribunal need only consider the applicant’s claim in relation to loans to Berkeley which were not accepted by the delegate. Paragraph 3.9.5.3 of PAM3 provides that the net value of the assets of an applicant in a business are determined as follows:
calculate the proportionate share of the assets held by the applicant and/or spouse or de‑facto partner, then:
add
the balance of any loans advanced to the business by the applicant (if the directors or major shareholders have made any loans to the company, these should be itemised in the financial statements or in the notes to the accounts) and
deduct
the balance of any loans the business may have advanced to the applicant and
the value of any other loans the applicant may have taken out to finance their investment in the business not based on personal assets pledged as collateral ...
The applicant provided a letter from SMP Management Consultants Pte Ltd (SMP) dated 10 February 2021 in the following terms:
I hereby confirm that we have been the accountant to Berkeley Holdings Pte Ltd … since date of incorporation and this is to further confirm that the sum of S$2,020,850 recorded in the Company’s financial statements, for the financial year ended 31 August 2020, as Share Application amount is still due and payable to the shareholder, Ms Amirthavalliii Lekshmanan or to be capitalised in the form of shares at her option.
The delegate did not regard the letter from SMP as sufficient to demonstrate the value of the share application liability. However, the Tribunal considers that independent accountants are ordinarily well placed to provide reliable information in relation to the financial statements they prepare. Accordingly, it regards the letter from SMP as sufficient evidence that share application liabilities are due and owing to the applicant.
Further, the Tribunal notes that the financial statements for Berkeley as at 31 August 2019 show share capital of S 1,000 and a share application liability of S 2,700,000. As at 31 August 2020, the share capital was S 680,150 and the share application liability was S 2,020,850. The change represents the conversion of S 679,150 (US 500,000) of the share application liability into shares, which is recorded in the statement of cash flows and evidenced by share certificates provided to the Department.
Both sets of financial statements also record Berkeley as having an investment of S 2,700,000, which was described in the notes as:
Investments made in a private company in Singapore as in the form of a convertibles (sic) to mature into a share over the period of 3 years from investment date but now it has been extended until 2023.
There is no obvious way this investment of S 2,700,000 could have been funded in the absence of the S 2,700,000 provided by the applicant to Berkeley initially in the form of the share application liability.
Converting the share application liabilities into Australian dollars using the conversion rates used by the delegate, the value of the shareholder application liabilities were AUD 2,888,781 for 2019 and AUD 2,021,098 for 2020. In accordance with PAM, these amounts are to be added to the value of the applicant’s assets in the business.
For completeness, the Tribunal notes that the SALP as at 15 January 2021 continues to record a loan to Berkeley of S 2,020,850, which was equivalent to AUD 1,980,483 at the conversion rate stated. This amount is consistent with the SMP letter.
Accordingly, the Tribunal finds that the applicant is entitled to 25 points as she meets item 7A73, as she had not less than AUD 1,800,000 in each of the 2 fiscal years before the time of invitation.
Part 7A.8 – Business Turnover Qualifications
Points are awarded under this Part depending on the annual turnover of one or main businesses in which the applicant had an ownership interest, which differs depending on the date of the visa application. The relevant period is at least 2 of the 4 fiscal years before the applicant was invited to apply for the visa.
The applicant provided evidence that the annual business turnover of the main businesses was not less than AUD 500 000 in at least 2 of the 4 fiscal years immediately before the time of invitation. The delegate awarded the 5 points for this part as the applicant meets item 7A81, and the Tribunal concurs having reviewed the available evidence.
Part 7A.9 – Business Innovation Qualifications
Points are awarded under this Part depending on whether, at the time of the invitation to apply for the visa, the applicant had 1 or more patents, registered designs, and/or trademarks that were registered not less than 1 year before that time and were used in the day to day activities of the main business, and/or had at least 1 business operating in a formal joint venture agreement relating to export trade and/or operated a business that had an average annualised growth in turnover exceeding 20% per annum over 3 continuous fiscal years and in at least 1 of those fiscal years, employed 10 or more employees (or equivalent). In addition, points could be allocated if the applicant ran a start up business, product commercialisation, business development or business expansion in their home country that had been awarded government funding in that country worth at least AUD $10,000.
The applicant provided evidence of a registered trademark and a joint venture. The delegate awarded 15 points for this part, being 10 points for meeting item 7A92 and 5 points for meeting item 7A93. The Tribunal concurs having reviewed the available evidence.
Part 7.A10 – Special Endorsement Qualifications
Point are awarded under this Part depending on whether, at the time of the invitation to apply for the visa, the nominating State or Territory government agency had determined that the applicant’s proposed business was of unique and important benefit to the State or Territory where that agency was located.
The Tribunal finds no evidence of any such endorsement by the nominating State or Territory government agency.
It therefore finds that the applicant is not entitled to any points under this Part.
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 7A is:
7A.2 - Age  20 points
7A.3 - English language  5 points
7A.4 - Education  0 points
7A.5 – Business experience  15 points
7A.7 – Financial asset  25 points
7A.8 – Business turnover  5 points
7A.9 – Business innovation  15 points
7A.10 – Special endorsement  0 points
TOTAL:  85 points
The applicant’s assessed score under the points system is therefore 85 points.
The Minister has specified that for subclauses 188.222(1) and 188.242(1) of Schedule 2 to the Regulations, the applicant’s score on the business innovation and investment points test must be not less than 65 points.
As 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, the applicant meets cl 188.222(1).
DECISION
The Tribunal remits the applications for Business Skills (Provisional) (Class EB) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:
·cl 188.222(1) of Schedule 2 to the Regulations
Representative for the Applicant: Mr Juan G Rincon (MARN: 0745660)